Parsons (a pseudonym) v The Queen [2016] VSCA 17

[PROSECUTOR]: Do you say that [CPB] was not correct when she said that there were two occasions?---She was not correct.

When her parents weren't there?---She was not correct.

So you categorically deny that there were any occasions when her parents were not in the house?---Again to the best of my knowledge.

Well you would know, wouldn't you? I mean, you've gone and explained how you went to great lengths and made a huge issue of making sure there was always a parent there, and you don't think there was one occasion when there wasn't. So do you categorically deny that there was never an occasion when there wasn't a parent in the house?---As I said before, there could have been a parent in the house and I wouldn't have known it. [CPB's father] sometimes slipped in when we were doing the massage. At least there was someone there.

You just said there could have been a parent in the house?

But you wouldn't have known it?---[CPB] wouldn't have told me. No.

So you're saying that there could have been situations where you massaged her, not knowing if there was a parent in the house?---Um, on the two occasions she mentioned, not any other time. They always sat at the computer or in the kitchen or on the couch. There was always someone there.

But your evidence just a couple of questions ago was there could have been a parent in the house but you wouldn't have known it. You said that?---Yes.

All right. So therefore you accept that there were occasions when you didn't know whether or not there was a parent in the house. You just didn't know?---Um - - -

So you didn't make a huge issue of making sure there was always a parent in the house?---I would have asked [CPB] if there was anyone home and she would have told me yes or no.

Well again [CPB] was cross-examined and do you remember her being asked whether or not she was wrong about that?---Yes.

Well she wasn't asked if she was wrong about that, was she?

[CPB's mother] remembered one occasion when her (sic.) and [her husband] were leaving as you were beginning a massage, or about to begin a massage. So she gave evidence of there being one occasion where a massage took place when her (sic.) and[her husband] were not home?---But the sister was on the couch.

Yes, but you say you always made sure a parent was there. That's what you said in your record of interview?---Okay, maybe I made a mistake. Maybe I should have said there was someone present. As I said before, the record of interview was done at the police station and I was totally shocked.

But you said the issue is that, 'I made a point of every time we did it that there was a parent there. I made a huge issue of making that.' Are you now saying that that's not entirely correct?---Um, no, I made a huge issue with there being a parent present or at least someone that was viewing what we were doing.

But you didn't tell the police there might have been occasions when a parent wasn't there?---No, I didn't.

So with [CPB's mother's] evidence that there was a time when her (sic.) and [her husband] were leaving, and you were about to begin or had begun a massage with [CPB], what do you say to that? Do you say that that occasion happened?---It could well have. Yes.

You said before but there was [CPB's younger sister] sitting on the couch?---Yes.

Well did that happen on that occasion or were you just saying that?---No, I wouldn't make things up. I - we - an 18 month period three years ago. I presume she was on the couch. I can't be positively sure.

You can't be positively sure but she's also [CPB's] younger sister?---Yes.

So she's not really someone to supervise a massage, is she?

So if it was just [CPB's younger sister] sitting on the couch, that wouldn't be making sure there was always somebody supervising a massage?---No, but if something did go untoward, the sister would be there to support anything that went untoward, which it did not.

[CPB] was 16 and 17 when you gave her the massages?---Yes.

[CPB's younger sister] was younger?---A year younger.

And you're saying that you would rely on [CPB's younger sister] to be an appropriate supervisor for massaging [CPB] in her underwear?---Um, probably not, no, but as a - as a someone there to witness whether anything was untoward, she was.

['JF', another student's parent] also gave evidence, saying that you told her there were occasions when her parents were not home during the massages?---Yes.

And she said that you told her it was approximately five occasions?---I also told her there were 60 cases against me. I might have exaggerated to her.

Well - - -?---The seriousness of this offence is a huge one. I can't describe how serious this whole issue is to me and to [CPB's family]. I can't - - -

The question I asked you though, [applicant], if I can just pull you back and - - -?---Yes, yes.

- - - ask you to answer the question, is that you told [JF] that there were approximately five occasions when her parents weren't there during the massages?---Um, and I think my - my, um - - -

Did you tell her that?---Yes, and she said maybe when she was interviewed here, so in conversation looking back, I can't remember how many times I told her. It might have been three, it might have been two, it might have been ten. I can't remember what I said to her.

You've told her that on several on occasions?---It could well be.

Her parents weren't there when you gave her massages?---It could well be.

Yet you went to great pains and at great length to tell the police that there was always a parent there?---Um, I did, yes.

That was a lie that you told to the police?---No, I wouldn't say it was a lie. When I went there, I told the truth.

