1 On the completion of oral argument on 21 November 2013, the Court granted the appellant leave to appeal against conviction on the first ground of appeal; allowed the appeal; quashed the convictions and sentences that had been imposed; and ordered a retrial. The Court indicated that it would later provide reasons for those orders.

2 These are my reasons for joining in those orders.

3 Following a trial in the County Court, on 25 June 2010 a jury found the appellant guilty of 17 charges of sexual offending - including incest, indecent assault, gross indecency and similar - against his biological daughters KJ and LJ. The jury found him not guilty of four other charges, and could not reach verdicts on a further two charges. On 6 September 2010 the trial judge sentenced him to a total effective sentence of 11 years' imprisonment upon which was fixed a non-parole period of eight years' imprisonment.

4 The appellant sought leave to appeal against his conviction on four grounds. Following the Court's indication that it was minded to allow the appeal on the first ground, the other grounds were abandoned. Ground 1 was expressed as follows:

1. The learned trial judge erred in allowing the Crown to introduce cross-examination of the applicant and in rebuttal:

(a) evidence that the applicant assaulted and raped the complainant when the family lived in the USA;

(b) evidence that the applicant had assaulted KJ during an argument immediately before he and his wife separated;

(c) evidence that KJ had been constantly in fear of assault by the applicant;

(d) evidence of pornographic material having been downloaded to the applicant's computer.

5 The appellant was born on 8 February 1946. His two daughters, KJ and LJ, were born respectively on 8 January 1979 and 17 April 1980. The offences were alleged to have occurred between 1984 and 1995, when the appellant was aged between 38 and 49 years; KJ was aged between 5 and 16 years; and LJ was aged between 4 and 15 years. JJ, the children's mother, and the appellant wed in 1971, and separated in 1994. They had one other child, HJ, a son.

6 The appellant has several tertiary qualifications. He was employed by a variety of large companies as a systems analyst and in management roles. Between August 1985 and September 1988 the family lived in Rochester, New York, in the United States, where the appellant was working.

7 When the family returned to Melbourne, KJ and LJ attended a private school in Toorak near the family home. The family regularly visited a ski lodge at Mount Buller.

8 When the appellant and his wife separated in February 1994, the three children remained with their mother. The separation was brought about by an episode in which KJ made a derogatory remark to the appellant in the course of an argument, and he hit her in the face. This caused the appellant's wife to leave the house with the children and go to her mother's. (The prosecution did not seek to lead evidence about this episode as part of its case.) The appellant remained in the family home until it was sold and he then moved to a house in Caulfield. He continued to have regular contact with LJ until the children's living arrangements changed in 1998. The appellant had limited contact with KJ. In 1998 LJ moved in with her grandmother; HJ moved in with the appellant; and KJ remained with her mother.

9 No complaint of sexual impropriety was made until 2003, when LJ, then employed as a youth worker for a church, disclosed to a minister in the course of counselling that she had been sexually abused by the appellant. Prior to this, LJ had discussed other experiences of sexual abuse with the minister without mentioning the appellant. In 2005, LJ and KJ discussed the matter. KJ, and shortly afterwards LJ, disclosed to their mother that they had been abused by the appellant. They sought assistance from a sexual assault counselling service. In 2006, LJ confronted the appellant at a meeting supervised by the minister who had been counselling LJ. It was alleged that the appellant made implied admissions at this meeting, although the appellant denied that what he said was capable of this interpretation.

10 LJ first contacted the police in late 2006. The appellant was spoken to by police in February 2007 and again later that year in October, and made no comment records of interview. Charges were laid in March 2008.

