Neil v R

Cases Cited: Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
BQ v The King (2024) 279 CLR 124; [2024] HCA 29
Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Greenhalgh v R [2017] NSWCCA 94
Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33
Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44
Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
R v Farquhar (Court of Criminal Appeal (NSW), 29 May 1985, unrep)
R v Murphy (1985) 4 NSWLR 42
R v Wasow (1985) 18 A Crim R 348
Radburn (a pseudonym) v R [2025] NSWCCA 125
Sanchez v R [2009] NSWCCA 171; 196 A Crim R 472
Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25
Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4
Warton v R [2025] NSWCCA 5

Category: Principal judgment

Parties: John Neil (Appellant)
Rex (Respondent)

Representation: Counsel:
B Walker SC / T Woods (Appellant)
E Nicholson / C Tran (Respondent)
Solicitors:
Jeffreys Lawyers (Appellant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2022/106513

Publication restriction: Publication of names and any information or material that may lead to the identification of the complainant is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, John Neil, was convicted, following a trial by jury, of one count of sexual intercourse with a child under 10 years without consent, contrary to s 66A of the Crimes Act 1900 (NSW). The indictment alleged that the offence occurred between 1 January 1989 and 31 December 1990, when the complainant, GS, was aged between 8-9 years.

At the time of the alleged offence the applicant and his wife were friends with the complainant’s parents; their children also attended the same school and were friends. The alleged conduct was said to have occurred during a social gathering at a family home in the Southern Highlands.

The applicant seeks leave to appeal against his conviction on the sole ground that the trial miscarried because the trial judge failed to direct the jury as to the relevance of the applicant’s good character in assessing his credibility as a witness.

The Court held (Adamson JA, N Adams and McGuire JJ agreeing) dismissing the appeal:

Failure to direct jury on good character evidence

(1) There is no rule which requires a direction about good character to be given to the jury. Further, if a good character direction is given at all, the jury need not be directed that evidence of the accused’s good character is relevant to the assessment of the accused’s character as well as to guilt: [76].

(2) In the present case, the jury was neither told by counsel nor directed by the trial judge that they could not take the applicant’s good character into account on credibility. The Crown merely submitted that the jury “would not be impressed or convinced by [the good character] evidence”: [78].

(3) While there is a well-established practice of trial judges directing juries that they may use an accused’s good character both on the issue of guilt and in assessing credibility, deviation from that practice does not of itself amount to error. The trial judge was not positively obliged to give such a direction and no irregularity or error of law has been established: [82].

(4) In any event, there was no real risk that any omission to give such a direction deflected the jury from its fundamental task of deciding whether the prosecution proved the case beyond reasonable doubt. The evidence of the applicant’s good character was not challenged by the Crown; the defence counsel relied heavily on it; and in summing up the trial judge referred extensively to it and directed that good character was relevant to the likelihood of the applicant committing the offence: [83]-[85].

(5) Neither counsel nor the trial judge indicated to the jury that it could not use the evidence of the applicant’s honesty when considering his credibility. The trial judge’s extensive reference to the evidence of the applicant’s honesty in the summing up removed any risk that the jury would fail to appreciate that they could use the evidence to assess the applicant’s credibility, even in the absence of a positive direction to that effect: [86].

(6) No inference can be drawn from the jury note referring to “honesty and integrity”. The trial judge expressly invited the jury to clarify what was meant by the note but, without any clarification being given, the jury indicated in a further note that it had reached a unanimous verdict of guilty. This compels the inference that, whatever the words in the earlier jury note meant, they did not stand in the way of the jury’s deliberations or its capacity to reach a verdict: [79].

(7) The requisite leave ought be granted but the appeal ought be dismissed: [89].

Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25; Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66; R v Murphy (1985) 4 NSWLR 42; Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32; Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15; Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4; Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33, considered.