1. No objection was taken to this cross-examination by defence counsel. It can be seen that, by the conclusion of this portion of the cross examination, there was no dispute between the parties that there had been a number of occasions when a massage took place at the complainant's home without any other person being present. As it was not an issue in dispute by the end of the trial, the absence of 'puttage' on that issue assumed no further relevance. The prosecution did not rely upon the breach to found any argument before the jury. No suggestion of recent invention was or could have been made. The prosecutor's only submission in closing was that the evidence of the complainant, her mother and JF demonstrated that the applicant had initially told a lie in his record of interview.
2. For completeness we should, however, address the applicant's submission that, as the prosecution 'was clearly on notice about this issue', it was inappropriate for the prosecutor to cross-examine the applicant in the manner in which she did so as to suggest there had been a breach of the rule in Browne v Dunn. We reject that contention. Notice will not ordinarily relieve a party from compliance with the rule in Browne v Dunn. In limited circumstances, pre-trial notice - where the substance of the evidence proposed to be given by each side is notified in advance by affidavit or statement - has been regarded as sufficient notice to a witness of the submission ultimately intended to be put to the court. But the rule in Browne v Dunn will require more extensive cross-examination in criminal trials and in cases where all the evidence is given orally.[18] Ordinarily, where detail in support of an allegation is known to the cross-examiner and is to be the subject of evidence, there must be sufficient puttage of that detail so that it can be said that the witness was given an adequate opportunity to respond, not only to the allegation but to its essential features, which may include the time, place and circumstances of the occurrence.[19] Further in Rees v Bailey Aluminium Products Pty Ltd,[20] this Court said that 'if matters in controversy are not "put" to the witness in cross-examination, the tribunal's capacity to assess the merit of the allegation subsequently to be made and the credit of the witness is likely to be impeded'.[21]
3. At the time the complainant was cross examined, only the applicant and his counsel knew whether the applicant would maintain the claim he had made in his record of interview that there was always someone present when he conducted a massage of the complainant. The record of interview was not yet in evidence. If the assertion in the interview was to be maintained, the complainant's evidence to the contrary had to be challenged. In evidence in chief the applicant did maintain that claim. Hence, there was a breach of the rule as the complainant had not been challenged.

(3) The complainant was uncomfortable being massaged in presence of her parents

1. The applicant acknowledged in cross examination that the complainant and her parents had all given evidence that, if one of her parents came into the room, the applicant would stop and talk to them and that the massage took longer if one of the parents walked into the room. In part, the relevant cross-examination was as follows:

Why couldn't you massage and talk at the same time?---Um, generally if you have a massage, you go somewhere with a masseur in a room where no one can see you, in your underwear with a towel over you, and she did not feel comfortable with her father or her mother viewing her with a towel around her, laid on a table.

All right. Well, [the complainant] was cross-examined and you listened to her evidence in court?---Yes.

About being uncomfortable with her mother and father around?---No.

No, she - - -?---She might not have been asked the question, but - - -

Sorry, I'll ask the question again, it was confusing. She wasn't asked in cross-examination, or it wasn't put to her that she was uncomfortable with her mother and father in the room when she was getting massaged?---No.

Is today the first time you're telling anybody that?---This would only be the second time I've heard that she's ever spoken to anyone officially about this case.

You didn't speak to your barrister about this case?---Yes, I did, yeah.

Yes, and your barrister didn't ask [the complainant], or put to her that she was uncomfortable when her own mother and father were in the room when you were massaging her?---No, he didn't. He didn't.

You said before that [the complainant] was uncomfortable because she was in her undies and a towel when her parents came near?-- Yes ......

Remember? You've gone on to give evidence that you thought [CPB] didn't want her parents to see her in a state of partial undress?---Correct.

She was not asked that when she was cross-examined, was she?---She was not.

What did she say to you?---Um, I can't remember exactly.

No? Because you have spoken about this case with your barrister?---Yes.

[CPB] was called as a witness and cross-examined by your barrister?---Yes.

And it was never put to her that she was embarrassed about being in a state of partial undress in front of her parents?---It wasn't.

So you can't remember what she said to you?---No, no.

So I'll ask the question again. What does your belief about her being embarrassed about being in a state of partial undress in front of her parents have to do with whether you could talk and massage at the same time?---Okay. So if we are massaging what we would do is - if we were massaging that area of her leg she didn't want to be seen in that position by her parents.

And she was never asked that when she was being cross-examined, was she?---No, she was not.

Is today the first time you're telling anybody that?---Um, I'm probably telling you a lot of things today, but they're all the truth - they're all true.

I'll ask the question again. Is today the first time you're telling anybody that [CPB] told you she was embarrassed about her parents seeing her getting massaged in a state of partial undress?---Yes.

