JV v R

The Crown case at trial

1. The complainant's mother AS and the applicant's former wife SR are sisters. At the time of the offences, the complainant was the applicant's niece by marriage. AS and SR had a third sister, MB, who is the mother of KB. KB is therefore the complainant's cousin. KB is only about 18 months younger than the complainant and the two girls were close. The extended family all holidayed together during the relevant time periods particularised on the indictment.
2. The first three offences were said to have occurred on the same day, at a place described as "Tuckers Rock". That day was on a date between 20 November 2004 and 19 March 2007, at which time the complainant was aged either eight, nine or ten years of age. The complainant's family and the applicant's family had gone cycling or bushwalking. During the day, the applicant and the complainant became separated from the rest of the group.

Counts 1-3

1. The complainant's evidence in chief at trial was largely adduced in the form of the recorded interview she made with police in 2011. The complainant was 18 years old by the time she gave evidence at trial in 2015.
2. The complainant told police that the first assaults occurred on a bushwalk with her family and the applicant's family when she was "between five and seven" years of age. She was alone with the applicant. He sat behind her when she was having a drink of water and put his hands down her pants. It was daytime. She was sitting on the ground with her legs crossed and he sat behind her or just "a little bit to the side behind". The applicant rubbed her vagina with his hand, touching her vaginal area "outside and inside a little bit" (Count 1).
3. The complainant told police that it happened again later the same day. What the applicant did on the second occasion was the same as the first time; that is, he put his hands down her pants. He was seated behind her again. She did not recall how he got there. He did the same thing as she had described in respect of Count 1 (Count 2). The complainant's next memory was the applicant sitting behind her on a slope towards the beach, when "he did the same thing" (Count 3). She was asked what she meant by "the same thing". She responded, "He got his hands down my pants and he's rubbing my vagina…a bit of both…the inside and outside." The complainant marked on a diagram tendered as Exhibit 1 what she meant by "the inside and outside" of her vagina. The markings are consistent with penetration of the complainant's vagina. He said to her, at the time of the actions comprising Count 3, "You shouldn't let me do this."

Timing of these three offences

1. When police interviewed the complainant she told them that she did not think that the beach incident (Count 3) occurred on the same day as Counts 1 and 2. She later recalled they had in fact all occurred on the same day. She made a subsequent statement to police on 12 August 2013 in which she explained that she believed that Counts 1, 2, and 3 all occurred on the same day.
2. In her interview with police, the complainant stated that the incidents encompassed by Counts 1, 2 and 3 occurred when she was between the ages of five and seven years. She told police that she must not have been older than seven years of age at the time these offences occurred. She said, "I can remember sitting on my bed in Sydney, thinking about what happened, and kind of wondering why it was and stuff, and we moved out of there when I was seven, so I had to be younger than that."
3. The complainant subsequently told police in her 12 August 2013 statement that the sexual assaults took place at a time when the applicant and his family were living at a house near Tuckers Rock, because she remembered leaving from that address. It was an agreed fact at trial pursuant to s 191 of the Evidence Act 1995 (NSW) that the applicant and his family occupied the property described by the complainant from 20 November 2004 to 8 January 2008, at which time she was eight to eleven years old. The indictment accordingly alleged that the first three offences took place between 20 November 2004 and 19 March 2007, when the complainant was either eight, nine or ten years old. The complainant turned 11 on 20 March 2007.

Count 4

1. Count 4 was said to have occurred at the applicant's home between 20 March 2007 and 14 December 2007, at which time the complainant was 11 years of age. She described sitting on steps leading down to the kitchen at the applicant's house. He was seated on the top step and she was on the second step. He started to massage her down the front of her top, but she jumped up and walked out the door because she was feeling uncomfortable. During the massage, the applicant said to her, "You wear bras now, do you?" The complainant was very embarrassed by this. She responded, "No it's a singlet." The applicant massaged his way down her top and, after he rubbed her breasts, the complainant jumped up and walked out. He apologised for hurting her.
2. The complainant described the applicant's massaging of her breasts as circular motions using two or three fingers. She said that he did not get as far down as the bottom of her breasts the first time. She was shown a diagram, which was subsequently tendered and became Exhibit 2, on which she marked where the applicant touched her breasts.
3. The complainant estimated her age as being "probably" 11 years old at this time. She accepted that other children were at the house and that her mother and aunt were on the balcony having a cup of tea.

Count 5

1. Count 5 was said to have occurred between 25 December 2008 and 19 March 2009, when the complainant was 12 years old. She recalled that the whole family was at her home. It was Christmas or someone's birthday; it was a special occasion. She was sitting on the floor and the applicant was sitting on the lounge massaging her back. He worked his way down and rubbed his hands over her breasts. This time she stayed there and did not move.

