RJ v R

Criminal Appeal Rules LEGISLATION CITED: Criminal Procedure Act 1986 Evidence Act 1995 Evidence Amendment Act 2007

Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 Pease v R [2009] NSWCCA 136 R v Brooks (1998) 44 NSWLR 121 R v Fitzsimmons (NSWCCA, 15 June 1998, unreported) R v JTB [2003] NSWCCA 295 CASES CITED : R v RAG [2006] NSWCCA 343 R v Trimboli (1979) 1 A Crim R 73 R v Wedd [2000] WASCA 273 RA v R [2007] NSWCCA 251 Regina v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 Tripodina v R; Morabito v R (1988) 35 A Crim R 183

PARTIES: RJ (Appellant) Regina (Crown)

COUNSEL: G D Wendler (Appellant) P G Ingram (Crown)

SOLICITORS: Van Houten Law (Appellant) Solicitor for Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2009/7443

CAMPBELL JA LATHAM J PRICE J

15 NOVEMBER 2010 RJ v The Queen Judgment 1 CAMPBELL JA: The Appellant was convicted at a trial held in the District Court in August 2009 of four offences involving a sexual assault against a child. The one child was involved in all of the charges. That child was seven years of age at the time of the assaults. She was aged seven years and nine months when she was interviewed by police, and eight years eight months at the date of the trial. 2 The factual material called by the Crown consisted of unsworn evidence from the Complainant, evidence from both a cousin and an aunt of the Complainant about the Complainant telling them about the events in question soon afterwards, a DVD of a police interview conducted with a relative who was four years old at the time of the incidents in question, a statement from a DOCS caseworker, and evidence from a police officer who made some enquiries after complaint was made to the police. The only direct evidence concerning the events the subject of the charges came from the Complainant. 3 The Appellant gave evidence in which he denied the allegations of sexual misconduct. He gave evidence of his own good character, and called other witnesses to give evidence of his good character. There was evidence that the dates of purchase of some pyjamas, and some bunk beds that had featured in the account given by the Complainant occurred after the date the offences were alleged to have occurred.

Fundamental Defect Through manner of Receiving Unsworn Evidence? 4 The first ground of appeal contends that there has been a fundamental failure of procedure going to the root of the trial and a consequent miscarriage of justice in that the trial judge, his Honour Acting Judge Boulton, permitted the Complainant to give unsworn evidence without first going through the procedures laid down by the Evidence Act 1995 for the unsworn evidence of a witness to be put before the court.

The Procedure Through Which the Complainant Gave Unsworn Evidence 5 At the commencement of the trial the jury was empanelled, pleas were taken, the judge made introductory remarks to the jury, and both Crown and defence made their opening submissions. The jury then retired. The following discussion then ensued: "HIS HONOUR: Before I rise, are [there] questions concerning the age of the child and whether or not she will give her evidence sworn or unsworn. CROWN PROSECUTOR: Your Honour s.12 of the Evidence Act , and if your Honour hasn't got the source here I can pass mine up for your Honour's assistance, this effectively presumes confidence [sic competence] of all people. From my discussions with [the Complainant] and from viewing her interview with the police it seems to me there's no basis for the s 12 presumption to be displaced. But s 13 provides some avenues for your Honour if that is an issue, and given her age it may well be an issue. So your Honour might wish to make some enquiry of her in terms of some questions as to her understanding of her obligation to be truthful in the court. HIS HONOUR: Yes, well I note that you've had discussions with her and on the basis of those discussions I take it that she appears to be a reasonable intelligent little girl. CROWN PROSECUTOR: Yes she does your Honour, she seems to me to be quite bright and quite responsive to questions that she's asked. In the interview itself with the police there is a period when the police question her about her understanding of truth and lies and she gives appropriate responses to those questions. So it would seem, just to me, and this obviously is not in any way binding on your Honour or Mr Torpey that she does seem to be quite competent, to me, that your Honour may simply wish to ask her a few questions when she comes into the witness box via the closed circuit television room. HIS HONOUR: Yes."