1. Counsel for the applicant did not object to the prosecutor's questions. In this Court it was submitted - and could not be disputed - that the questioning was accompanied by the clear suggestion of recent invention. The applicant in his written case acknowledged that 'arguably' the claim that the complainant felt uncomfortable being massaged in her parents' presence should have been put to the complainant. Had counsel had such instructions, it was plainly a matter that should have been put to the complainant to provide an innocent explanation for why he would stop massaging the complainant and to rebut the inference that the prosecution would have the jury draw from that fact. As matters transpired, it was made clear by the applicant that he had given no such instructions to his counsel. As with the first issue concerning the Facebook message, the reasons why no such questions were asked ceased to be relevant.
2. In closing, the prosecutor reminded the jury that the applicant admitted that until he gave evidence he had not told anyone that the complainant was uncomfortable. The prosecutor submitted that he had made that up 'on the spot'. The trial judge briefly reminded the jury of that submission in her charge, without elaboration, but gave no other directions.
3. The applicant makes the same complaints with respect to this issue as he did on the first issue. For the reasons we have advanced on that issue, the complaints have no substance. No request for a direction was made. For the reasons given above, it would not have been favourable to the applicant. A direction as to the rule in Browne v Dunn would have been irrelevant, the applicant having conceded that he had not provided his counsel with the explanation he ultimately gave in evidence. The jury was faced with a simple credit issue concerning the applicant's explanation for stopping massages when a parent came into the room. It required no direction from the trial judge.

(4) The complainant agreed that her father not enter the room during massages

1. It was submitted that a miscarriage of justice flowed from cross-examination of the applicant about his counsel's failure to cross-examine the complainant about her agreement that her father not enter the room during massages.
2. The prosecutor's cross-examination included the following:

... You encouraged [the complainant's father] by your behaviour and what you would say to not come in during the massages?---So that we could get the massage finished and - finished. [the complainant] agreed with that. That was what we - we did.

Well, was [the complainant] ever asked if she agreed to that when she was being cross-examined?---She didn't - - -

No?--- - - - but she did say that the massages went on too long and we wanted to get them all done.

Is that the first time you've told anybody that? Is today the first time you've told anyone that [CPB] agreed for her father not to come into the room?---I didn't say that.

What did you say?---I said that this is - that I discouraged both parents from coming and talking to me whilst I did the massage so that we could get the massage done faster. I did not discourage them from sitting and watching. It was just communicating with me.

So you accept that you did discourage them from coming in?---Yes.

1. This issue received no attention in closing addresses or in the charge.
2. On appeal the applicant was content to repeat the submissions made with respect to issue number (3). The respondent contended that, as with issue (3), the applicant had sought to attribute responsibility for discouraging her father from entering the room to the complainant.
3. For the reasons we have given with respect to issues numbered (1) and (3), there is in our opinion no substance in this complaint.

(5) Massaging of the complainant's upper inner thighs

1. The applicant was cross-examined as follows about the failure of his counsel to cross-examine the complainant about him never massaging her upper inner thighs:

You massaged her upper thighs often?---I massaged her thighs. I never massaged her upper thighs.

You massaged her bottom?---With the towel over her, yes.

And you say you never massaged her upper thighs?---Upper inner thighs, never.

[the complainant ] was cross-examined and you were listening - - -?---Yes.

Did you ever hear it put to her in cross-examination that you never massaged her upper thighs?---Um, no.

Is today the first time you have ever told anyone that you didn't massage [complainant ] upper thighs?---No.

Did you tell that to her (sic) barrister?---Correct.

1. Again, counsel for the applicant at trial took no objection to the cross examination.
2. Counsel for the applicant in this Court submitted, however, that the cross-examination was improper. It was submitted that, whilst it was accurate to say that the denial of massaging the complainant's upper inner thighs was not expressly put to her in cross-examination, the complainant had given scant evidence that the applicant had massaged her upper inner thighs. The only evidence concerning the inner thigh was in relation to the events founding charge 1, which did not in terms refer to the upper inner thigh. Further, so it was argued, 'the issue was clearly raised in the sense that the defence case from the very beginning was that there was no improper massage at all'. It was also submitted that, in any event, the complainant was cross-examined to the effect that it would have been false to say the applicant massaged her so close to her vagina that he was 'almost fingering her'.
3. It was acknowledged on appeal by both parties that there was a misunderstanding resulting in confusion between the applicant and the prosecutor on this issue. The applicant in substantial parts of his evidence had not disputed that part of his massage involved the upper thighs. In the impugned above passage he drew the distinction between 'upper' and 'upper inner thigh.' The prosecutor acting upon the literal meaning - that he disputed massaging the upper thigh - put the questions that she did.
4. Having regard to much of the applicant's earlier evidence and the uncertainty as to what the applicant was in fact denying in the impugned passage, it is not at all clear that there was any breach of the rule. As the applicant points out in his submission, it had been made clear to the complainant in cross examination that what was disputed was that the complainant was massaged in the area immediately proximate to her vagina or anus. Had the prosecutor approached the matter with greater circumspection, it may have become apparent to her that there was a misunderstanding of the applicant's answers and that he was not disputing that he had massaged her upper thighs. Unfortunately, there was no objection to this cross examination or clarification of what the applicant was disputing.
5. Defence counsel did not regard the matter as one requiring objection or clarification in re-examination. The evidence was not the subject of argument in closing addresses. No request was made for a direction to the jury. The issue received no attention in the charge. It was not of such a nature as to give rise to any unfairness.
6. This ground is not made out.