Complaint evidence

1. The complainant gave evidence that she spoke with her cousin KB a few weeks after the final incident. She told her that the applicant put his hand down her pants and down her top. KB told her to tell her mother. The complainant did not tell her mother until about the time of her thirteenth birthday in March 2009.
2. KB gave evidence at the trial. She stated that, during the Christmas holidays when she was 10 or 11 years old, she and the complainant had a sleepover at their grandmother's house. At that sleepover, the complainant told KB that the applicant had "sexually molested" her on more than one occasion. KB gave evidence that: "She told me that one time they were bike riding or bushwalking in a national park and her and [the applicant] somehow were left alone and he grabbed and put his hands down her pants and touched her vagina and another time they are on the beach and they were sitting on the sand dunes and the same thing happened, he put his hand down her pants and he put his fingers into her vagina."
3. KB gave evidence that the complainant felt scared because she thought she would get in trouble, rather than the applicant. KB promised the complainant that she would not tell anyone.
4. AS, the complainant's mother, gave evidence that on an evening in March 2009 she had arranged for the complainant and her siblings to go to the applicant's home so that AS's sister (the applicant's then wife) could mind them. The complainant was "adamant" that she would not go. When AS eventually decided to send the complainant to her grandmother's house instead and to send only the complainant's two siblings to the applicant's house, the complainant was "really, really strong" about this not happening. She told her mother that her younger sister was not allowed to go. The complainant then said to her, "I'll tell you something if you promise not to tell anyone." She then said "…because [the applicant] sticks his hands down my pants and I don't [sic] him to do that to [her sister]."
5. AS promised the complainant that she would not tell anyone. In July 2009, AS told her sister MB (KB's mother) about the allegation. They both agreed to speak to SR, the applicant's then wife and their sister. They did so in either August or September 2009.
6. AS gave evidence that there was discussion within the family about whether or not to report the matter to police. A decision was made not to formally report the matter out of concern for the applicant's children. (SR and the applicant have three sons).
7. The complainant's father gave evidence that he first became aware of the allegations in either late 2008 or early 2009. When he did so, he went to the applicant's house and confronted him, telling the applicant not to set foot on his property again.
8. The applicant's former wife SR gave evidence in the Crown case. Her evidence was that she first learned of the allegations from her sisters in September 2009. She confronted the applicant that night. She gave evidence that he told her: "…about the beach incident that one time when he was on the beach and lying next to [the complainant], they were holding hands and [the complainant] put his hand in, in his lap, and he said that he told her that was inappropriate and he got straight up and I questioned [the applicant] to say 'Well did you say anything to [AS] or me at the time'…"
9. She gave evidence that, "He told [SR] that he didn't think that would be the [right] thing and he would try to keep away from her."
10. The applicant also told SR about a time when he was massaging the complainant and he "massaged the front of her chest area".
11. On 17 December 2013, the applicant was arrested. He participated in an electronically recorded interview with police ("ERISP"). The allegations were put to him. He denied the allegations that form the basis of Counts 1, 2 and 3, but said the following: "A: The thing that happened there it was I think it's, was, actually more than cycling was we went for a walk to Tuckers Rock. Um, from Tuckers Rock to um, um, what's the beach down the next headland? Um, I had a whole group of kids with me and while we, when we arrived at the other side, like, the walk was through um, um, this bush, bushland behind the dunes so we walked up there. It's about a four or five-kilometre walk or something. Um, and then the kids at the other side, it was quite windy at the beach. I decided to stay in the shelter of the dunes and the other kids went up onto the beach, and there is a headland there where they can run up and down. And um, [the complainant] stayed with me and I had fallen asleep there. I had dozed off and she was with me. And at some stage I woke up and she was playing with my hand in her pants or with her, yeah I don't exactly know and then I pulled my hand off and I said that I could, like, I felt guilty because that should not have happened at all. That, that's - And I said that's, "You should never let anybody play with you like that." You know and um, "That should, that should not have happened that". So I um, so it was not something I did. She was playing with my hand. And, like, she was I don't know, you know, what age, she was pretty young, about six or seven or something, I, I can't remember exactly of what, what the age was. And um, so because it's not something that I did to her, she played with my hand. And I told her that that was wrong and that that shouldn't, shouldn't happen." [emphasis added]
12. The applicant went on to say: "I considered it to be fairly innocent sort of thing with, that she, well kids to [sic] play with themselves sometimes so…I didn't want to make a big issue out of it, but I said 'You should never, never let anybody play with you like that, it's they shouldn't touch you there'."
13. The complainant was asked in examination in chief whether she in fact grabbed the applicant's hand while he was asleep and moved it to near her genital area. She denied this.
14. The final witness in the Crown case was Senior Constable Sara Andrews, who was the officer in charge of the investigation. She gave evidence concerning the arrest of the applicant and the conduct of his ERISP.
15. The applicant has no prior criminal history. Senior Constable Andrews was not asked to confirm that this was the case during her evidence.

The defence case

1. As well as participating in an ERISP (which was played and tendered in the Crown case), the applicant gave evidence at his trial and was cross-examined. He denied ever voluntarily putting his hand down the complainant's pants or at any time touching her vagina or her breasts. He agreed that he had massaged her on between three to ten occasions. He did this because of her complaints of a sore neck and tight shoulder due to playing the violin. He recalled a time when the complainant stopped him giving her a massage. They were at her grandmother's home. She got embarrassed and stopped the massage when other children were teasing her about wearing a bra. The applicant agreed that he probably did give the complainant a massage at his home, although he could not recall it. He recalled giving her a massage at home on Christmas Day in 2008. He recalled that there were numerous children and adults present when that massage took place.
2. He gave evidence before the jury of the incident described above at [35]. He also gave evidence of being confronted by the complainant's father in 2009.
3. The applicant did not raise his own good character in his evidence, nor were any other witnesses called in the defence case.
4. During cross-examination, the applicant was questioned about his version of events in relation to Counts 1, 2 and 3. That is, that the complainant had put his hand down her pants while he was asleep. He gave an answer that, at this time, there was "possibly" another adult in close proximity. The following exchange then took place between the applicant and the Crown Prosecutor: Q: Sir, it is absurd to think that there would either be kids around or another adult around while your hand is down [the complainant's] pants, isn't it? A: I don't know it's…. Q: This is you sir somehow trying to explain your paedophile tendencies. [emphasis added]
5. Her Honour rejected the last question.
6. In cross-examination with respect to the events forming the basis of Count 4, it was put to the applicant that he made a comment to the complainant to the effect that she was wearing a bra. The applicant responded by asking rhetorically, "Why would I make a comment like that?" The following exchange between the Crown Prosecutor and the applicant then took place: "Q: Because you had a real sexual interest in [the complainant] that's why? A: No I wouldn't, don't and--- Q: You had a sexual interest in her from when she was six years of age and it continued right until this incident with the massage and you touching her breasts twice? A: In the meantime I've shown no interest in her whatsoever - " [emphasis added]
7. The trial judge indicated that she was not allowing any more questions "of that kind".
8. The following day, when discussing legal directions for the summing up, her Honour expressed concern about the above questioning because the Crown case was that the complainant was eight, nine or ten years old at the time of Counts 1, 2 and 3. Suggesting to the applicant that he had had a sexual interest in the complainant since she was six years old might have led the jury to speculate that there were earlier allegations of which they were not aware. The Crown Prosecutor defended this questioning by noting that, in her recorded interview, the complainant described the first incident as happening when she was between five and seven years old. He also noted that the applicant had said in his ERISP that the incident at Tuckers Rock had occurred when the complainant was six. Her Honour indicated that she would deal with this issue in her summing up, stating: "I'm going to have to say something that the only evidence before them is the acts that are the subject of charges and although there's been mention of the possibility of things happening outside that period there's nothing before them of that kind."
9. In her summing up, her Honour told the jury: "Of particular note, you might think, is that when she first spoke to the police she said that she thought she was six years or something of that kind but later she said she was somewhere between eight and ten years. You might think that is a fairly significant inconsistency."
10. Her Honour did not thereafter revisit the issue of the complainant's age at the time of the first set of offences in her summing up. No further direction was sought.
11. During his cross-examination, the applicant was asked whether he had ever discussed the complainant's allegations with anyone prior to speaking with police in 2013. The applicant had discussed the incident with his psychiatrist in 2009. As a result of this exchange, an agreed fact was admitted into evidence pursuant to s 191 of the Evidence Act in these terms: "That on 30 September 2009 [the applicant] spoke to a consultant psychiatrist Dr Barnes. Dr Barnes' handwritten notes include the following: 'Niece lying next to him at a beach playing with his hand while he was asleep - used his hand to touch herself, he recalls pulling away as soon as woke up'."