11 At trial, the appellant was found guilty of six offences against LJ. Convictions were returned on one count of gross indecency (count 2), two counts of indecent assault (counts 3 and 5), and three counts of incest (Counts 4, 6 and 7). In summary, the convictions embraced the following conduct:

• Count 2: Between January and December 1984, at the family home in Ripponlea, the appellant unzipped his pants and exposed his penis to LJ in the girls' bedroom.
• Count 3: Between April 1989 and April 1991, at the family home in Prahran, LJ, attired in her nightie without any underwear, was sitting on the appellant's knee watching a movie when he inserted a finger into her vagina.
• Count 4: In mid 1992, in Prahran, LJ was at home in bed with tonsillitis, when the appellant climbed on top of her and penetrated her vagina with his penis.
• Count 5: between April 1993 and April 1994, in Prahran, the appellant tied LJ to the bed while she was naked and made her assume sexual explicit poses while he photographed her.
• Count 6: In 1995, at Mt Buller, while LJ was sitting on a top bunk naked from the waist down, the appellant held her legs apart and licked the inside and outside lips of her vagina.
• Count 7: On Fathers' Day in 1995 or 1996, at Mt Buller, LJ, who was underage, went out and drinking with a friend, when the appellant collected her from the bar and walked her back to the lodge. He pushed LJ onto the double bed and penetrated her vagina with his penis.

12 There were 11 convictions with respect to KJ, which included one count of gross indecency (count 12), eight counts of incest (counts 13 to 16, 18, 19, 21 and 23), and two counts of committing an indecent act (counts 17 and 24). In short compass, the conduct in the counts included the following:

• Count 12: Between September 1988 and December 1989, the family visited the appellant's cousin's farm at Robinvale. As his daughters played in a shed, the appellant came in with his camera and directed the girls to touch each other on the breasts and adopt sexual poses while he photographed them.
• Count 13: Between January 1992 and December 1993, in Prahran, KJ had come home from school and was changing out of her uniform. When her stockings were partly off and her underwear was down, the appellant entered the bedroom and placed his fingers into her vagina.
• Count 14: During the same period as count 13, KJ had gone to bed. The appellant came in and lay on top of her. KJ was somewhat overweight, as was the appellant. The appellant put his penis inside KJ's vagina to the point of ejaculation. She felt a lot of force and pressure on her body and the appellant's 'man boobs' on top of her.
• Count 15: Between January 1992 and December 1994, at home in Prahran one Saturday afternoon, KJ, with the appellant's knowledge, made arrangements for a friend to come over. The appellant went into KJ's room. He made her lean over the end of the bed and from a standing position penetrated her vagina with his penis. KJ's friend arrived as the appellant was thrusting in and out of KJ's vagina. He withdrew, closed the bedroom door and told the friend to wait.
• Count 16: Between January 1992 and December 1994, on another Saturday afternoon, the appellant got into KJ's bed and inserted his penis into her vagina. While balancing over KJ, as a result of clumsiness the appellant lost his grip. His hand hit one of her breasts, causing pain and a bruise.
• Count 17: Between January 1992 and January 1993, KJ was lying on her bed masturbating while the appellant watched. He encouraged her to orgasm, saying 'oh yeah' and 'good girl'.
• Count 18: Between January 1993 and January 1994, when the appellant took the three children skiing at Mt Buller, KJ was in the double bed at the lodge. The appellant took off his pants and got into bed with her. He inserted his penis into her vagina from behind until he ejaculated.
• Count 19: In August 1995 at Mt Buller, the appellant lifted KJ up off the ground by grabbing hold of her tights at the side of her hips. He put his hand inside her tights and underpants and placed his fingers in her vagina, which she found very painful.
• Count 21: Between December 1993 and February 1994, at a holiday house in Jan Juc, whilst they stood in one of the bedrooms, the appellant penetrated KJ's vagina with his penis from behind. This was the first occasion upon which they had intercourse whilst both in a standing position.
• Count 23: Between December 1994 and January 1995, at Scrubby Creek, Nariel, the appellant had been drinking while visiting some friends. At dusk the appellant penetrated KJ's vagina with his penis from behind. They were both standing, but he was unsteady on his feet. KJ, because of her weight, had boils and sores on her legs which were aggravated when her legs rubbed together. She tried to move her body so that she could avoid the pain of the boils and sores. Penetration occurred for only a short time although the appellant tried for five to ten minutes. The pain became too much. KJ ran to the bathroom to discover one of the boils on her thigh had broken open and blood and pus were seeping out.
• Count 24: At Scrubby Creek on New Year's Eve, the appellant had been drinking. At dusk, he leaned KJ against a tree. His pants were open and his erect penis was exposed. KJ could not remember the appellant trying to penetrate her nor that she touched his penis.