JUDGMENT

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

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

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

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

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

The trial

The prosecution case

The background

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

The circumstances of the offending

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

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

The alleged offending conduct

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

Evidence of complaint

To the complainant’s sister

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

To NS (whom the complainant subsequently married)

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

To the complainant’s mother

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

Tendency evidence

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

He came across, and then slid his hand in through the front at my vagina, and then another hand in through the back, through my buttocks, and carried me across the monkey bars in that position.

14. She clarified this evidence by saying:

He put one hand in through the front of my legs and supported my vagina, and the other hand in through, between my buttocks, and supported me through the back side as well.

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

I genuinely didn’t react, I was in shock, I was nine, so I allowed him to continue to take me across the monkey bars, but then at the end of that, I got down and walked away.

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

The applicant’s case

The applicant’s evidence

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

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

Q. Have you ever been convicted of any criminal offence?

A. No.

Q. At the time you were charged in relation to that matter, did anything happen in relation to your employment as a school teacher?

A. Yes, according to the rules I was suspended until the - until it ran its course.

Q. Did you resume teaching upon completion of the court proceedings?

A. I did.

Q. From that time until you retired at the end of 2011, were you ever the subject of any other sexual allegation for the remainder of your teaching career?

A. No.

(Emphasis added; see below.)

The Crown’s application following the highlighted exchange

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

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

By way of further background, it was in the course of hearing that argument and in the course of my understanding of the proceedings that the Crown indicated it would not object to a good character direction being given.

As I sit here, and I do not say this critically, I was under the impression, I still am under the impression that there were no restrictions to be placed on that character direction. I formed that view very clearly for a number of reasons. One, I was told that the defendant/accused has never been convicted of any offences. Two, not immediately but at some point, early in the trial, I became aware through Mr McCallum representative for the defendant/accused that character witnesses would be called.

At least from those two factors, I had the clear view that the full character direction would be available and one would say to interpolate what I have just said very quickly or briefly, if there were some form of restriction on the character, evidence one would think, for example, that there would be a restriction on the nature and extent of the case to be called by the defendant/accused. I only say that by way of observational point, that is not determinative in what I am about to say.

The applicant’s wife’s evidence

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

Character evidence adduced on behalf of the applicant

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

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

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

Certainly not, and I find it very hard to believe that these allegations have even been raised from my view of John Neil.

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

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

No, not, not in the least. I’m just extremely surprised that those two allegations have been made, because from my assessment of his character, and my observation of his behaviour over seven years, I find that really difficult to believe.

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

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

Discussion between Bar and Bench about directions

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

That’s what Mr Crown said in support of that. “Remember the character witnesses but don’t forget the obvious.” Which is through Detective Egan, that he actually is the one that pronounces there’s no convictions. Mr Crown said that’s where it starts, the availability of that direction. So, yes, I included that.

The closing submissions

The Crown closing

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

I want to say something about the accused’s evidence in these proceedings. The accused did not have to give evidence in this case because he doesn’t have to prove his innocence. His Honour will say more about that later. It’s for the Crown to prove the case against the accused beyond reasonable doubt.

Members of the jury, because the accused did give evidence you can consider his evidence as you would any other witness in these proceedings. You would scrutinise his evidence carefully as you would any other witness who’s given evidence in these proceedings.

There are aspects of the evidence that the Crown says are significant because they show that he was either being evasive or untruthful about certain things.

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

But, of course, there’d been some very confusing evidence the day before about whether he said he knew there was a staircase there, he didn’t know there was a staircase there, whether there was a hallway there, didn’t know whether there was a hallway there, and he never climbed the staircase, but he could hear children upstairs and he knew children went up there. Very confusing evidence, members of the jury. It took a long time to extract it. The Crown says you would not find Mr Neil to be a witness who told the truth about those things. Why? Because he committed the offence against [the complainant].

You’re going to hear in this case that the accused [is] able to raise good character, and he is, because you’ve heard evidence that he has no criminal convictions so he can raise good character evidence, but ultimately the Crown would say, for all the reasons that I’ve outlined, you would not be impressed or convinced by that evidence. Thank you, members of the jury.