Ground 2 - Failure to adduce evidence of good character

1. When cross-examined by the applicant's counsel, the informant agreed that the applicant had 'never been convicted or found guilty of any offence'. Beyond that, however, no evidence was led concerning the applicant's good character. Moreover, there was no reference to the applicant's good character in his counsel's final address.
2. Ground 2 complains that the failure of the applicant's counsel to adduce evidence of the applicant's good character in a 'particular respect' resulted in a substantial miscarriage of justice. As will become clear, however, it is impossible to conclude other than that the conduct of counsel now criticised was the product of a rational forensic decision. Essentially for that reason, ground 2 cannot succeed.
3. Counsel for the applicant in this Court acknowledged that, notwithstanding that trial counsel did not press for a direction on good character, the judge gave directions on 'general good character'. He pointed out, however, that s 110 of the Evidence Act 2008 permitted an accused to adduce evidence that he or she is generally, or in a particular respect, a person of good character. Good character evidence 'in a particular respect' was available by way of evidence from several witnesses concerning the applicant's good reputation within the particular sporting community (that is, relating to the particular context in which the relevant conduct allegedly took place). As we understood counsel's oral submissions, the character 'in a particular respect' of which he spoke, was concerned with the absence of any history of sexual misconduct with teen-aged female students whom the applicant coached. So much was demonstrated by the evidence called on the applicant's plea in mitigation, which showed 'the plethora of good character evidence of this kind available to the applicant'. It was submitted that such evidence 'would have constituted a powerful defence to the allegations of sexual abuse', since it bore 'both on the unlikelihood of the commission of the offences and on the applicant's credibility'. Despite these matters, so counsel argued, evidence of the applicant's good character 'in a particular respect' was not adduced at the trial. The applicant thus was deprived of a direction in that regard, resulting in a substantial miscarriage of justice.
4. We pause to observe that, so far as evidence of good character is concerned, the plain intention of s 110 of the Evidence Act 2008 is to vary the common law 'all or nothing' attitude. It is thus open to an accused person to lead evidence that he or she is of good character 'generally' or 'in a particular respect'.[22] Evidence of good character in a particular respect might, for example, include evidence that an accused person has no prior history of sexual misconduct with children. All other things being equal, it would comprehend the kind of evidence that the applicant's counsel submitted was available to be called in this case; namely, the applicant had no history of sexual misconduct with teen-aged female students whom the applicant coached. So much is clear from Zurita,[23] in which the New South Wales Court of Criminal Appeal said:[24]

It is clear that the effect of s 110(1) was to vary the common law attitude to character, which was, as the trial judge expressed it, 'all or nothing'. The section permits an accused person to put forward that he or she is 'either generally or in a particular respect' a person of good character. Defence counsel was seeking a ruling as to the consequence of the appellant raising his character either generally or in a particular respect, that being that he was not known to the police in respect of child sexual assault offences.

The course adopted by defence counsel finds support in the judgment of this Court in R v PKS (CCANSW, 1 October 1998). In that case, unlike the present, the issue of the accused's character was raised at the conclusion of the Crown case. In the context of the circumstances in that case, this Court indicated what is needed to be done in connection with the issue of good character in the following series of propositions (pg 8-10):

1. The first thing that had to be decided by the accused and his legal representatives was whether, his good character not having been put in issue in the Crown case, it should be raised as an issue in his own case.
2. That decision needed to be taken in the light of the provisions of Part 3.8 of the Evidence Act 1995 (NSW), and in particular the provisions of sections 110 and 112 of that Act.
3. Section 110(1) gave the accused a clear choice. He could put in issue the proposition that he was 'generally a person of good character'. Alternatively, he could put in issue the proposition that he was 'in a particular respect a person of good character'.
4. In the event that he decided to put in issue that he was 'generally a person of good character, the accused was vulnerable to an application by the Crown, and made pursuant to section 112 of the Evidence Act, to cross-examine him so as to elicit that he had, in fact, prior convictions, albeit old ones, for offences of dishonesty.
5. If he decided to put in issue that he was 'in a particular respect a person of good character', namely in respect of sexual misconduct with young children, whether his own children or the children of others, then the accused was not so vulnerable to cross-examination upon his old convictions for dishonesty. That was so because of the terms of section 110(3) of the Evidence Act. Such a construction of section 110(3) was adopted by Higgins J, of the Federal Court of Australia, in Gabriel v The Queen (unreported: Federal Court of Australia: Full Court, 25 June 1997).

In the light of what is stated in the foregoing propositions, counsel for the accused was entitled, in our opinion, to apply to the trial Judge for rulings on the questions:

(a) whether, if the accused gave evidence that he was 'generally a person of good character', his Honour would refuse to permit cross-examination upon the previous offences of dishonesty, so refusing either by the method of refusing leave pursuant to section 112 of the Evidence Act; or by the method of excluding such cross-examination in the exercise of the discretion conferred in that behalf by section 137 of the Evidence Act; and

(b) whether, if the accused gave evidence that he was 'in a particular respect a person of good character', namely in respect of sexual misconduct with young children, his Honour would uphold a submission that section 110(3) of the Evidence Act did not permit cross-examination upon the previous offences of dishonesty.