Mr Torpey was counsel for the Accused. 6 The prosecutor then handed the judge a copy of a service containing the Evidence Act, and informed the judge of the Complainant's present age, and her age at the time of her recorded police interview. The court then took a short adjournment. 7 Immediately after the court resumed, and before the jury returned, the transcript shows the following: "HIS HONOUR: If we can bring the little girl up on the screen-- CROWN PROSECUTOR: Yes-- HIS HONOUR: --I might tell her those few things that are mentioned there in s 13. CROWN PROSECUTOR: Thank your Honour. And your Honour just as your Honour's court officer's going out can I prevail upon him to take a plan that will be shown to the witness during the course of her evidence, just to save the running back and forth between the room[s]. TORPEY: Your Honour there was an issue that I wished to ventilate just before -- HIS HONOUR: Yes of course, yes. TORPEY: --before the young person gives, the child does gives evidence. I don't know whether it's more convenient to do it now before she's brought up on the screen or wait till after your Honour's conducted the enquiry. HIS HONOUR: I'm only going to just-- TORPEY: Okay. HIS HONOUR: I take the view that because of her age, it's not appropriate for her to give sworn evidence but subject to the things that are in ss (5) that she would be competent to give unsworn evidence if I informed her of those-- TORPEY: So your Honour proposes to ask questions in accordance with that subsection. HIS HONOUR: Well I've got to tell her that it's important to tell the truth. TORPEY: Yes. HIS HONOUR: And so on." 8 The prosecutor mentioned to the judge the statutory requirement under section 291 Criminal Procedure Act 1986 for the Complainant's evidence to be taken in camera, and continued: "Now I know your Honour's not specifically taking evidence from her at the moment, that's s 291 ss(1) of the Criminal Procedure Act , I know your Honour's not technically taking evidence but the court will need to be closed, I don't know if your Honour would be minded to do it now before she comes up." 9 The judge then closed the court to members of the public, and the closed circuit television link between the courtroom and the room where the Complainant was located was activated. There was then a discussion between the judge and the Complainant. The judge referred to the Complainant by her first name, but in the transcript reproduced I shall replace that name by "LMN": "Q. [LMN] can you see me now? A. Yes. Q. That's good. [LMN], you're going to be asked a number of questions. You realise that? A. Yes. Q. Now [LMN], do you understand that it's important when you're asked these questions that you tell the truth? A. Yes. Q. Yes good. Now [LMN] if you're asked a question and you don't know the answer to the question or if you can't remember the answer, don't be afraid to say that you don't know or that you can't remember. Do you understand that? A. Yes. Q. Yes so if you don't know the answer to a question simply say "I don't know." Or if you can't remember simply say "I can't remember." Don't then try to say something if you really don't know or don't remember. Now the other thing is [LMN], you may have things suggested to you that you agree with. And if you do agree with them you should say "Yes I agree." You understand? A. Yes. Q. But if you don't agree with them feel free to say "No I don't agree with that." you understand? A. Yes. Q. [LMN], we'll be back to you in a few minutes time when the prosecutor will begin to ask you some questions." 10 After some inconsequential further remarks, the closed circuit television was deactivated and Mr Torpey raised with the judge an evidentiary matter that is not presently relevant. 11 After the jury returned, and the closed circuit television link to the Complainant was activated, the transcript records: CROWN PROSECUTOR: Does your Honour wish [LMN] to say in front of the jury that she will be telling the truth in these proceedings? HIS HONOUR: Yes all right. I am prepared to do that. Q. [LMN], can you see me? A. Yes. Q. Do you recall that only just a few minutes ago I told you that it's very important that you tell the truth when asked questions here? A. Yes. Q. You will tell the truth will you? A. Yes. 12 The prosecutor then began asking the Complainant questions, in examination in chief.