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

The defence closing

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

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

The last reason, the fifth reason that I want to submit to you should raise a doubt in your mind about whether the accused is guilty of this offence concerns his prior good character. You heard evidence that he’s now 73 years of age. He was a primary school teacher for essentially all of his working life and a few years in the bank before going to teachers college. But he was a primary school teacher for all of his working life save for that short period when he was stood down while the [EH] proceedings ran their course.

Notwithstanding that that allegation was made against him in 1990 and that he was charged, and you know there were court proceedings in relation to that, the fact is John Neil at 73 years of age has never been convicted of anything. Nothing. He’s never been convicted of any criminal offence. When you get to 73 years of age with a clean criminal record it has to count for something, particularly in a case like this where he’s alleged to have committed an offence 35 years ago, and particularly when he’s confronted with the allegation from more than 30 years ago that essentially depends upon the evidence of a single witness.

You’ve heard evidence from a number of people in this case who know him pretty well, have known him over long periods of time, some longer than others. You might think some of those people by the nature of their own backgrounds are likely to be pretty good judges of character. Margaret Pomfret, who was a nurse for 50 years. Greta Martin, who was a primary school teacher for 40 years and taught with the accused for the last few years of the accused’s professional life. Robin Kramar, who was a professor of human resource management. Andy Madigan, who you might think was a pretty down to earth sort of bloke who with his background and experience as a stock and station agent would be a pretty good judge of character as well.

They all told you what they know of his character from their own experience and interactions with him but, most importantly, they all told you that their assessment of his character was in no way affected by their knowledge of what was alleged against him in 1990 concerning [EH] at school and what’s alleged against him now. Their assessment of John Neil’s character is not in any way affected by their knowledge that shocking sexual allegations involving young children had been made against him.

I’m not standing here suggesting to you that people don’t commit offences for the first time or that John Neil’s prior good character somehow provides him with any sort of [defence] to this charge. I’m not submitting that at all. But it is something that I submit you can and should take into account when you**’re assessing first of all the likelihood of him committing the offence he’s alleged to have committed in the circumstances he’s alleged to have committed it**.

You should take it into account in assessing the honesty of his denial of the allegation, which after 35 years is basically all he can do, to deny the allegation. In assessing the honesty of his evidence concerning the frequency that he and his wife visited the Hill household, he was under no obligation to go into the witness box and give evidence. I said to you at the outset of this case all he can do, all a man in his position can do is to deny the offence, pretty much. But he went into the witness box, subjected himself to cross-examination.

I’m not going to say too much about his evidence because you assess it in the way that you do the evidence of all of the other witnesses in the case. You’d have difficulty rejecting what he says, I submit to you, about the frequency of the social events that he attended at the Hills house in circumstances where the best the Crown can do is to rely upon the evidence of other witnesses about their own general practices based upon their own distant memories. So you could never reject what the accused says about it, members of the jury, and when you factor his good character over the top of that, his evidence should raise a real doubt in your minds about those things.

So those five reasons that I have advanced to you, I don’t say that any one of them in and of itself is the silver bullet to this case, but what I say to you is that when you consider them in combination, together they should raise a reasonable doubt in your mind. [The applicant’s trial counsel listed the first four matters] and **the accused’**s good character. All of those things in combination should raise a doubt in your minds, members of the jury, as to whether John Neil is guilty of this offence.

(Emphasis added.)

The summing up

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

It is important you understand that the accused must be found not guilty if their guilt has not been proved beyond reasonable doubt and that they are entitled to the benefit of any reasonable doubt that you may have at the end of your deliberations. It follows from this, first, if you believe the accused’s evidence, obviously you must acquit. Second, if you find difficulty in accepting the accused’s evidence but think it might be true, then you must acquit. Third, if you do not believe the accused’s evidence, then you should put it to one side.