1. As we have mentioned, the evidence before the jury concerning the applicant's good character consisted solely of the informant's evidence as to the applicant's lack of prior convictions and findings of guilt. Against that background, prior to the charge the judge discussed with counsel the directions that it was necessary to give to the jury. The following passage illuminates the attitude of the applicant's counsel to directions on good character:[25]

HER HONOUR: Character. You asked the informant whether [the applicant] had any priors.

[COUNSEL]: Yes, that's right, so I raised it in that respect.

HER HONOUR: So are you content with a - well it's a matter for you. Well what sort of, how broad are you seeking the character?

[COUNSEL]: It was raised in a very limited way, Your Honour.

HER HONOUR: I mean, the sort of direction I would give, and have given in other similar cases is really you've heard evidence that he is a person of good character in the sense that he has no prior convictions or findings of guilt against him for any type of offending. But there are two ways in which you could use that, and basically it's a fairly broad character.

HER HONOUR: I mean, it directs them that that's, you know, you may consider a person who hasn't got any prior findings of guilt or whatever, whatever.

HER HONOUR: I think that it doesn't go more broadly than that in terms of character evidence.

[COUNSEL]: No. Can I say, Your Honour, I wouldn't even particularly seek one, but I don't think it can be left up in the air is the problem. So in those circumstances in my submission that is an appropriate direction to give the jury on the issue of character.

HER HONOUR: It doesn't have to be given, I suppose. But generally in that circumstance defence request it, but I'm not trying to tell you how to run your case. If you don't want me to give it, I would hear what [the prosecutor] has to say about that.

[COUNSEL]: Look, we have had some discussion about this issue, Your Honour, and in the circumstances it's the more conservative approach I suppose for me to seek it. In those circumstances I will seek it.

HER HONOUR: All right. And I won't over emphasise it, if that makes sense.

1. In the result, in the course of her charge the trial judge gave the following directions on good character:

You have heard evidence that [the applicant] was of good character in the sense that he did not have any prior convictions or findings of guilt in respect of any kind of offending at all. If you accept that [the applicant] is a person of good character in that respect, then there are two ways that you can use it. You can use it when assessing the credibility of his evidence and his denials of the prosecution case. It is a matter for you, but a person who is of good character may be generally thought to be more trustworthy than other people. You might be less willing to accept the prosecutor's evidence than if the [applicant] was not a person of good character in that way.

Second, you can use it when determining the likelihood that the [applicant] committed the offences charged. It is generally believed that a person of good character is unlikely to commit a criminal offence or less likely to commit a criminal offence. So you might be less willing to accept the prosecution's allegations.

Of course that does not mean that you must find the [applicant] not guilty, if you accept that he is a person of good character. The mere fact that a person is of good character in the sense of not having any prior convictions or prior findings of guilt cannot alter proven facts. It can only help you determine whether or not those facts have been proved. In addition, you should keep in mind that a person who [has] previously been of good character can commit a crime for the first time.