13 The defence was that none of the sexual activity had occurred. Evidence of a neuropsychologist, Dr Andrew Gibbs, that KJ and LJ suffered from a shared delusion, was part of the defence case. The prosecution relied on Professor Louise Newman, a psychiatrist specialising in childhood trauma, to refute the defence claim.

Permitting evidence of bad character - ground 1

14 Throughout the trial the judge made a number of rulings. One ruling, Ruling No 3, was devoted to evidence of uncharged acts. The prosecution sought to rely on a large number of uncharged acts as tendency and coincidence evidence in support of the accounts of the complainants. Many of the uncharged acts were said to have occurred in America between 1985 and 1988 when the family was living there. The defence objected to the admission of the uncharged acts and to the prosecution's reliance on tendency and coincidence evidence. The trial judge admitted a number of uncharged acts but refused to admit others. In particular, he refused to admit evidence of KJ's violent rape by the appellant when she was aged eight years and the family was living in New York State. He said:[2]

In any event, any probative value which the evidence may have is, in my view, substantially outweighed by its prejudicial effect. I must consider what prejudicial effect this evidence may have on a jury. By its nature and the ferocity of the attack upon such a little girl, I consider the evidence may seriously colour and inhibit the ability of the jury to objectively assess the weight of the evidence in respect of charged counts and to perform the challenging task of adhering to my directions, including as to uncharged acts. ... Having reached that conclusion, I should note that, depending on the forensic purposes pursued by the defence - particularly as to the narrative of delayed complaint and the allegation of shared delusional disorder, alternatively collusion - the prosecution may seek to lead this evidence in re-examination as relevant to some or all of these issues. The defence is on notice as to this potentiality.

15 The prosecution case having closed, after the appellant's evidence-in-chief had been completed, the prosecutor - prior to cross-examination commencing -sought leave to cross-examine the appellant generally as to character. A combination of three factors was said by the prosecution to justify that course. First, in opening the defence case, counsel had asserted that the appellant was a good father. Secondly, when the prosecution's allegations concerning the circumstances of count 16 were raised with the appellant in evidence-in-chief, and in particular, the suggestion that he had penetrated KJ's vagina with his penis and through inadvertent clumsiness had also hit KJ in the breast, the appellant replied, 'No, I've never hit my daughter [KJ]'. Thirdly, the appellant said that he did not have an interest in pornography. That evidence arose because LJ had given evidence of uncharged acts, which included evidence that the appellant kept adult pornographic videos at the Caulfield house and on one occasion she watched a pornographic movie with the appellant. The appellant was asked by defence counsel whether he had had sex with LJ at the Caulfield address, to which he responded: 'I have never had sex with [LJ] ever. It's repugnant to even think about it'. His counsel asked, 'Did you have pornographic movies at [the Caulfield address]?', which elicited the response, 'I didn't have pornographic [sic], I'm just not into pornographic movies. Not my, not my thing at all'. Application was made by the prosecutor to cross-examine the appellant about violent behaviour and his professed lack of interest in pornography. The violent behaviour sought to be cross-examined on was the incident in 1994, when the appellant and JJ were separating, in which the appellant hit KJ in the face, and the occasion in the United States where the appellant punched and kicked KJ and violently raped her.

16 In his ruling on the application, Ruling No 11, the trial judge held that defence counsel's remarks about the appellant being a good father had not raised good character generally. His Honour found, however, that the appellant's evidence that, 'I've never hit my daughter' [KJ], was a general statement suggesting that on no occasion had he ever been violent towards his daughter. Further, the trial judge found that the appellant's assertion that he was not 'into' pornography was a broad statement that he had no interest in pornography. Ultimately the trial judge granted leave to the prosecution to cross-examine the appellant on - and call rebuttal evidence with respect to - the allegations of violence against KJ (both hitting her at the time of his separation, and the violent rape in the US), and concerning his accessing and possession of pornography. His Honour said, 'The evidence of the alleged violence to [KJ] and of the possession of the pornographic material, or the accessing of that material, if accepted by the jury, would undermine or diminish the good character advanced by the accused'. The trial judge said that he was 'satisfied that in giving the answers which he gave, the accused was intending to not only refute the specific allegations, but generally to put forward his good character'.