36. In summarising the Crown closing, the trial judge said:

The Crown submits to you that the accused is able to raise good character evidence, but you, the jury, in the circumstance of this case, would be unimpressed with that evidence.

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

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

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

That evidence has not been challenged by the Crown. Therefore, you should accept the fact that the accused is a person of good character. The law provides that a jury is entitled to take evidence of the accused’s good character into account in favour of him on the question of whether the Crown has proved the accused’s guilt beyond reasonable doubt. The fact that the accused is a person of good character is relevant to the likelihood of his having committed the offence alleged. You can take into account the accused’s good character by reasoning that such a person is unlikely to have committed the offence charged by the Crown. Whether you do reason in that way is a matter for you.

None of this means, of course, that good character provides the accused with some kind of defence. It is only one of the many factors which you are to take into account in determining whether you are satisfied beyond reasonable doubt of the guilt of the accused. What weight you give to the fact that the accused is a person of good character is completely a matter for you, but you should take the fact into account in the ways I have indicated.

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

The jury note

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

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

Please explain the 3 types of evidence clearly

1. witness

2. documents exhibit

3. agreed facts

with especial [sic] attention to the witness statement

Thank you

Define character versus integrity

(Emphasis added.)

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

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

The second part of the question in relation to defence character versus integrity, I would need that to be clarified. And all I will say is this, is that a – a comment? Is that a question? Or is that a statement? Or do you need assistance in relation to that matter? So I need you to clarify that. So as I have told you, I have redirected in relation to the types of evidence, I have told you about the availability of transcript, the last part of that question, I would need that clarified. So I will ask you to retire on that basis. Thank you very much ladies and gentlemen of the jury. Thank you.

(Emphasis added.)

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

The relevant principles

A challenge on the basis of an error or irregularity in the trial requires materiality to be established

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

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

In each instance where the materiality threshold is met, the error or irregularity will be one that could realistically have affected the jury’s reasoning to a verdict of guilty. The inquiry required by this materiality threshold or test does not collapse into the inquiry undertaken in applying the proviso. The question posed by the materiality test looks to the possible effect of the error or irregularity on the trial that was had. …

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

The principle that is identified is expressed at a high level of abstraction: did the judge’s instructions deflect the jury from its fundamental task of deciding whether the prosecution proved the elements of the charged offence beyond reasonable doubt? … Whether there has been on any other ground whatsoever a miscarriage of justice must always require consideration of the whole of the judge’s charge to the jury. In every case, the ultimate question must be whether, taken as a whole, the judge’s instructions to the jury deflected the jury from its proper task.

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

The meaning and relevance of evidence of good character and whether a direction is required

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

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

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

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

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

There is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used.

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

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

In R v Farquhar, the summing-up contained no reference at all to the availability of evidence of good character in relation to the credibility of the appellant. In particular there was nothing akin to the direction in the present summing-up that evidence of good character is introduced on the question of guilt not on credit. Moreover, no request for a further direction on this topic was made.

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

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

57. After further reference to authority, the Court continued:

This line of authority shows that, whilst the primary significance of evidence of good character is upon the unlikelihood of guilt, there is a corollary to the effect that evidence of good character can be used with reference to credibility of the accused in his denial of the charge, and hence the unlikelihood of his guilt. The omission to give a specific direction on the credibility aspect may or may not be regarded as resulting in a miscarriage, according to the particular circumstances of the case in hand.

(Emphasis added.)

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

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

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

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

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

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

30 … this Court should not depart from the rule that a judge is not obliged to direct the jury concerning the accused’s good character. The preferable position is that the trial judge must retain a discretion as to whether to direct the jury on evidence of good character after evaluating its probative significance in relation to both (a) the accused’s propensity to commit the crime charged; and (b) the accused’s credibility.

31 The judge may conclude that the good character evidence adduced is of probative significance in relation to (a) only, (b) only, both (a) and (b) or neither (a) nor (b), and can direct (or not direct) the jury accordingly. Whether the discretion has miscarried in a particular case will depend upon the facts of that case. But Australian courts should not now introduce a rule that a direction on character is always required once the accused has adduced evidence of good character.