The ground of appeal

1. The sole ground of appeal was in these terms: "The trial miscarried as a result of the failure of the Applicant to lead evidence of good character."
2. The applicant relied upon seven affidavits on the appeal. They were all read without objection. No witnesses were required for cross-examination.

Affidavit evidence upon which the applicant relied

1. First, an affidavit of trial counsel, Mr Hughes, affirmed 20 October 2016 was read. In it, he stated that he was briefed to appear for the applicant at trial at short notice when the applicant's then counsel, Ms Lewer, became unavailable. He was briefed in late February 2015. The trial was listed on 9 March 2015. He received the brief a few days later. He met the applicant before court and they spoke regularly thoughout the trial. The first trial aborted on the basis of inadmissible material being before the jury. The second trial commenced on 16 March 2015. Mr Hughes stated that he did not recall any discussions concerning good character. He stated that "…the focus was very much upon the reliability of the complainant's account."
2. Second, an affidavit of the applicant's trial solicitor, Mr McGuiness, affirmed 21 June 2016 was read. In it, he stated that he did not recall any discussions with counsel and/or the applicant relating to the calling of character evidence.
3. Third, an affidavit of the applicant affirmed 21 June 2016 was read. He deposed that he was not aware that he was able to raise good character at trial until after the trial. He stated that he had no criminal convictions in Australia or overseas, having arrived in Australian from the Netherlands in 1995. He had good friends who would have been willing to give such evidence.
4. Fourth, an affidavit of Mr Parmenter affirmed 4 July 2016 was read. He first met the applicant in November 2012. He described the applicant as being a member of a choir run by his partner. The applicant spent time at their home for concerts, fundraisers and rehearsals. The applicant helped him around the house with building. The applicant was also regularly around his children and he had no concerns about that. He had consulted the applicant professionally for acupuncture. The applicant was professional and a good listener. Mr Parmenter deposed that he is aware of the allegations and would have been happy to have given this evidence at trial, but nobody asked him.
5. Fifth, an affidavit of Ms Cobcroft affirmed 4 July 2016 was read. She is the partner of the previous deponent and first met the applicant in October 2012. She too confirmed that she saw the applicant regularly in 2012 and 2013. He advised her and her partner regarding organic farming. They socialised together. Ms Cobcroft and the applicant were the secretaries of an organisation that conducted musical matinees. He spent a lot of time with her children and she never had any concerns about that. She had seen him with other people's children. She had never seen him behave inappropriately. She opined that the applicant is "a trustworthy and honest man of good character". If she had been asked to provide a statement or to give evidence at his trial, she would have done so. She was not asked. She would have given evidence as to his "kindness, trustworthiness and honesty" and she would have "…told the court what a good friend he has been to myself and my family."
6. Sixth, an affidavit from Ms Clyne affirmed 18 August 2016 was read. She deposed that she had worked as a homeopath at a health food store with the applicant in 2011. They became friends and socialised together. She saw him interact with children and had at no time felt his behaviour to be out of the ordinary. She spent a lot of time with him. He helped her paint her clinic. She found him to be a man of "honour and integrity". She stated that she was aware of the offences and that if she had been asked to come to court during the trial to give evidence on his behalf she would have done so.
7. It is to be noted that the proposed character witnesses' evidence was "new" evidence rather than "fresh" evidence, in that it was constructively available at trial: Abou-Chabake v R (2004) 149 A Crim R 417; [2004] NSWCCA 356 at [63].

Affidavit evidence upon which the Crown relied

1. The Crown relied upon an affidavit of the Crown Prosecutor at trial, Mr Apps, affirmed on 20 October 2016. This affidavit set out some of the procedural history of the matter that was not otherwise before the Court. That material can be summarised as follows.
2. The matter was first listed for trial on 3 November 2014. Prior to that trial, the Crown served a tendency notice under s 97 of the Evidence Act on the applicant's legal representatives. That notice foreshadowed that the Crown would seek to call evidence from NP, another cousin of the complainant, at trial and that the Crown would rely upon her evidence as evidence that the applicant had a tendency to "indecently assault girls under 16 years of age while massaging/treating them".
3. NP had made a statement to police on 16 April 2014 in which she stated that she had tonsillitis in 2007 when she was 12 years old. She decided to try a homeopathic remedy. She went to the applicant's office. He was her uncle by marriage. He asked her questions. Her statement then reads as follows: "[The applicant] then started to feel around my under arm and then down the side of my breast area. [The applicant] didn't say anything at the time when he was doing this. At the time as a child I didn't know any better and was unsure if I had glands in the side of my breast area. I didn't question why he was doing this and I didn't disclose to anyone that this had occurred as I thought that he was certified to practice this type of behaviour. [The applicant] said that if he got underneath my shirt that he would be able to feel a bit better. [The applicant] placed one hand on the front of my top and pulled it away from my body and then reached down with his other hand. He was using his fingertips to massage press against my skin, that's what it felt like. I felt really awkward about this and didn't know exactly why he was feeling the side of my breast. The incident lasted around 30 to 60 seconds before his son T walked into the office to ask his dad a question. T around the time would have been between 5 to 7 years of age. What alerted me to this was the applicant's manner in which he dealt with T. He told T to get out and then my child like mind questioned if he was actually certified to practice. I can't recall exactly what occurred after T left the office."
4. She went on to state: "In 2009 I was around 14 years of age. I went back over to visit my family in New South Wales. At the time I was having a sleep over at Auntie's house [AS] with my two cousins [the complainant] and [KB]. We were sitting in a tent talking about random stuff. [The applicant] was accidentally mentioned in conversation between [the complainant] and [KB] and I asked what they were talking about, [the complainant] was very hesitant to mention anything. [The complainant] gave me a very brief explanation as to [the applicant] being a creepy uncle and I explained that something happened to me. We both ran inside and explained to AS what [the applicant] did to me".
5. On 31 October 2014, the applicant's solicitor filed a notice of motion seeking to have the evidence of NP excluded from the trial. Submissions dated 3 November 2014 prepared by Ms Lewer were filed in support of the application. A copy of those submissions was annexed to Mr Apps' affidavit.
6. The first trial before Letherbarrow SC DCJ commenced on 3 November 2014. Ms Lewer made a successful application to have a covert recording of a conversation between the complainant and the applicant excluded. The jury was discharged while Mr Apps sought instructions as to whether to bring an interlocutory appeal to this Court against that decision. No such appeal was ever lodged.
7. The second trial commenced before Wells DCJ on 9 March 2015. The motion to have the evidence of NP excluded was never determined because the Crown ultimately decided not to rely upon that evidence. That trial was subsequently aborted because some of the material the subject of Letherbarrow DCJ's ruling inadvertently went before the jury.
8. Mr Apps asserted in his affidavit that, had the applicant sought to rely upon good character evidence at trial, he would have sought leave to call the evidence of NP to rebut it.