17 In the result, the prosecutor cross-examined the appellant about these matters. Moreover, evidence was given in rebuttal by KJ about occasions upon which the appellant had been violent towards her, and about the incident that occurred when the family was living in the US when she was eight years old. She gave evidence that she had said something to anger the appellant and then had gone up to her room. The appellant followed, grabbed her throat, slapped, hit and kicked her, and violently raped her. Afterwards she had showered, this being the first time she could remember showering after being sexually abused by her father. KJ recalled that her mother was affectionate and comforting after the incident. She also gave evidence that in 1994, on the night she, her mother and siblings left the family home, she had been involved in a dispute with the appellant and the appellant hit or slapped her across the face. This was the first time he had hit her in front of other people.

18 With due respect to the trial judge, in my opinion the appellant's responses to questions asked of him by his counsel, which were the platform from which the prosecution were permitted to cross-examine him as to character, and to lead very damaging evidence against him in rebuttal, did not raise his good character. The prosecutor should neither have been permitted to cross-examine as to character on the strength of these responses, nor to lead evidence in supposed rebuttal of good character.

19 Sections 110 and 112 of the Evidence Act 2008 provide:

110 Evidence about character of an accused

(1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by an accused to prove (directly or by implication) that the accused is, either generally or in a particular respect, a person of good character.

(2) If evidence adduced to prove (directly or by implication) that an accused is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the accused is not generally a person of good character.

(3) If evidence adduced to prove (directly or by implication) that an accused is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the accused is not a person of good character in that respect.

...

112 Leave required to cross-examine about character of accused or co-accused

An accused must not be cross-examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave.

20 The effect of ss 110(2) and (3), is that if the accused adduces evidence to prove, either directly or by implication, that the accused person is of good character generally or in a particular respect,[3] the tendency rule[4] and credibility rule[5] (among others) do not apply to evidence to prove that the accused is not a person of good character generally or in that particular respect. Moreover, if it is sought to adduce the evidence of bad character through cross-examination, s 112 provides that leave is required in order to cross-examine about evidence of a kind referred to - that is, that the accused is not of good character. The general discretions found in ss 135 and 136 of the Act, to exclude, or to limit the use of, evidence which may be 'unfairly prejudicial', apply to evidence to rebut good character, as does the mandatory obligation in s 137 to 'refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused'. Further, when considering the grant of leave under s 112, s 192 of the Act is engaged. Therefore the judge, when considering whether to grant leave (or to grant it on 'such terms as the court thinks fit'), must take into account 'the importance of the evidence in relation to which the leave, permission or direction is sought',[6] and 'the extent to which to do so would be unfair to a party'.[7]

21 Thus in this case the trial judge was required to consider first whether, directly or by implication, the appellant had adduced evidence of good character (either generally or in a particular respect). If the appellant had adduced such evidence, when dealing with the application to cross-examine under s 112, the judge next had to consider whether to grant leave, and, if so, whether to place limitations on the grant of such leave. In so doing, the judge had to take account of the importance of the evidence, and the extent to which the grant of leave would be unfair to the appellant. With respect to both the cross-examination, and the evidence sought to be led in supposed rebuttal of good character, the judge had a discretion to refuse to admit the evidence if its probative value was substantially outweighed by the danger that it would be unfairly prejudicial,[8] or to limit the use of the evidence if there was a danger that a particular use might be unfairly prejudicial to the appellant.[9] Moreover, the judge had an overarching obligation - not a discretion - to exclude the evidence if its probative value was outweighed by the danger of unfair prejudice.[10] Had he properly carried out the exercise required of him, in my opinion the judge would have refused leave to cross-examine the appellant, or to lead evidence in supposed rebuttal of evidence of good character.

22 I can detect no indication in the judge's reasons for permitting the cross-examination that he properly considered the criteria spelled out in s 192 of the Act bearing on the grant of leave. Nor - apart from his reference to his earlier ruling, Ruling No 3 - do I detect anything to suggest that, in considering the anticipated cross-examination or rebuttal evidence, his Honour distinctly considered the discretions reposing in him under ss 135 and 136, or his mandatory obligation arising under s 137 to exclude the proposed evidence if its probative value was outweighed the danger of unfair prejudice.