32 Two considerations lead me to this conclusion. First, the difference between the use of good character evidence and the use of bad character evidence in a criminal trial is logically anomalous and, while that difference is too deeply rooted in the law to be removed by judicial decision, it should not be widened. Second, in cases where good character evidence has no logical connection with the elements of the offence, a mandatory direction is likely to divert the jury from properly evaluating evidence which more directly and logically bears upon the guilt of the accused and, in cases like R v Anderson and R v Aziz, such a direction may even confuse the jury.

(Emphasis added and footnotes omitted.)

64. When applying these principles, McHugh J held:

53 In my opinion, the character evidence relating to Mr Melbourne was not of such probative significance in relation to his credibility as to require the trial judge to give a direction that the evidence bore favourably upon Mr Melbourne’s credibility. The evidence was that the accused had no previous convictions other than a conviction for drink-driving in 1975 and was not “adversely known to the police”. Various descriptions of his character and personality were given by those who knew him, such as: (a) evidence from Mr Gooch that the accused was a “quiet man”, a man who was “always gentle”, and who, apart from this occasion, had “never” been “aggressive”; (b) evidence from Mrs Barnes that the accused was “very quiet”; (c) evidence from Mr Daniels that the accused was “a very amiable sort of person”; (d) evidence from Mrs Hinde that the accused was “a very quiet, well-behaved gentleman”.

54 None of this evidence had any direct probative bearing on the truthfulness or credibility of the accused. It was all directed to the unlikelihood that he would commit the offence charged. The trial judge gave an adequate direction in this regard. Whether or not the trial judge intended, but forgot, to give a credibility direction with respect to the character evidence, no miscarriage of justice has occurred. If her Honour had given such a direction, it would have given the accused an advantage to which in point of law he was not entitled. Not only was this not a case requiring a credibility direction, in my opinion it would have been a wrongful exercise of discretion to have given it.

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

… since the decision of this Court in Melbourne v The Queen, whether to give a direction at all, or the form of it if given in relation to character evidence will require close attention to the relevance of the evidence to the offence, and to the issue or issues to which the evidence relates. …

The effect of an omission to give a non-mandatory direction

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

The present application

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

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

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

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

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

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

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

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

The note during deliberations … asking his Honour to define “character versus integrity” demonstrated an understanding that the applicant’s character and the extent to which it was relevant was at the centre of the dispute between Crown and defence. His Honour did not address it in a meaningful way. The applicant relies on this as context for his complaint that the trial miscarried rather than as a discrete error.

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

It was necessary in the applicant’s trial for the jury to be directed that the substantial body of evidence concerning his good character (honesty and integrity) was relevant in assessing his credit as a witness. The failure so to direct the jury constitutes a miscarriage. There is a significant possibility that the omission adversely affected the outcome of the trial.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rule 4.15

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

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

4. Whilst I do not still have a clear recollection of that part of the summing up, I do not believe it occurred to me at the time that the direction failed to convey that the appellant’s good character could be used in the jury’s assessment of his honesty and credibility as a witness. Regrettably, I acknowledge that was probably an oversight on my part.

5. I now appreciate that the direction was inadequate after having seen that part of the transcript. Had that occurred to me at the time, I would have requested the trial judge to redirect the jury in terms of the “full” character direction.

6. It was certainly not a forensic decision on my part not to request the trial judge to provide any further explanation on that aspect of the appellant’s good character. There was no forensic advantage to the appellant by not doing so.

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

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

Counsel may well have thought objectively that he had secured as best he could for his client the advantages of that direction without any forensic risk.

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

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

Proposed orders

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

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

98. Grant leave to appeal.

99. Dismiss the appeal.

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

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

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

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

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

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

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

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

108. McGUIRE J: I agree with Adamson JA.

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