Applicant's evidence in reply

1. The seventh affidavit upon which the applicant relied was that of Ms Wearin affirmed 27 October 2017. Ms Wearin is the applicant's solicitor on this appeal. Her affidavit was filed in response to the affidavit material filed by the Crown. It simply annexes the police statement of SR, the applicant's ex-wife. The applicant placed reliance upon parts of the statement of SR that were not led at trial. That evidence is as follows.
2. The morning after SR confronted the applicant about the allegation concerning the complainant, her sister MB told SR that the complainant had asked NP whether the applicant had ever done anything to her. MB responded that NP told her that the applicant had touched her on the breasts when she was sick.
3. SR confronted the applicant the following day and told him something like, "I know that you've touched NP." She went to work and got home at 1pm. She found four envelopes on the kitchen table. She called 000. The applicant was found unconscious in the bathroom. He had cut himself down his arms and on his neck. It was described by the hospital as a serious suicide attempt. SR disposed of the notes to protect her children. When she saw the applicant in hospital he said to her, "I didn't do a good enough job."
4. SR subsequently had a conversation with NP in which NP told her, "She hadn't been touched directly on the breast by the applicant and that he was touching the glands under her armpits."

The complainant's explanation for delay in complaint

1. The complainant first made complaint about the conduct of the applicant to KB in January 2009. In March 2009, the complainant told her mother. In September 2009, SR was told about the complaints made by both the complainant and NP. She confronted the applicant about the allegations made by the complainant and then, a few days later, the allegation made by NP. It was after the complaint by NP was put to him that the applicant attempted suicide and was taken to hospital.
2. The complainant did not go to police until 2011 and was interviewed on 24 February 2011. On 17 December 2013, the applicant was arrested and interviewed.
3. On the first day of the second trial (the first before Wells DCJ), her Honour was asked to rule on a dispute as to what evidence the complainant should be permitted to give concerning the reason for her delay in complaining to police. The Crown Prosecutor informed her Honour that the complainant's reasons for not wishing to proceed with the matter as at 2009 were both concern for her three cousins (the applicant's three children) and the fact that the applicant had made a serious suicide attempt in 2009.
4. Counsel for the applicant objected to reliance upon the evidence of the suicide attempt because: "There was another cousin who made a similar allegation and then retracted it and [the applicant's] view was at the time that that second allegation was made that all hope was lost. He might stand a chance of defending where there's one complainant but not two and that's what led to the suicide attempt. Now obviously I cannot put any of that into evidence without…"
5. The issue arose again later, when the complainant was about to give the proposed evidence. Further submissions were made at that time. The application of defence counsel was that the complainant should only be permitted to give half the reason for her delay in making complaint because the evidence of the suicide could be viewed as an admission. Her Honour permitted the complainant to give the evidence on the understanding that she would direct the jury as to the use that could permissibly be made of it. Her Honour ruled that the complainant would only be permitted to say that, "She was concerned because he had attempted suicide," without going any further than that. Her Honour indicated her view that the probative value of the evidence, in terms of an explanation for why the complainant did not complain earlier, was strong.
6. When the Crown Prosecutor tried to lead the evidence from the complainant consistent with the terms of her Honour's ruling, the following exchange took place: "Q: And you were concerned for those children as he'd tried to take his own life, he had attempted to commit suicide? A: Yes, after I disclosed what happened. Q: Was that a reason why you didn't go to the police, out of concern for his kids? A: Yes, that was the main reason." [emphasis added]
7. After the complainant gave the answer highlighted above, the trial judge (in the absence of the jury) expressed concern that the answer had not been given in the terms for which her ruling allowed. When the jury returned to court, her Honour immediately gave them a strong direction to the effect that the evidence of the attempted suicide could not be used as an implicit admission of guilt.
8. As stated above, the first trial before Wells DCJ aborted on 10 March 2015 during the evidence of the last of six witnesses called in the Crown case. The complainant had concluded her evidence by that time. This meant that the Crown was entitled to rely upon the recording of the complainant's evidence given at the first trial before Wells DCJ as her evidence in the final trial: s 306I of the Criminal Procedure Act 1986 (NSW).
9. When the recording of the complainant's evidence was played at the final trial, the direction given by her Honour concerning the complainant's evidence of the timing of the suicide attempt was edited out of the material that went before the jury. However, the complainant's evidence at [77] above was included. When it became apparent to the trial judge that her warning had been edited from the recording, she gave the jury the following direction: "During the playing of the evidence of the complainant you heard her refer to the accused attempting suicide after she made her complaint. I need to tell you that that evidence is led for a very specific purpose and it is limited in the use to which you can put the evidence. The evidence is led in the trial to explain why she delayed her complaint, or part of the reason why she delayed her complaint, or why there was at least delay in any official action after she told her mother. So it's used in order to explain why she acted or didn't act as she did. That is the only purpose for which you are to use that evidence. You're not to assume that that is some evidence of the accused's guilt. It might be the case that a person in that position might take that sort of action by the mere making of a complaint by another person so it can't necessarily - it may be but it can't necessarily be any indication that what she is complaining about has in fact happened. What you need to concentrate is on all of the evidence that you hear in this trial about that. In particular, the evidence of the complainant. So it's really of no assistance to you in determining, of itself alone the question of guilt but it goes to explain her actions in the matter."
10. Later, her Honour gave a similar warning in the course of her summing up as follows: "You have heard that she did not want to make a formal complaint once she told her mother. She really did not want to follow through once she had spoken to police for a period of time and this was, out of her concern for the children of the accused and the fact that he had attempted suicide. Again, I remind you that attempted suicide depending on what you make of it, is not evidence of guilt. At any rate the fact that she did not complain to anybody for a period of time does not mean that it is untrue but it is nevertheless a matter that you bear in mind in considering the allegations that she has made. She has told you why she did not complain."
11. A final part of the transcript concerning the evidence of the attempted suicide should be noted. SR was about to give evidence of confronting the applicant concerning the complainant's allegations at the first trial before Wells DCJ when the jury was asked to take a short break. The question arose as to how to adduce her evidence at this stage without introducing the fact that NP had made a complaint as well. Her Honour indicated she would warn the witness not to make any reference to the complaint by NP. The applicant's counsel indicated that his position in relation to the evidence of NP (upon which the Crown had decided not to rely) was as follows: "I suspect it was cut off just in time, but that is - that is material which was the subject of a tendency notice...and there are contamination issues and I would prefer not - I would prefer that it is steered well clear of because anything of that nature will be objected to in the strongest terms." [emphasis added]
12. When SR returned to court, the trial judge warned her not to make any mention of the complaint made by NP.