23 It is difficult to understand how, in the circumstances, the judge could have reached the conclusion that the appellant's responses earlier referred to could properly have been said to have put his character in issue. They were nothing more, in my opinion, than a denial of the allegations of the particular conduct alleged against him in the count about which he was being questioned. Moreover, the questions (and answers) cannot, in my view, be said to evince a conscious decision to intentionally and deliberately adduce positive character.

24 In considering when good character is raised, in PGM,[11] Barr J (with whom McClellan CJ at CL and Buddin J agreed) said:

The raising of good character requires a conscious decision on the part of the accused. It has been held that such evidence must be intentionally and deliberately adduced for the purpose of raising character before the Crown may be granted leave to cross-examine: Gabriel v The Queen (1997) 96 FCR 279.

25 Various relevant considerations which arise when an accused raises good character were identified in Thomas[12] (albeit the case was decided in a different statutory context). Neave JA (with whom Maxwell P and Mandie AJA agreed), having reviewed a number of authorities, said:[13]

[30] The points made above can be summarised as follows.

(a) The test for determining whether the good character of the accused has been put in issue, is not whether a reasonable jury would think that this is the case, but whether the judge is of the opinion that it does so;

(b) counsel's purpose in leading the evidence is relevant, but is not determinative;

(c) the policy basis for allowing admission of evidence of bad character, where the accused has put his or her character in issue, is to ensure fairness to the prosecution by permitting that evidence to be rebutted;

(d) at common law the fact that the accused has attacked the character of a prosecution witness does not, without more, expose him or her to admission of evidence of bad character; and

(e) where the threshold requirement for the admission of evidence of bad character is satisfied, the court has a discretion to exclude it. ...

26 Emphasising that a trial judge must approach any exercise of discretion to permit cross-examination on an accused's bad character with a great deal of circumspection, Mason CJ, Brennan, Wilson and Dawson JJ said in Phillips (again in a different statutory context):[14]

It is right to stress the exceptional character of a case in which the credibility of an accused person is open to be attacked by reference to his bad character or previous convictions and it is undoubtedly right that the discretion of a trial judge to permit such an attack be sparingly and cautiously exercised. Although the purpose for which such evidence is admitted is confined to questions touching the credibility of an accused person and is not to be accepted by the jury as persuasive of his guilt of the offence charged and notwithstanding that the trial judge will direct the jury clearly as to the use to which the evidence may be put and the use to which it may not be put (cf. Reg. v. Beech (1978) 20 SASR 10, at pp 420-423) there will always be a keen appreciation that the admission of the evidence may in the absence of countervailing considerations operate unfairly to his prejudice.

27 Guidance as to when permission might be given to the prosecution to lead evidence in rebuttal of good character can be derived from cases decided at common law (paying due heed, of course, to the present statutory context). Such a case was Perrier.[15] In Perrier it was held that the trial judge had been correct to permit the prosecution to lead evidence in rebuttal of the applicant's good character. The applicant had been charged with importing heroin. His counsel, despite being warned by the prosecutor about the course he was adopting, read a letter to a prosecution witness in the course of cross-examination which contained the opinion that the applicant was honest and reliable, and had a 'repugnance to be associated with anything concerning drugs'. The trial judge held that the applicant had put his character in issue and permitted the prosecution to lead evidence of the applicant's prior convictions. Brooking J (with whom Murphy and McGarvie JJ agreed), in refusing the application for leave to appeal against conviction, made a number of observations which are apposite to the present case. Thus his Honour remarked:[16]

The common law rule is often expressed by stating that if the accused elicits evidence of his good character the Crown may rebut that evidence by calling evidence of his bad character. That the principle should be stated in this way is understandable since in practice the question will ordinarily arise because the accused has elicited evidence of his own good character. But the principle is a wider one. It extends to mere endeavours to establish a good character ...