The Present Legislative Provisions 13 The Evidence Act 1995 contains the following provisions: "12 Except as otherwise provided by this Act: (a) every person is competent to give evidence, and (b) a person who is competent to give evidence about a fact is compellable to give that evidence. 13(1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability): (a) the person does not have the capacity to understand a question about the fact, or (b) the person does not have the capacity to give an answer that can be understood to a question about the fact, and that incapacity cannot be overcome. Note. See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities. (2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts. (3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence. (4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact. (5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person: (a) that it is important to tell the truth, and (b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and (c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue. (6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section. (7) … (8) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person's training, study or experience. … 21(1) A witness in a proceeding must either take an oath, or make an affirmation, before giving evidence. (2) Subsection (1) does not apply to a person who gives unsworn evidence under section 13. … (4) The witness is to take the oath, or make the affirmation, in accordance with the appropriate form in Schedule 1 or in a similar form. (5) Such an affirmation has the same effect for all purposes as an oath." 14 The form of section 13 just quoted was introduced by the Evidence Amendment Act 2007. That Act commenced on 1 January 2009. Thus it was section 13 as just quoted that applied to taking evidence at the Appellant's trial. 15 When section 12 says "except as otherwise provided by this Act … every person is competent to give evidence", "every person", includes a child, of whatever age. 16 Section 13 provides an exception to that general condition of competency to give evidence. Its logical starting point is the presumption, established by section 13(6) that a person is "not incompetent because of this section" unless the contrary is proved. Section 13 deals with two different types of incompetence - not being competent to give evidence about a fact (at all), and not being competent to give sworn evidence about the fact. The presumption established by section 13(6) applies to both of the ways in which a person might be "incompetent because of this section". 17 Section 13(1) enables lack of competency to give evidence about a fact to be established in two alternative ways. One is if the person does not have the capacity to understand a question about the fact, and that incapacity cannot be overcome. The other is if the person does not have the capacity to give an answer that can be understood to a question about the fact, and that incapacity cannot be overcome. 18 Section 13(1) and (2) recognise that some people might be competent to give evidence about one fact, but not competent to give evidence about another fact. The question about whether a person is not competent to give evidence thus needs to be decided on a fact-by-fact basis, or possibly by reference to classes of facts, unless there is reason to believe that, concerning any fact at all concerning which that person might be called on to give evidence, the tests laid down in section 13(1)(a) or (b) are satisfied, and the incapacity cannot be overcome. 19 If a person is competent to give evidence about a fact (because the presumption of competency to give evidence about that fact is not displaced), a question may then arise about whether that person is not competent to give sworn evidence about the fact. Section 13(3) has the effect that a lack of competency to give sworn evidence about the fact will arise "if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence." 20 It is to be noted that this test is that the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence. Many a lying witness, and many an unreliable witness, has the capacity to understand that he or she is under that sort of an obligation (and thus is competent to give sworn evidence), even though he or she in fact does not give truthful evidence. 21 Section 13(3) is a provision that establishes that a person is not competent to give sworn evidence about a fact. If the test in section 13(3) is met, a further step must be taken before that person is competent to give unsworn evidence about that fact. The further step is that the person is told the things listed in paras (a), (b) and (c) of section 13(5). 22 A feature of the way section 13 operates, which is important for the present case, is that the occasion for telling a potential witness the things listed in paras (a) (b) and (c) of section 13(5) only arises if the judge has first decided that the person is not competent to give sworn evidence. 23 An effect of section 13(7) is that (as happened in Pease v R [2009] NSWCCA 136) a judge might be able to satisfy himself or herself of the matters necessary to decide whether a presumption of competency under section 13 has been displaced by listening to a recording of a police interview with the child. Even if an informal method of proof such as is permitted by section 13(7) were used, it would still be necessary for the judge to address the question posed by section 13(1) before finding that a person was not competent to give evidence about a particular fact, and to address the test posed by section 13(3) before finding that a person who is competent to give evidence about a fact is not competent to give sworn evidence about that fact. 24 Concerning the previous version of section 13, this Court decided in RA v R [2007] NSWCCA 251 at [11]: "Neither the defence nor the prosecution carries an onus. It is for the court to determine whether it is satisfied that there is proof that a person is incompetent. That question must be determined on the balance of probabilities s 142(1)." 25 If a question arises about whether the presumption of competency of a witness to give evidence, or competency to give sworn evidence, has been displaced, the procedural framework for deciding that question is dictated by section 189(1) Evidence Act. It provides, so far as relevant: "If the determination of a question whether: … (c) a witness is competent or compellable, depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question." 26 Section 189(4) requires decision of such a preliminary question to be decided in the absence of the jury, unless the court orders that the jury should be present. 27 Section 190 Evidence Act permits the court by order to dispense with the application of certain of the provisions of the Evidence Act, if the parties consent. However, sections 13 and 21 are not amongst the sections that can be dispensed with in that fashion.