Submissions on behalf of the applicant

1. In his written submissions Mr Carroll of counsel contended that the trial had miscarried due to the failure to lead evidence of the applicant's good character. He relied upon the affidavit evidence of the applicant's trial counsel and solicitor to the effect that the failure was one of oversight. It was submitted that it was difficult to justify the failure to raise good character as a legitimate forensic decision. It could not be said that such evidence would not have made a difference to the jury's assessment of the applicant's credibility or of the likelihood of the commission of the alleged offences.
2. At the hearing of the appeal Mr Carroll acknowledged that his written submissions were prepared without knowledge of the evidence of NP. He submitted that the potential for NP's evidence to be introduced at trial did not alter the fact that the trial miscarried due to the absence of any evidence of good character. On the contrary, it was submitted, the availability of NP as a witness strengthened the ground of appeal. The basis for this submission was said to be that if both the evidence of NP and evidence of good character were before the court the trial would have been fairer. It was submitted that the evidence of NP was not capable of establishing bad character in that it is inconsistent with the evidence of the complainant.
3. Mr Carroll relied upon differences between the evidence of the complainant and the evidence of NP. One difference was identified as being the location of the "massage". The complaint's allegation was that it occurred in a lounge room, whereas NP's allegation was that it was in a consultation room. Another difference was that NP alleged touching of the sides of the breast rather than all over the breasts as described by the complainant.
4. When pressed, Mr Carroll agreed that the applicant's position was that having both the evidence of NP and the good character evidence at trial was preferable to having no character evidence at all. He also conceded that there are trial transcript references that are consistent with trial counsel for the applicant being aware of the evidence of NP and not wishing it to be before the jury.
5. In addition to his submission that NP's evidence should in fact have been adduced at trial, Mr Carroll made two further complaints concerning the trial.
6. First, he submitted that certain cross-examination of the applicant at trial improperly introduced evidence of the applicant's bad character, which increased the significance of the omission to lead evidence of his good character. That is the cross-examination by the Crown Prosecutor extracted above at [43]. It was submitted that this Court should view the absence of any evidence of good character in the context of that questioning. Such a "holistic" approach, it was contended, would establish that the applicant had been denied the chance of an acquittal by reason of the failure of his counsel to adduce evidence of good character.
7. Second, Mr Carroll submitted that the prejudicial evidence concerning the timing of the suicide attempt by the applicant could have been better explained to the jury if the evidence of NP were before them. The complainant's answer extracted above at [77] was misleading, as the suicide attempt had apparently been the result of there being two complaints against the applicant, rather than one. If the evidence of NP had been adduced at trial, the full picture would have been before the jury and the trial would have been fairer.
8. In his written submissions Mr Carroll relied upon a number of decisions regarding the important role character evidence can play in the outcome of a criminal trial and the circumstances in which appellate courts have ordered new trials because evidence of the accused's good character was not before the jury: namely, Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32; Saw Wah v The Queen [2014] VSCA 7; De Silva v The Queen [2013] VSCA 339; Clay v The Queen [2014] VSCA 269; Sharma v The Queen [2011] VSCA 356; R v DBB [2012] QCA 96; and GZ v The Queen [2015] ACTCA 11.

Submissions on behalf of the Crown

1. The Crown's central submission was that, had trial counsel for the applicant sought to adduce evidence of good character, the Crown Prosecutor would have inevitably sought leave to call evidence from NP to rebut it.
2. It was submitted that there was no miscarriage of justice in this case, having regard to the evidence at trial. That evidence included the fact that the applicant had made certain admissions.
3. The Crown relied upon the decision of this Court in R v Gust [1999] NSWCCA 265 at [22], where Dunford J (with whom Smart AJ agreed) observed: "In my view, evidence of prior good character is of limited assistance in cases of sexual assault, because such offences are usually committed in private and one's friends and business associates are not aware of the conduct. This is a very different case to R v D where there was no corroboration of the complainant, the Crown case was much weaker than the present, the character evidence was far stronger and its effect in bolstering the accused's credibility would have been significant. Moreover, in this case the un-contradicted evidence of Mr Warwick is that his instructions were to proceed without character witnesses and not to raise the issue of character. I am not satisfied that the failure to raise character in this case led to any miscarriage of justice or that the position was not sufficiently explained to the applicant before he gave his instructions. The ground has not been made out."
4. As for the complaint concerning the cross-examination by the Crown Prosecutor, it was noted that no application was made by trial counsel to discharge the jury and no request was ever made to remind the jury that the only evidence of any alleged sexual or indecent assaults related to the counts on the indictment.
5. Finally, it was submitted that if the applicant established his ground of appeal then this Court would apply the proviso because no substantial miscarriage of justice had occurred: s 6(3) of the Criminal Appeal Act.