In general, the Crown cannot lead evidence of the accused's bad character; the evidence is probative but is excluded for reasons of policy: Attwood v R [1960] HCA 15; (1960) 102 CLR 353, at pp. 359-60. But if the accused attempts to establish his own good character, he puts that character in issue, and evidence of bad character is admissible. Where the Crown, the accused having put his character in issue, seeks to prove bad character not by the cross examination of the accused but in some other way, the requirement of obtaining the permission of the trial judge contained in s399(6)[18] is inapplicable. It is not a matter of obtaining leave or permission. The conduct of the accused in raising the issue of his character has made evidence of bad character admissible.

The safeguard provided by the law in this situation is not a statutory requirement of permission or leave but the general principle that the trial judge always has a discretion to exclude admissible evidence tendered by the Crown ...

29 So far as the exercise of discretion was concerned, his Honour observed:[19]

Where the accused suggests he is of good character and the Crown proposes to tender evidence of previous convictions, a highly important consideration in exercising the discretion is the relative weight of on the one hand the advantage gained by the accused by the steps which have been taken by him or on his behalf in an endeavour to show his good character, and on the other hand the degree of prejudice which may result to the accused from proof of the prior convictions.

30 At the risk of repetition, it is clear from the trial judge's ruling that he was of the opinion that the good character of the appellant had been put in issue. And as I have said, in my view the appellant did no such thing.

31 But even if I am wrong about that, and counsel's purpose was to elicit evidence of good character, and the evidence adduced actually went to good character, then I am still firmly of the opinion that the cross-examination should not have been allowed. The judge had a discretion whether to allow the cross-examination, the occasion for its exercise being unusual. When a comparison is made of the relative advantage to the defence case and concomitant damage to the prosecution case from the supposed evidence of good character, and regard is then had to the very great prejudice occasioned to the appellant by the cross-examination, it is plain that the proper exercise of discretion dictated that the cross-examination not be allowed.

32 Moreover, there was even less occasion to permit rebuttal evidence to be given. The stage at which the evidence was led, coupled with its nature, led the trial to become seriously unbalanced. For the relatively benign evidence of supposed good character to have been met with the grossly prejudicial evidence of the violent rape of his daughter when an eight year old, would have been devastating to the defence case, and unfairly so. The probative value of the evidence clearly was outweighed by the prejudice it would have engendered.[20]

33 The trial judge's ruling does not appear to reflect consideration of the question of unfairness caused to the appellant. His Honour had earlier acknowledged in Ruling No 3 that the evidence of the violent rape in the US was highly prejudicial. It did not become less so following his consideration of the prosecutor's application to cross-examine and call rebuttal evidence about it. Indeed, its late introduction into the trial made it potentially more so. The trial judge was required to carefully balance any disadvantage to the prosecution case from the evidence of good character against any unfair advantage to the defence case. Even were the appellant's evidence the adduction of good character, it was so insignificant in the overall trial as to make introduction of the evidence touching bad character gravely disproportionate.

34 In assessing any damage to the prosecution case, or any unfair advantage to the appellant, from the adducing of purported evidence of good character, it is worth remembering the purposes for which good character might be put. The judge essentially was correct when, as part of Ruling 11, he said:

Evidence of good character, particularly if led in the evidence of an accused, has two well-known features. First, it gives rise to the unlikelihood of guilt. Indeed, it gives rise to a presumption that an accused is less likely than more likely to have committed the offence. And secondly, it goes in support of the accused's credit in his denial of the charges.

35 Recognising, as he did, that adduction of evidence of good character potentially carried a twofold advantage for the appellant, had the judge wished to

minimise those advantages, or to redress any disadvantage to the prosecution, he could have achieved that purpose by withholding the directions to the jury that evidence of good character might otherwise command. The trial judge does not seem to have considered adopting that expedient, and counsel did not suggest it. Rather he adopted the drastic course of permitting rebuttal evidence.

36 It might be said that the judge had flagged the possibility of the evidence being allowed into the case depending on the course taken by the defence.[21] But in my opinion, counsel would not have foreseen that his questions would have been viewed by the judge as defiant of his warning. I note in this regard, that the judge's 'warning' in Ruling No 11 seemed to be limited to 'to the narrative of delayed complaint and the allegation of shared delusional disorder, alternatively collusion', not evidence of good character.