The Previous Legislation 28 Before the new version of section 13 commenced, the text of section 13 was: "13(1) A person who is incapable of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence is not competent to give sworn evidence. (2) A person who because of subsection (1) is not competent to give sworn evidence is competent to give unsworn evidence if: (a) the court is satisfied that the person understands the difference between the truth and a lie, and (b) the court tells the person that it is important to tell the truth, and (c) the person indicates, by responding appropriately when asked, that he or she will not tell lies in the proceeding. (3) A person who is incapable of giving a rational reply to a question about a fact is not competent to give evidence about the fact, but may be competent to give evidence about other facts. (4) A person is not competent to give evidence about a fact if: (a) the person is incapable of hearing or understanding, or of communicating a reply to, a question about the fact, and (b) that incapacity cannot be overcome. (5) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section. (6) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence. (7) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit." 29 Sections 12 and 21 have had no substantive changes since the Evidence Act was enacted. (Section 21 has had a minor change in consequence of the alteration of another section.) 30 In R v Brooks (1998) 44 NSWLR 121 a complainant in a child sexual assault case, C, had been permitted to give unsworn evidence, when the presumption of competency arising from section 13(5) in its then form had not been displaced. This Court held that there had thereby been a fundamental miscarriage in the trial, such that the conviction could not stand. 31 Grove J, at 124 said: "It is fundamental to our system of trial that a person may not be convicted other than upon sworn evidence and, unless the material emanating from C was available to be deliberated upon by the jury pursuant to some express statutory warrant, there was an absence of evidence upon which conviction of the appellant could be sustained." 32 Grove J continued, at 125: "Although it is obvious that the jury was convinced of the truth of what C had to say and the reasons for upholding the appeal may be regarded as highly technical, the consequence that the trial was not held according to law must result in the convictions being set aside." 33 Grove J also said, at 126: "It is apparent that neither counsel appearing at trial drew his Honour's attention to the situation as it has now been identified. The consequence of the erroneous procedure was to render the articulations of C before the jury unavailable as an evidential resource and leave to argue the ground pursuant to r 4 of the Criminal Appeal Rules 1986 could not appropriately be refused. In the same vein, the proviso to s 6 of the Criminal Appeal Act 1912 could not be applied as a conviction based upon an absence of evidence could not be categorised as involving no substantial miscarriage of justice." 34 Priestley JA agreed with Grove J. Priestley JA, at 122, explained why the taking of the evidence unsworn was a fundamental defect: "In the High Court, in Bulejcik v The Queen (1996) 185 CLR 375, McHugh J and Gummow J observed (at 408) that: 'It is fundamental to the common law system of criminal justice that a person can only be convicted on admissible evidence given in open court.' Thus, it became basic to this appeal that this Court should decide whether what the complainant told the jury was admissible evidence. That it was not is shown by cases extending over a very long period, until today, despite some questioning of the position in the Eleventh Report of the Criminal Law Revision Committee in England, on Evidence (1972) at 163 and following. Cases in which the position is either stated or clearly taken as correct are: Lord Shaftsbury v Lord Digby (1676) Freeman 422; 89 ER 314; R v Marsham; Ex parte Pethick Lawrence [1912] 2 KB 362; R v Brown [1977] Qd R 220; R v Sossi [1986] WAR 163 at 167; Attorney General's Reference (No 2 of 1987) (1987) 46 SASR 275. It is thus well-established that 'evidence' not given under oath or under some lawful alternative sanction is not admissible evidence, and it follows that the trial in the present case in which non evidence of that kind played a material part was not a trial according to law." 35 R v Brooks was decided on 14 July 1998. A month earlier, a differently constituted Court of Criminal Appeal had decided R v Fitzsimmons (NSWCCA, 15 June 1998, unreported). In it, the complainant in a charge of sexual assault against a child had given evidence unsworn, without the procedures of the then section 13 being gone through before the complainant was permitted to do so. Newman J, with whom Studdert J agreed, said, at 8: "In the instant case the appellant actually had the benefit of reference being made to the fact that K's evidence was unsworn. I am of the view that the procedure adopted was in fact defective and that an error occurred. However, if this were the only matter of error in the case I would be of the view that the proviso to s 6 of the Criminal Appeal Act should be applied." 36 As it happened, the court found other deficiencies in the trial that resulted in the conviction being quashed. While Simpson J agreed with that order, her Honour said, at 11: "I agree that the procedure adopted in relation to the taking of evidence of the complainant was defective, and constituted error of law. I am not persuaded that, were there no other successful ground of appeal, that the defect was such as could be overcome by the application of the proviso of s 6 of the Criminal Appeal Act 1912 but, in the light of the proposed result in relation to the third ground of appeal, it is unnecessary further to consider this question." 37 The decision in R v Brooks being the later decision, and being one in which the effect of failure to comply with the requirements of section 13 before receiving unsworn evidence was the reason why the conviction was set aside, this Court should now follow R v Brooks unless persuaded it was wrong. Not only am I not persuaded it is wrong, in my view it was correctly decided. 38 Further, R v Brooks has since been applied in R v JTB [2003] NSWCCA 295, in which a conviction based on the unsworn statements in court of an eight year old was set aside, when no attempt had been made to decide whether the presumption of competence to give evidence had been displaced, or whether the presumption of competence to give sworn evidence had been displaced. Grove J, at [12]-[15] said that there was no lawful sanction permitting her to give evidence in the way she did, in consequence of which the trial was not held according to law, and thus the conviction had to be set aside. Hulme J said, at [20]-[23]: "The jury clearly believed what the complainant, though not sworn or having made an affirmation, said. It is inconceivable that the taking of an oath or the making of an affirmation would have made the slightest difference to what she said. Certainly there is nothing to suggest it would have, and there is no conceivable ground for thinking that had she made an oath or taken an affirmation or had the steps envisaged by s13 been taken, the jury's verdict would have been any different. There is, thus, much in favour of the view that no substantial miscarriage of justice has occurred and the Court should apply the proviso to s6 of the Criminal Appeal Act . However, this Court in R v Brooks (1998) 44 NSWLR 121 has made it clear that the deficiency or defects which occurred in this case are of a nature so fundamental that the proviso should not be applied. Though I am not sure I would have reached the same conclusion had I approached the matter de novo, I do not feel sufficiently confident of the view that what was said in Brooks is wrong to depart from it and, accordingly, I agree with the orders proposed."