Consideration

1. An accused person is usually bound by the way in which counsel conducts his or her trial. In order to succeed in relation to his ground of appeal, the applicant must establish that the conduct of his counsel has led to a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act.
2. The High Court considered this issue in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 ("TKWJ"). The accused in that matter had been charged with sexually assaulting two children. The trials were separated. At the first of the two trials, counsel for the accused indicated that he proposed to rely upon character evidence. In response, the Crown Prosecutor indicated that if the accused did so, he would seek leave to adduce evidence from the other child about the allegations relating to her. As a result, defence counsel elected not to rely on character evidence. The High Court determined that there had been no miscarriage of justice in that matter.
3. Chief Justice Gleeson observed in TKWJ at [8] (footnote omitted): "On the face of it, that was an understandable decision. It was certainly not self-evidently unreasonable, or inexplicable. It was the kind of tactical decision routinely made by trial counsel, by which their clients are bound. And it was the kind of decision that a Court of Criminal Appeal would ordinarily have neither the duty nor the capacity to go behind. Decisions by trial counsel as to what evidence to call, or not to call, might later be regretted, but the wisdom of such decisions can rarely be the proper concern of appeal courts. It is only in exceptional cases that the adversarial system of justice will either require or permit counsel to explain decisions of that kind. A full explanation will normally involve revelation of matters that are confidential. A partial explanation will often be misleading. The appellate court will rarely be in as good a position as counsel to assess the relevant considerations. And, most importantly, the adversarial system proceeds upon the assumption that parties are bound by the conduct of their legal representatives".
4. Justice Gaudron (with whom Gummow and Hayne JJ agreed) observed at [32]: "An accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial."
5. Similarly, McHugh J observed the following at [52]: "The decision not to call the good character evidence was a matter falling within the discretion of counsel as to how he would conduct the defence and did not constitute a material irregularity that led to a miscarriage of justice."
6. His Honour went on to observe at [74] (footnotes omitted): "Ordinarily, a party is held to the way in which his or her counsel has presented the party's case. That is because counsel is in effect the party's agent. Counsel is 'ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted.' The discretion retained by counsel in the running of a case is very wide."
7. Justice McHugh later observed at [95], in a passage apposite to the current appeal: "Some experienced counsel might think that the applicant would have had a better chance of acquittal if he had raised good character even if the Crown called K to rebut the claim of good character. Counsel for the applicant would have claimed that K and the complainant had colluded to convict an innocent man. But trial counsel's decision not to raise character was a proper one. If the jury believed K, then the applicant was a person of bad character. The chance of the jury then acquitting him of any of the charges would be much lower than if the jury had no evidence concerning the applicant's character. The choice that trial counsel made - calling no character evidence - was a legitimate one, a choice that a competent counsel could fairly make. That is enough to dispose of this ground in this case. Not calling good character evidence, as the result of counsel's decision, was not an irregularity - material or otherwise. It resulted in no miscarriage of justice."
8. The High Court again considered the role of counsel at trial in Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9. In that matter, Gleeson CJ observed the following at [9]: "A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial. In TKWJ v The Queen, the applicant complained that evidence of his good character was not led. This, it was said, was unfair. In rejecting that argument, this Court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision. That, in the circumstances of the case, was conclusive. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct." (citations omitted)
9. Counsel for the applicant sought to distinguish the present appeal on the basis that the evidence of NP was not capable of amounting to bad character. I do not accept that submission. In relation to Counts 4 and 5, the complainant's evidence was that she felt uncomfortable when the applicant massaged her breasts and on the first occasion (Count 4) she jumped up and moved away when he did so. The evidence from NP was that she felt "awkward" when the applicant massaged the sides of her breasts under her top. A jury may well have questioned why it would have been necessary to massage a child's breasts under her clothing in order to alleviate either a sore neck (the complainant) or tonsillitis (NP).
10. The context in which NP complained to the complainant is also relevant. That potential evidence is extracted above at [63]. The conversation was about how "creepy" the applicant was. As soon as the two girls realised that, to their minds, the applicant had inappropriately touched both of them in a similar way they made immediate report to the complainant's mother of the allegation by NP. It is difficult to see how this evidence could be described as anything other than evidence of bad character capable of rebutting the evidence of good character that is now said to have been available at trial.
11. The applicant submitted that the complaint of NP differed significantly from that of the complainant and hence did not assist the Crown case. In respect of this submission, it must be noted that evidence adduced to rebut good character need not meet the same statutory test as tendency evidence. In order to have been adduced as tendency evidence at trial, the evidence of NP would need to have satisfied the requirements in ss 97 and 101 of the Evidence Act. To adduce evidence to rebut good character evidence, leave is required: s 112 of the Evidence Act. Otherwise, the only statutory precondition to admissibility is that the evidence, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue at the trial: s 55 of the Evidence Act.
12. With this in mind, the first difference relied upon by the applicant was that the respective allegations were said to have taken place in different environments. Whereas Counts 4 and 5 were said to have taken place outside of the applicant's consultation rooms, the incident pertaining to NP occurred in his consultation room. I do not accept that this is a significant point of distinction to make, given that both girls had the same response to what the applicant did to them. The second difference was that one allegation was of touching the breasts whereas the other was of touching the sides of the breast. Again, I do not consider this distinction to be of such significance in the evidence overall that it would deprive the evidence of its relevance.
13. Nor do I accept the submission that a trial with both the proposed character evidence and the evidence of NP would have been "fairer". The events on the indictment were said to have occurred between 2004 and 2009. The potential character evidence described above at [56] to [58] was from people that the applicant had only recently met, who all described the applicant's character after the events in question. Of the three potential character witnesses, one had met the applicant in 2011 and the other two in 2012. In those circumstances it would have been open to the Crown Prosecutor to address the jury to the effect that, after two children had complained of sexual and indecent assaults by him in 2009, the applicant may well have been more careful around children. The applicant does not seek to rely upon any character evidence as to the applicant's behaviour around children in the period of the indictment.
14. The applicant relied upon a number of cases in which appellate courts ordered new trials due to the failure of counsel to adduce evidence of good character at trial. All of those cases differed from the present case in significant respects and are distinguishable on that basis. I shall briefly refer to the cases upon which the applicant relied in order to highlight those differences.