37 To summarise, in my opinion the appellant did not open up his character in the course of answers given in his evidence-in-chief. But even if he did, in the proper exercise of discretion the judge should not have permitted the prosecution to cross-examine and call rebuttal evidence in the manner that occurred.

38 There has been a substantial miscarriage of justice.[22] The convictions must be set aside.

39 For these reasons, I joined in orders which resulted in the appeal being allowed and the convictions being quashed.

40 I agree that leave should be granted and the appeal allowed for the reasons

41 If by any chance it can be said that the appellant had actually put his good character in issue, I do not see how, as a matter of logic, he could be shown to be a person not of good character by the leading of evidence of another uncharged act

from the same complainant. Rebuttal cannot flow from an assertion from the person whose credit is fundamentality in issue in the trial.

42 If by any chance the breadth of s 110(2) and (3) could be interpreted as allowing such evidence, I do not believe that it had any probative value let alone probative value which could have exceeded its extreme prejudice in this case.

43 It may have been that leave to cross-examine the appellant about the earlier assault and the pornographic material found on his computer could have been granted whether he had put his character in issue or not.

44 In fact the appellant accepted that he had struck his daughter at the time he separated from his wife and admitted that there was material on his computer from which an adult pornography website could be accessed.

45 It does not appear to me that there had been any attempt by the prosecutor to raise these matters with defence counsel so that he might have clarified the answers which he had earlier given. If that was not done it ought to have been done.

46 The other matter I wish to comment about is this. This trial was in its 23rd day at the time that the prosecutor made his application. It was likely that the trial would proceed to something like its 30th day before verdict.[23] I regard the application to rebut an assertion of general good character by the leading of evidence of uncharged acts from a complainant in the trial as completely novel. I cannot see the potential damage done to the prosecution case by the alleged assertion by the applicant of his good character, which was in truth no more than an emphatic assertion that he had not committed these offences. I believe that the application to

cross-examine about the uncharged acts and lead rebuttal evidence about it should not have been made.

47 I have had the advantage of reading in draft the reasons of Priest JA with which I agree. I joined in the orders the Court made on 21 November 2013 essentially for the reasons his Honour has given. I also agree with the further remarks made by Coghlan JA. I wish to add some observations.

48 As Coghlan JA has noted, when the prosecutor made his application on the issue of the appellant's character, the trial was in its 23rd day. The verdict of the jury was delivered on the 33rd day - in the sixth week of the trial. A re-trial has now been ordered by this Court. That means that allegations of serious sexual offences within a family over a period of some 11 years will have to be re-litigated and, in all likelihood, over a similar trial period. For all concerned this is a very serious consequence and the result was entirely avoidable.

49 First, I note that the style by which the appellant chose to deny the allegations made against him in his evidence in chief was quite emphatic. As I pointed out to counsel for the respondent during argument in this Court, the appellant often began his answers with the phrase, 'I have never...'. There are numerous examples of this. I respectfully agree with Priest JA that by his answers to those questions or any of them, the appellant did not put his character in issue. In my opinion, he was simply making emphatic denials even accompanied, as they were, by the physical 'shiver' which apparently occurred.

50 However, let it be assumed that Priest JA and I are both wrong about that. In the case of Perrier,[24] counsel for the accused read into evidence a document which clearly went to his client's character. At an early stage of the reading, the prosecutor twice, soto voce, cautioned counsel for the accused about what he was doing. The

document had not been identified or tendered. Part of the caution from the prosecutor included 'watch it'. Despite the advice, the reading continued with the inevitable detrimental consequence.

51 In this case, the prosecutor left making his application to the trial judge until after counsel for the appellant had opened the evidence he was about to lead and the evidence-in-chief of the appellant was completed. I do not understand that counsel for the appellant had any notice of the consequences of his opening and questioning until the application was made. Clearly by the time the prosecutor made his application, he had determined that he wished to cross-examine the appellant about, among other matters, the US incident and, in the likely event that the appellant denied the occurrence of that incident, lead evidence of it by way of rebuttal on the issue of character assuming the trial judge upheld the application. The significance of that occurring at that time of the trial and the dangers of it must have been obvious. Assuming the appellant denied the allegation in cross-examination, then evidence would be led in rebuttal after the defence case had closed with the jury understanding that something both unusual and dramatic had happened. That is what occurred and the evidence from the complainant about this inadmissible and dramatic event was the last thing the jury heard from the witness box. It is very likely that the jury were significantly influenced by what had occurred.