Greg James J agreed with Grove J. 39 In R v RAG [2006] NSWCCA 343 at [25] Latham J (with whom McClellan CJ at CL and Johnson J agreed) referred with evident approval to R v Brooks. R v Brooks was likewise referred to with approval in Pease v R [2009] NSWCCA 136 at [7]. 40 While the present version of section 13 differs in some respects from the version that was being considered in R v Brooks, it remains the case that section 21 permits only one exception to the requirement that a witness in a proceeding must either take an oath or make an affirmation before giving evidence. That exception is if the person "gives unsworn evidence under section 13". It is possible to give unsworn evidence "under section 13" only if two separate conditions are satisfied. The first is that the presumption of competency to give sworn evidence that arises from section 13(6) has been displaced, through a decision being made that the test for being not competent to give sworn evidence, set out in section 13(3) has been met. In other words, it is possible to give unsworn evidence "under section 13" only if there is material that the judge has considered, on the basis of which the judge has decided that the witness does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence. The second condition for giving unsworn evidence "under section 13" is that the judge has informed the witness of the matters in paras (a) (b) and (c) of section 13(5). 41 In the present case, the judge did not address the first of these conditions at all. Even if the judge accepted implicitly the statement of the prosecutor that "given her age it may well be an issue", that does not go beyond recognising that there might be a question that needed to be decided about competence. The judge did not take up the prosecutor's suggestion of asking the questions that are relevant to section 13(3), "as to her understanding of her obligation to be truthful in the court". The judge was informed of the opinion of both the prosecutor and counsel for the defence that she seemed competent, and was informed that in the police interview she had demonstrated an "understanding of truth and lies". There was no material before the judge to suggest that she did not have the capacity to understand that in giving evidence she was under an obligation to give truthful evidence. 42 In these circumstances, the unsworn evidence contravened section 21 Evidence Act, and was not legitimately before the jury.