15. In Saw Wah v The Queen, the Victorian Court of Appeal found that the trial judge had erred when he held that the Crown could call evidence of bad character if the accused called good character evidence. That evidence of bad character was evidence of "rumours" of prior sexual misconduct. It was held that the trial judge should have made it clear to counsel in that trial that evidence of "unspecified rumours" would not be admissible to rebut evidence of good character. That case concerned a trial where defence counsel sought to adduce evidence of good character and was precluded from doing so. It does not assist in the present appeal.
16. In De Silva v The Queen, the Victorian Court of Appeal held that a miscarriage of justice had occurred when evidence of good character was not led at trial. The court (Priest and Coghlan JJA and Lasry AJA) observed at [21] - [22] (footnotes omitted): "Although generally an accused person is bound by the conduct of his or her counsel at trial, and that ordinarily it matters not that an applicant's trial might have been differently or more skilfully conducted, nonetheless the authorities recognise that there are cases where a substantial miscarriage of justice may be found to have occurred where counsel has failed to call evidence of the accused's good character. This is, in our view, such a case. We can discern no legitimate forensic reason for failing to call evidence of the applicant's good character. Although other evidence was called by either side, this was very much a case of oath against oath. The applicant had available to him powerful character evidence, which bore not only on the unlikelihood of his commission of the offences but also on the credibility of his evidence denying his guilt. It may well have made a difference to the jury's assessment of the applicant's credibility, and hence of his guilt."
17. Again, what occurred in De Silva v The Queen is to be distinguished from the present case in that there was no legitimate forensic reason not to call the character evidence, unlike the present case.
18. Similarly, in Clay v The Queen, the Victorian Court of Appeal held at [75] that there was "no conceivable reason" why character evidence was not before the jury, comparing the matter with See Wah v The Queen. Despite this, the Court observed that it would not have allowed the appeal on that ground alone; it was only in combination with other grounds that a miscarriage was established.
19. Sharma v The Queen, another decision of the Victorian Court of Appeal, was a different case altogether. In that case, the accused person had no criminal convictions. When defence counsel asked the only police witness called by the Crown to confirm this, the officer stated that he could not comment as he did not know. This was not resolved before the close of evidence. When the trial judge was about to direct the jury, defence counsel agreed that there was no evidence of good character before the jury to warrant a character direction. Unlike the present case, there was no tactical reason for defence counsel not to have adduced good character evidence in that matter.
20. In R v DBB, the Queensland Court of Appeal was ultimately persuaded that there had been a miscarriage of justice in that the applicant had been deprived of a chance of acquittal by the failure of his counsel to adduce evidence of good character. In that matter the miscarriage was held at [55] to stem from a combination of factors; namely, the accused person had informed his solicitor of the availability of witnesses of good character, but the solicitor passed this information on to counsel without informing him of the substance of the proposed character evidence and in such a way as to minimise the significance of the evidence. Although the appeal was allowed, Muir JA (with whom White JA and Mullins J agreed) observed this at [51]: "Sexual offending by adult males of previously unblemished reputations and who appear to their friends, relatives and business and social acquaintances to be of impeccable character is found to have occurred all too frequently. There is also ample evidence that adult males, as a general rule, are substantially more likely to commit sexual offences against their stepchildren than their own progeny. The publicity given to the great many cases involving sexual offending by clergymen against children in their care or subject to their influence has tended to devalue even glowing references by clerics in the circumstances under consideration."
21. The final decision relied upon by the applicant was that of GZ v The Queen, a decision of the ACT Court of Appeal. In that decision, the Court upheld an appeal against conviction for sexual offences where the trial judge had permitted evidence of "bad character". The complainant gave evidence that there had been other occasions of sexual assault that were not on the indictment and that she could not remember. Defence counsel had failed to adduce evidence of good character. The Court (Murrell CJ, Burns J and Robinson AJ) observed at [16]: "We can think of no forensic decision for the applicant's then counsel not to have raised the applicant's good character before the jury. There was no suggestion on appeal that the Crown, at trial, was in a position to rebut evidence of good character with evidence of bad character."
22. A miscarriage of justice will only be established on the basis of a failure to adduce evidence of good character if no rational basis can be gleaned from the transcript of the proceedings for failing to do so. In this appeal, the affidavit evidence of trial counsel upon which the applicant relied simply states that evidence of good character was not considered. But the question is not what counsel did or did not do at trial and why. Rather, the pertinent question is whether the trial transcript discloses that the trial has miscarried. There is authority for the proposition that affidavits from an applicant's previous lawyers should not be read on an appeal as a matter of course. In Nudd v R, Gleeson CJ observed the following, at [10], with respect to the question of whether counsel should be called as a witness in appeal proceedings of this nature: "To the extent to which it is reasonably possible, the focus of attention should be the objective features of the trial process. Nevertheless, there may be circumstances where it is relevant to ask why some act or omission occurred. In some cases, for example, it may be material to know that counsel took a certain course upon the instructions of the client. There could be circumstances in which it is material to know that a course was taken contrary to instructions. The possibility of a need to know the reason for conduct cannot altogether be eliminated. In general, however, as far as justice permits, the enquiry should be objective. As a matter of principle, such objectivity is consistent with the assumptions on which the adversarial system operates. As a matter of practicality, it avoids the difficulties inherent in turning a criminal appeal into an investigation of the performance of trial counsel."
23. See also Ahmu v R [2014] NSWCCA 312, Alkhair v R [2016] NSWCCA 4, Matthews v R [2013] NSWCCA 187, Vella v R [2015] NSWCCA 148 and Langelaar v R [2016] NSWCCA 143.
24. The Crown relied upon the observation of Dunford J in Gust v R, extracted above at [94], to the effect that evidence of good character is of limited assistance in sexual assault trials. I am not satisfied that any such principle of general application can be derived from that decision. In that matter, the accused person had been told of the importance of character evidence. He told his solicitor that he did not want people in his home town to know of the charges. He was told by his trial counsel to have his character witnesses at court, but he failed to have them there. No questions were asked of the officer in charge about the accused's lack of criminal history in NSW, in circumstances where he had a criminal record in Victoria for wilful damage and for maliciously killing a dog. In my view, the observation by Dunford J as to the limitations of character evidence in sexual assault trials must be viewed in that context.
25. The decision of R v D (1996) 86 A Crim R 41 was referred to by Dunford J in R v Gust. In that decision, Hunt J observed that evidence of good character can be of substantial benefit to an accused person. A new trial was ordered in that matter because no evidence of good character had been adduced at trial. That trial concerned an allegation of sexual assault by the accused on his daughter. The Crown case relied almost solely upon the evidence of the complainant. Although it was elicited from the officer in charge that the accused had no criminal convictions, complaint was made on appeal that defence counsel failed to call a number of witnesses who were available and willing to give evidence for the accused, including cogent and detailed evidence from his local priest and the former Sheriff's officer in the accused's district. Hunt J observed (at 42): "Evidence of good character can be of substantial benefit to an accused person. It may demonstrate that it is unlikely that, as a person of good character, he or she would have done the act charged. It may also support the credibility of the evidence of the accused denying guilt and hence the unlikelihood of his or her guilt. There is a vast difference in the likely effect upon a jury between the basic type of evidence which was in fact elicited at this trial and the further evidence which was available and to which I have referred; the jury is entitled to and may well in fact give greater weight to the evidence of witnesses who were able to speak directly to the good character of the accused than to evidence of the bare nature elicited in this case."