52 The prosecutor could have raised his concerns with counsel for the appellant after the brief opening address or at the first stage of the evidence in chief when the appellant's style of answering led the prosecutor to the view that he was putting his good character in issue. Such a course might have avoided this consequence. Resort might even have been had to s 192A of the Evidence Act 2008 for an advance ruling or finding. In its reports on the Uniform Evidence Law, the Australian Law Reform Commission identified just this situation as being one where such a procedure would be useful.[25]

53 In my opinion, in such circumstances prosecutors have a significant stake in ensuring that a trial such as this remained fair and, as far as possible, without risk of prejudice and appealable error. The authorities to which Priest JA has referred highlight, among other considerations, the caution which is required to be applied to an application such as was made here.

54 With great respect, in this case it is the dramatic and potentially overwhelming consequences of permitting the course of action proposed by the prosecutor and the evidence he sought to put before the jury that, frankly, makes it all the more surprising that the judges discretion, let alone the considerations raised by ss 135, 136, 137 and 192(2)(b) of the Evidence Act 2008, was barely raised in argument on the application being made, apart from oblique references by the prosecutor[26] and counsel for the applicant.[27] Significantly and unfortunately that discretion to exclude the evidence was not referred to at all by the judge in his ruling and, I conclude, was not considered. Albeit that the Evidence Act 2008 had come into effect on 1 January 2010, the general principle that a trial judge always has a discretion to exclude admissible evidence[28] is not a new concept.[29]

55 As Priest JA has pointed out the evidence of that dramatic and violent incident in the United States had been properly excluded in Ruling No 3 because, whilst extremely prejudicial it was lacking in probative value. I agree with both Priest and Coghlan JJA that the balance of those qualities had not altered when it was admitted for the purpose of Ruling No. 11.

[1] To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has bee anonymised by the adoption of a pseudonym in place of the name of the applicant.

[3] See Bishop v R [2013] VSCA 273.

[4] Unless certain requirements are satisfied, generally the tendency rule in s 97(1) provides that '[e]vidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind'.

[5] By s 102, generally credibility evidence is not admissible. Credibility evidence is defined in s 101A.

[6] Evidence Act 2008, s 192(2)(c).

[7] Evidence Act 2008, s 192(2)(b).

[8] Evidence Act 2008, s 135.

[9] Evidence Act 2008, s 136.

[10] Evidence Act 2008, s 137.

[11] PGM v R [2006] NSWCCA 310; (2006) 164 A Crim R 426, 434 [35] (emphasis added).

[12] R v Thomas [2006] VSCA 167.

[13] Ibid [30] (citation omitted; emphasis added).

[14] Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45, 57-8 (emphasis added).

[15] R v Perrier (No 1) [1997] 1 VR 697 ('Perrier').

[18] The effect of the now repealed s 399(5)(b) and (6) of the Crimes Act 1958 was that an accused person giving evidence in his defence could not be asked, and if asked, could not be required to answer, 'any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character', unless he had 'personally or by his advocate asked questions of the witnesses for the prosecution ... with a view to establishing his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution', and the leave of the trial judge had first been sought and obtained. (Footnote not in original.)

[20] Evidence Act 2008, s 137.

[21] Gabriel v R (1997) 76 FCR 279, 298 (Higgins J).

[22] Criminal Procedure Act 2009, s 276(1)(b); Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, [26]; Andelman v The Queen [2013] VSCA 25 [85].

[23] The jury returned verdicts on the 34th day.

[24] R v Perrier (No. 1) [1991] VicRp 37; [1991] 1 VR 697.

[25] Uniform Evidence Law (ALRC 102) (Australian Law Reform Commission, 2006) at [16.104].

[27] See for example Transcript at 1624-5.

[28] We have concluded that the evidence was not admissible but on the assumption that it was.

[29] See R v Perrier (No. 1) [1991] VicRp 37; [1991] 1 VR 697 at 703 per Brooking J.