1. No exception was taken to these directions.
2. Pausing at this juncture, it may be observed that the bare record of the trial suggests, first, that trial counsel chose to raise good character in a 'very limited way' (that is, that the applicant had no prior convictions or findings of guilt); secondly, although he did not 'particularly seek one', counsel accepted that the judge should give directions of the kind that were given; thirdly, the trial judge gave the jury directions on the applicant's good character in conformity with what she had anticipated in discussion with counsel; and, fourthly, no exception was taken to the directions that were given. Moreover, it is plain that the applicant received the benefit of a direction which instructed the jury that they could use the applicant's good character as bearing on 'the credibility of his evidence and his denials of the prosecution case', and as going to the unlikelihood of guilt.
3. Quite apart from the bare record of the trial, however, further light is cast on trial counsel's tactics by an affidavit that he swore, which was placed before the Court in unusual circumstances. Although the Court had not sought the affidavit[26] - it seems that it had been asked for by the Registry on the initiative of the Registry's officers - the hearing in this Court initially proceeded on a misapprehension by the parties that the affidavit had been asked for by the bench. Once the misapprehension was detected, the parties were invited to provide written submissions as to whether the Court should act on the affidavit's contents. As it transpired, the respondent submitted that the Court should have regard to the whole of the affidavit. On the other hand, the applicant's counsel submitted that the Court ought have regard only to the first five paragraphs, and should ignore the balance. Given the unusual manner in which the subject of the affidavit arose, as a matter of fairness the Court resolved to act on the applicant's submissions, and to have regard only to the affidavit's first five paragraphs.[27] Ordinarily however, the court would not be prepared to receive only a portion of such an affidavit.
4. In those first five paragraphs, counsel attested to the fact that the calling of evidence of good character was discussed with the applicant on a number of occasions. Counsel said that he was aware that there were a number of potential witnesses available to give evidence of the applicant's reputation and of their experience of him as a coach. In counsel's view, however, the leading of such evidence would have exposed the witnesses to cross-examination on material disclosed in the hand-up brief; and in particular, material to be found in the statement of four witnesses (those statements being exhibited to counsel's affidavit).
5. Counsel swore that, in addition to discussing with the applicant 'the risk that would have arisen had character been opened by the defence, it was also explained to the [applicant] that the good character direction would have been of no real benefit in his case where there was evidence of improper communication between himself and the complainant via Facebook'. It was asserted that the applicant's 'defence' was 'one where he conceded that his messages to the complainant were inappropriate'. Counsel said that he 'did not request a direction as to good character as no evidence had been led for that purpose'. He also stated that his cross-examination of the informant 'occurred after a specific discussion with the trial prosecutor, and was led to prevent any speculation by the jury that as to whether the [applicant] may have had any other prior convictions or findings of guilt'.
6. As we have said, counsel swore that he thought that the introduction of evidence of the applicant's good character, and the leading of such evidence, would have exposed the character witnesses to cross-examination on material to be found in the statement of four witnesses. The witnesses were husband and wife, A and B; their son, C; and another sports coach, D.
7. In his statement to police, A said that his son was coached by the applicant. He said that his son had once called him whilst on a training camp, and told him that CPB was sitting on the applicant's knee. A also said that, whilst on a tour, he and his wife tried to raise with the applicant their concerns about the 'contact' he was having with CPB, but that the applicant 'was sort of sweeping it under the carpet'. Further, A stated that he saw the applicant 'tickle' CPB on the hips - he also did that with the boys - give her 'piggy-back' rides and allow her to sit on his knee (although A said that he never saw the applicant touch CPB 'inappropriately'). He said that he confronted the applicant 'about the way he was with [CPB]', and terminated his services as a coach.
8. B told police that 'everything' that the applicant did with the complainant 'crossed that boundary that a coach shouldn't cross', including 'driving her everywhere', 'being more of a father figure' and 'always doing things for her'. She spoke of a camp where the applicant had said that he was not going to attend dinner, when 'lo and behold they [that is, the applicant and CPB] walked in late together'. B thought that the applicant had again 'crossed that boundary'. In her statement, B said that she did not see 'any inappropriate touching', although she did see the applicant massage the complainant's legs. She said that she spoke to the applicant about 'setting boundaries' with CPB, but the applicant said he was doing nothing wrong. B said that she spoke to other parents at the club about the applicant's interaction with the complainant.
9. C told police that other athletes would 'make jokes' about the applicant and the complainant. He said that whilst on a camp, the applicant went to a cabin to give CPB a massage. They were gone 'for a long time'. C called his father and said 'something was up'. He thought that 'something wasn't right' and that 'they were doing stuff'. C stated that he thought 'they were getting pretty touchy as well'. Ultimately, C asserted that the applicant 'pretty much broke all the boundaries a coach can break'.
10. D was a full-time professional coach. In June 2000, he was on tour with students, parents and the applicant. One evening, a parent who was sharing a cabin with the applicant told D he was 'uncomfortable with the situation' in the cabin he shared with him. D looked through the applicant's cabin window and saw him on the bed with a junior female athlete, 'E'. They were 'laying down on their stomachs up on their elbows', and 'were animated with each other mucking around'. D expressed the view that E 'wasn't supposed to be in there at 9.00pm shoulder to shoulder with the coach on the bed'. He said that he thought the applicant's behaviour that night was 'unprofessional from a coaching point of view' and something he 'wouldn't do as a coach'.
11. We doubt whether much (if any) of what was contained in the statements of A, B or C was admissible, it being mainly hearsay, conjecture and non-expert opinion. Moreover, we would regard the evidence to be derived from D's statement as containing elements of tendency - requiring it to meet a high threshold of admissibility[28] - and opinion. Whether D was capable of expressing the opinions that he did was by no means clear upon a reading of his statement.[29]
12. Despite the doubts we harbour about the admissibility of much of the content of the statements referred to, it is plain that, at least partly based on that content, trial counsel formed the view that some of the matters about which A, B, C and D spoke could be used to impugn the credibility of evidence which might be introduced through potential character witnesses. Hence, trial counsel made a deliberate forensic decision, informed by his assessment of the content of the statements referred to, and its potential impact on any character evidence he might seek to introduce. In the circumstances, it might have been advisable for counsel to seek an advance ruling on whether any of the matters raised in the statements of A, B, C or D could be used to impugn available character evidence.[30] The failure to seek an advance ruling was not, however, the subject of any criticism in this Court.
13. Generally speaking, a person in the applicant's position is bound by the forensic decisions of counsel utilised on his or her behalf.[31] Where counsel at trial has made what appears to be a rational forensic decision on behalf of his or her client, it is difficult - although not impossible - for an appellate court to conclude that 'as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice'.[32] Thus, in TKWJ, Gaudron J observed:[33]

The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question 'deprived the accused of a chance of acquittal that was fairly open'. The word 'fairly' should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.

One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis.

As already indicated, if there is a defect or irregularity in the trial, the fact that counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel's conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice.

Even though there is no defect or irregularity in a trial, a question may arise whether there was a miscarriage of justice. ...