26. Those comments were made by his Honour over 22 years ago. It is to be accepted that there is now greater community awareness of the nature and extent of child sexual assault offending in our society and that persons of otherwise good character commit such offences. Despite this, it seems to me that evidence of an accused person's good character in a trial on sexual assault offences may well play a significant role in the outcome of a criminal trial, depending upon the circumstances of the case and the nature of the character evidence to be adduced. In this trial the applicant participated in an ERISP with police and also gave evidence. Had evidence of good character been established, it would have been relevant to both credibility and propensity: Melbourne v The Queen at 14 [30] - [31]. The difficulties with the potential character evidence in this trial are both the existence of the evidence of NP and the fact that all of the proposed character evidence post-dates the alleged offending.
27. I turn finally to address the last two complaints made in support of this ground: the complainant's reference to the timing of the applicant's suicide attempt and the cross-examination of the applicant by the Crown Prosecutor said to have introduced evidence of his bad character.
28. The complainant gave evidence that one of the reasons for her delay in complaining to the authorities was that the applicant attempted suicide after being confronted by his then wife. This was technically incorrect as it was the complaint by both her and NP that led to the suicide attempt, rather than her complaint alone. The submission on appeal was that if both the evidence of the applicant's good character and NP's evidence were before the jury, the evidence as to the applicant's suicide attempt could have been more fully explained.
29. The difficulty with this submission is the sheer improbability that any trial counsel would have tactically decided that it would help the defence case if the jury knew that the suicide attempt was the result of two children making complaint rather than one. In any event, the judge gave a strong direction about this twice: the first time immediately after the evidence and then again in the summing up (see extracted above at [80]).
30. Moreover, the evidence that the complainant gave about the suicide attempt was at the first aborted trial before Wells DCJ. The recording of her evidence made at the first trial was simply played to the jury as comprising her evidence at the second trial. The direction given by her Honour immediately after that evidence at the first trial was edited from the recording, but the evidence itself was not. In those circumstances, if there were any concern about that evidence, application could have been made by counsel to edit the recording and an agreed fact crafted as to what the complainant's evidence was in a way consistent with the trial judge's ruling. This was not done.
31. The applicant's remaining argument concerned the cross-examination of the applicant by the Crown Prosecutor extracted above at [43]. There is no doubt that the Crown Prosecutor should have used more careful language when he suggested that the assaults commenced when the complainant was six years old, rather than the age range in the indictment. Furthermore, the reference to the applicant's having "paedophile tendencies" was also unnecessarily inflammatory in the circumstances of the allegations at trial. Despite this, I am satisfied that no unfairness was caused by the manner in which this evidence was left to the jury for the following three reasons.
32. First, the trial judge gave the direction extracted above at [48]. The jury was instructed to have regard to the inconsistency in the complainant's evidence as to the time she said that the assaults commenced (six years as against eight to ten years). Implicit in this direction was identification by the trial judge that any reference at trial to anything happening when the complainant was aged six years was a reference to the first three counts in the indictment.
33. Second, the complainant did not make any reference in her evidence to any allegations other than those in the indictment.
34. Third, KB only made reference to the complaint to her being about the matters on the indictment.
35. In these circumstances, I am satisfied that, although there was some risk that the jury may have thought that the Crown Prosecutor was referring to another incident prior to the first matters on the indictment, the risk was not significant and any possible prejudice was cured by the direction that her Honour gave.
36. Moreover, contrary to the applicant's submission, I am not convinced that the combined effect of the evidence of NP and the proposed character evidence would have assisted the applicant in any event.
37. There are two further difficulties with the applicant's placing reliance on these last two matters.
38. First, no leave was sought at the hearing of the appeal to rely upon these two complaints as separate grounds of appeal. There is a real question as to whether these discrete complaints logically form part of the sole ground of appeal in this matter.
39. Second, no complaint was made about either of these matters at trial. In relation to the complainant's evidence concerning the timing of the suicide attempt, no further direction was sought beyond that given and no attempt made to edit the material from the first trial before Wells DCJ. With respect to the cross-examination at trial, it was the trial judge who indicated that she proposed to say something to the jury about the only allegations being those on the indictment. No objection was made by defence counsel at trial nor was any further direction sought by him. Rule 4 of the Criminal Appeal Rules thus applies in relation to both of these complaints.
40. Rule 4 is in the following terms: "No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal."
41. The effect of the rule was described by McHugh J in Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37 as follows (at [72]): "There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the applicant has an arguable case that the trial judge has made an error of law or is satisfied that the applicant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the applicant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the applicant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the applicant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the applicant and that, if it had, it is more likely than not that the applicant would have been acquitted..."
42. In ARS v R [2011] NSWCCA 266, Bathurst CJ summarised the relevant authorities regarding the effect of Rule 4. After citing the above passage from Papakosmas, his Honour observed the following at [148]: "Subsequent cases have established that the following matters are important in considering the operation of r 4: The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170]. The applicant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21]. A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]- [13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]- [61]. An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130]."
43. Having regard to the transcript as a whole and in particular the conduct of the applicant's defence at trial, I am not satisfied that the applicant has lost either a real chance or a chance fairly open of being acquitted at trial. Accordingly, I would refuse leave to rely upon these latter arguments (whether as part of Ground 1 or otherwise).
44. Trial counsel did not call evidence of good character at trial. There was a rational basis for that decision. The position advanced by counsel for the applicant on this appeal differed from that taken by trial counsel. It is not uncommon for a different view to be taken after a trial regarding tactical decisions made during a trial. That is an insufficient basis to establish that a trial has been unfair. In circumstances where the decision not to adduce evidence of good character at the applicant's trial was a rational one, no miscarriage of justice has been established.
45. I propose that leave to appeal be granted but that the Court dismiss the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 March 2017