Rule 4 Leave Needed? 43 Rule 4 Criminal Appeal Rules provides: "No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission or decision by the party appealing or applying for leave to appeal." 44 No objection was taken at the trial to the evidence being received unsworn. If the decision of the judge to receive the evidence of the Complainant unsworn is a "decision as to the admission or rejection of evidence", the present point could be taken only if leave is granted under rule 4. 45 R v Brooks assumed, at 126, that it was possible to appeal against a decision that the child should give unsworn evidence only if leave under Rule 4 was granted. However, R v RAG [2006] NSWCCA 343 at [8]-[16], esp at [11], has since held that a decision that a particular witness was not competent to give evidence in criminal trial was not a "ruling on the admissibility of evidence" within the meaning of section 5F(3A) Criminal Appeal Act (though it was an "interlocutory judgment or order" within the meaning of section 5F(2) of that Act). 46 The question of whether leave under Rule 4 was needed for the present appeal was not the subject of argument. The Crown accepted that if leave were needed, it would be appropriate to grant it if the court were of the view that the judge had been mistaken in permitting the evidence of the Complainant to be given unsworn. While I incline to the view that the reasoning in RAG probably leads to a conclusion that leave under Rule 4 is not necessary for the present appeal, I think it preferable not to make a final decision about the matter, and to proceed on the basis of the Crown's concession. 47 In my view, even if leave were needed under Rule 4, that concession was appropriately made. 48 One of the circumstances in which leave is granted is if there is an irregularity "which is such a departure from the essential requirements of the law that it goes to the root of the proceedings": Tripodina v R; Morabito v R (1988) 35 A Crim R 183 at 195. The error of receiving the Complainants' evidence unsworn in circumstances that did not fall within section 13 is an irregularity of that type. 49 Setting aside the conviction brings about a situation to which the remarks in the first paragraph I have quoted at [38] above from the judgment of Hulme J in JTB are applicable. However, section 21 Evidence Act is in adamantine terms. When it has not been complied with, the conviction cannot stand.

Grounds 2 and 3 - Crown Submission and Judge's Direction Concerning Character 50 It is convenient to deal with these two grounds together. 51 After referring to the Complainant's evidence that the offences had occurred, and the Appellant's evidence that they had not, the prosecutor said: "You'll need, obviously, to consider all of the evidence that you've heard in these proceedings. Part of that evidence was called by the accused and it was evidence to establish that the accused is what lawyers usually call "a person of good character" . What that means to most lawyers is that he doesn't have any criminal record, he hasn't been in trouble with the police, he hasn't been before the courts and he hasn't been convicted of some crime and, of course, you've also heard some evidence that in addition to not having been in trouble with the police the accused has a grown up daughter who thinks well of him, who had a happy childhood she told you, thinks her father is a good man. You heard from the accused that he always tried to live a good life and you heard just a moment ago from Mrs [name] that she has been the accused's neighbour for some thirty odd years and also found him to be a person without blemish to his character. Now, his Honour will give you some directions about how you can regard and use evidence of good character but broadly speaking you might think about it in a couple of ways. It's generally felt to be more likely that a person of good character wouldn't commit criminal offences and so you might think, "Well, He's a good bloke whose neighbour and daughter are fond of him, therefore he wouldn't commit offences like these." You could also think, "Well, this man is a good man who hasn't been before the courts" and so therefore it's less likely that he would get up there in the witness box and lie to you on his oath. They're a couple of the ways in which you can regard the good character that you have heard some evidence of. Now, it may be that you might think that a postman or retired postman of some thirty-six years, whose daughter had a happy childhood, who's never been in trouble with the police, wouldn't do things such as [LMN] alleges, wouldn't do things like that to a little child. He's a good man, he wouldn't do it. Well, we'd all like to think I expect, members of the jury, that firstly no one would do such things to children, whether good people with no criminal records or bad people with criminal records. It would be very nice to think that nobody would do such things. But sadly, you would all know from your ordinary experience of life that people do commit sexual offences against children and that people who are regarded by others as good people commit sexual offences against children. We know that people who have worked all their lives, paid their taxes, raised their families, stayed out of trouble, we know that people such as that, unfortunately, do commit these sorts of crimes. It isn't just people that we would all regard as evil or depraved, who've been back and forwards before the courts, who've done all sorts of crime in their lives, it's not just people like that that sexually assault people. It's people sometimes of the very highest standing in our community. You would know just from following the press events, reportings of things, that happen in our world, that people who were formerly regarded of the very highest standard in our community have been found to be people who have a sexual interest in children and who have sexually exploited children. Priests, doctors, lawyers, teachers, political leaders; they're all people that we know have, sadly, committed these sorts of offences. People of good character, people who are believed to be of good character, can still be leading secret, dark lives where they exploit children. So, whilst you would certainly have regard to the evidence of the accused's good character, that's not, I'd suggest to you, where things end because very sadly people that we can all have a high opinion of, that we might think are the best people in our community, community leaders, commit crimes like these. It's just that no one knew about it because these things are secret. People don't assault children in front of witnesses, generally. A bank robber might be free to hold up a bank in front of a crowd of people doing their lunchtime banking but a man who sexually assaults a child doesn't do that. These are generally hidden, secret things. They happen often behind closed doors, often in family homes, in family situations, where other people don't look in. They happen often at night and almost always, you might think, they happen where there is no witness who is capable of seeing what happened, raising the alarm and taking some steps to protect the child involved. So, these are secret things, crimes that can be committed by a good person and, of course, a good person who is accused of such a crime, you might expect, would deny it. So, there is all of that evidence you can consider but you might think about it in that light, that sadly good people also prey on children for sexual purposes."