1. Later, Gaudron J further observed:[34]

Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision. This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question. It should be added, moreover, that where the course in question is the failure to call evidence, an appellant will not establish a miscarriage of justice unless, as with fresh evidence, the evidence is such that 'when viewed in combination with the evidence given at trial . . . the jury would have been likely to entertain a reasonable doubt about the guilt of the accused'.

1. Recently, in Hajar,[35] this Court summarised the principles governing a case such as the present:[36]

The principles, relating to cases in which there has been a failure to adduce relevant evidence such as character evidence on behalf of an accused at trial, have been considered in a number of recent decisions, including the decisions of this Court in De Silva v The Queen,[37] Clay v The Queen,[38] Saw Wah v The Queen,[39] Bishop v The Queen,[40] Sharma v The Queen,[41] Knowles v The Queen,[42] and the decision of the High Court in TKWJ v The Queen.[43] Those principles are now well established, and may be summarised for the purposes of this case as follows:

(1) The ultimate question is whether the failure of defence counsel to adduce the good character evidence resulted in a substantial miscarriage of justice.[44]

(2) In determining that question, it is relevant (and indeed important) to ascertain whether the failure was the result of a decision at trial to obtain a forensic advantage by not adducing the evidence. Ordinarily, an accused will not be considered to have been deprived of a chance of acquittal that is fairly open, if the relevant failure is due to an informed and deliberate decision not to pursue a particular course at trial, in order to obtain a forensic advantage.[45]

(3) The question, whether the process failed due to the failure of counsel to call such evidence, is to be determined objectively, by considering whether the failure to call the evidence was capable of being explained on the basis that the course was taken to obtain a forensic advantage.[46]

(4) However, that rule does admit of exceptions. In particular, in an appropriate case, an explanation, given by counsel as to the course followed, might assist in determining the objective inquiry as to whether the course taken at trial was capable of a rational explanation.[47]

(5) The question, whether defence counsel's failure to lead good character evidence on behalf of the accused resulted in a substantial miscarriage of justice, is determined by asking whether there is a significant possibility that the failure affected the outcome of the trial.[48] Put differently, the question is whether the failure to call the evidence deprived the accused of a chance of an acquittal that was fairly open.[49]

1. When pressed by the Court to identify with precision the evidence of good character 'in a particular respect' that was available to trial counsel - trial counsel had sworn that he 'was aware that there were potential witnesses prepared to give evidence of the [applicant's] reputation and their experience of him as a coach' - the applicant's counsel provided copies of statements of three witnesses which were contained in the depositions (and which thus must have been available to trial counsel). Among other things, those statements addressed the appropriateness of a coach massaging a student. Counsel for the applicant also referred to written character references tendered on the plea - although, it must be said, they bore dates after the date of conviction - and also to the evidence of character witnesses given on the plea. The thrust of the character references and evidence was that the applicant was regarded as having been an extremely hardworking, thoughtful and professional coach; that he had mentored and supported those whom he had coached, particularly young people; and that he was generous with his time, equipment and commitment. He was described as having been a very positive influence on the young people in his care.
2. In considering whether in this case there has been a substantial miscarriage of justice, the affidavit sworn by trial counsel is, in our view, something of a distraction. Indeed, in deciding this ground we are prepared to assume that the kind of evidence described above was known to trial counsel to be available and was capable of being called at trial. One of the essential questions that this Court must answer, however, is whether - viewed objectively - the failure to call the putative evidence was capable of being explained on the basis that the course taken was to obtain a forensic advantage.
3. Viewed objectively, it takes little imagination to identify sound (if not compelling) reasons why counsel might not have called the kind of character evidence which it is now said he should have. Such witnesses could have been - and, very likely, would have been - confronted in cross-examination with the applicant's admittedly inappropriate internet conversations with the complainant, and with the inappropriateness of an adult male coach massaging a young female with her underwear pulled down. In the hands of a skilled prosecutor, such matters might have been strong - if not devastating - fodder for cross-examination. Thus, putting to one side trial counsel's affidavit, in this case the failure to call evidence of good character in a particular respect - viewed purely objectively - presents to one experienced in criminal trial advocacy as a rational forensic strategy.
4. Moreover, despite the failure to call positive evidence of good character, the jury would have understood from the informant's evidence that the applicant had no prior history of sexual misconduct. Furthermore, as we have mentioned, the applicant was the beneficiary of a conventional direction on good character. Thus the jury would have understood that the applicant's good character bore both on the probability of his commission of a crime and on the credibility of his denials of wrongdoing. In these circumstances it is impossible to conclude that there has been a substantial miscarriage of justice.

85 We make one final observation. Whist it might be acknowledged that in exceptional cases, counsel's explanation for the course followed in a particular case might inform the answer to the objective enquiry whether the impugned decision was capable of rational explanation,[50] this was not such a case. Ready and rational explanations for the conduct of counsel present themselves without any need to have recourse to counsel's affidavit.

1. In light of the foregoing, the application for leave to appeal against conviction must be refused.

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

[3] Crimes Act 1958, s 45(1).

[4] Crimes Act 1958, s 48(1).

[5] Crimes Act 1958, s 49(1).

[6] Names and details have been altered to prevent identification of the victim.

[8] Jury Directions Act 2013, s 15. See Xypolitos v The Queen [2014] VSCA 339.

[9] Lord Buddha Pty Ltd (in liq) v Harpur [2013] VSCA 101; (2013) 41 VR 159, 204 [204] ('Lord Buddha').

[10] Chong v CC Containers Pty Ltd [2015] VSCA 137, [201].

[11] R v Morrow [2009] VSCA 291; (2009) 26 VR 526, 539-40 [49].

[12] [1983] 1 NSWLR 1.

[15] R v Thompson [2008] VSCA 144; (2008) 21 VR 135.

[16] Ibid 158 [115]-[116] (footnote omitted).

[17] R v Manunta [1989] SASC 1628; (1989) 54 SASR 17, 18.

[18] West v Mead [2003] NSWSC 161.

[19] R v Morrow [2009] VSCA 291; (2009) 26 VR 526; R v Foley [2000] 1 Qd R 290; R v Coswello [2009] VSCA 300; KC v R [2011] VSCA 82; (2011) 32 VR 61; R v MG [2006] VSCA 264; (2006) 175 A Crim R 342; Browne v Dunn (1893) 6 R 67; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 [14].

[20] [2008] VSCA 244; (2008) 21 VR 478 ('Rees').

[21] Curwen v Vanbreck Pty Ltd [2009] VSCA 284; (2009) 26 VR 335, 349 [26], citing Rees, 488 [21].

[22] Bishop v The Queen [2013] VSCA 273; (2013) 39 VR 642; See Wah v The Queen [2014] VSCA 7; (2014) 239 A Crim R 41, 52 [57]-[62] (Weinberg JA).

[23] R v Zurita [2002] NSWCCA 22, [14]-[15] ('Zurita').

[24] Ibid [14]-[15] (Howie J, Hodgson JA and Levine J agreeing). See also Bishop v The Queen [2013] VSCA 273; (2013) 39 VR 642, 645 [8] (Redlich JA), 651 [38] (Priest JA); See Wah v The Queen [2014] VSCA 7; (2014) 239 A Crim R 41, 52 [62] (Weinberg JA).

[26] See Knowles (a pseudonym) v The Queen [2015] VSCA 141, [144]−[146] (Ashley, Redlich and Priest JJA) ('Knowles').

[27] The balance of the affidavit, paragraphs 5 and 6, went to matters relevant only to the first ground of appeal.

[28] See Evidence Act 2008, s 77, s 78 and s 79(1).

[29] See Evidence Act 2008, s 97(1) and s 101(2).

[30] See TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, 136-8 [38]-[43] (Gaudron J) ('TKWJ'); Zurita, [15] (Howie J, Hodgson JA and Levine J agreeing). Compare R v Vonarx [1999] 3 VR 618, 627 [35], 628-9 [44] (Winneke P, Callaway JA and Southwell AJA).

[31] TKWJ; Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 ('Nudd'); Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531. See also R v Arundell [1998] VSCA 102; [1999] 2 VR 228, 249-50 [53]-[55] (Callaway JA); R v Mateiasevici [1999] VSCA 120; [1999] 3 VR 185, 196 [37] (Chernov JA); MB v The Queen [2012] VSCA 248, [45] (Beach AJA, Maxwell P and Harper JA agreeing); Greensill v The Queen (2012) 37 VR 257, 271 [55] (Redlich, Osborn and Priest JJA).

[32] Criminal Procedure Act 2009, s 276(1)(b).

[33] TKWJ, 133 [26]-[29] (footnotes omitted).

[34] Ibid 135 [33] (footnotes omitted).

[35] Hajar v The Queen [2015] VSCA 233 (Maxwell P, Priest and Kaye JJA).

[37] [2013] VSCA 339; (2013) 236 A Crim R 214.

[38] [2014] VSCA 269; (2014) 43 VR 405.

[39] [2014] VSCA 7; (2014) 239 A Crim R 41.

[40] [2013] VSCA 273; (2013) 39 VR 642.

[41] [2011] VSCA 356.

[42] [2015] VSCA 141.

[43] [2002] HCA 46; (2002) 212 CLR 124.

[44] Criminal Procedure Act 2009 (Vic) s 276.

[45] [TKWJ], 133 [32] (Gaudron J, with whom Gummow J agreed).

[46] [TKWJ], 131 [17] (Gleeson CJ), [33] (Gaudron J), [107] (Hayne J); [Nudd], 165 [9]; [Knowles], [131].

[48] [TKWJ], 150 [89] (McHugh J).

[49] Sharma v The Queen [2011] VSCA 356, [51]; De Silva v The Queen [2013] VSCA 339; (2013) 236 A Crim R 214 [22]; [TKWJ], 132 [26] (Gaudron J).

[50] Knowles, [143]. See also Alkhair v R [2016] NSWCCA 4, [31].