I have italicised those parts of the Crown's closing address that, Mr Wendler, counsel for the Appellant, relies on. 52 Mr Wendler submits that character evidence was of particular importance in a case such as the present, which was "essentially an oath against oath case". He submits: "The appellant was entitled to have the jury consider his prior long good character uninfluenced by sensationalist allusions to unidentified press reports concerning unnamed persons of high repute alleged to have been convicted of crimes against children. The prosecutor was effectively inviting the jury to ignore the appellant's evidence of good character because past experience suggested high profile persons with previous good character had been convicted of crimes against children. In a sense, the prosecutor was also inviting the jury to a subtle form of propensity reasoning namely; that since persons of high repute and previous good character have in the past been convicted of crimes against children therefore it was conceivable the appellant, demonstrating the same antecedents, was likely to have committed similar crimes. The prosecutor's unhelpful and profoundly prejudicial remarks to the jury concerning how they should handle the appellant's evidence of good character had the impact of so distracting and undermining this evidence that it was rendered of titular value." 53 The judge's remarks to the jury concerning character were: "He has not had apparently, he told the court, any criminal charges levelled against him during his lifetime and a couple of people came along, one his daughter, another one a next door neighbour to speak of him as being of good character. Now it is quite open in a case of this kind to have such evidence put before the jury. As the prosecutor correctly explained to you, the jury can use it in a possible two ways. One is that persons of good character are not generally likely to commit serious criminal offences, that is a generalisation that is no doubt true. There is a further aspect of the matter, and it is this, that when a person of good character gives an account in front of the jury, as indeed occurred in this case, that a person of good character might be more readily believed as a result of such character. So you are entitled to look at those aspects of the matter when you come to evaluate the accused's evidence that he gave in these proceedings, and also, the likelihood that he would commit such offences as are charged against him here. Fairly obviously, good character is not determinative of the issue that is before you. Even if some or all of us were real villains or criminals, there would have been a time, it might have been in our very early lives, that we were persons of good character before we got on to the wrong side of the law. There is always a first time when people offend against the law, that time when they cease being of good character and become people of questionable or of bad character. So the fact that a person might put evidence before the court of good character is something that you can take into account by all means, but it does no resolve the ultimate issue for you to determine, namely whether or not he is guilty of the charges that he faces here. (emphasis added)

It is the portions italicised that Mr Wendler relies on. 54 When one bears in mind the type of evidence called by the Crown ([2] above) there is a measure of overstatement in Mr Wendler's submission that this was "essentially an oath against oath case". However I do not doubt that the character evidence was important. 55 It is uncontroversial that it is open to a judge to direct a jury that the fact that an accused is of good character entitles the jury to take that good character into account in considering whether it is satisfied that the accused has committed the conduct alleged, and also to take it into account in deciding whether the jury believes any account that the accused has given, either in evidence or in statements out of court, of the circumstances relevant to the charges. A judge is free to remind the jury that people commit crimes for the first time, and that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing, notwithstanding the accused's previous character: R v Trimboli (1979) 1 A Crim R 73 at 74. 56 Mr Wendler relied on the decision of the Court of Criminal Appeal of Western Australia in R v Wedd [2000] WASCA 273. In Wedd the judge had said to the jury: "In considering this sort of evidence of good character you of course realise that persons of otherwise good character do, from time to time, commit offences, so that you may find that evidence of good character may be of limited assistance to you in your deliberations, but it is something you should take into account." 57 The Western Australian Court of Criminal Appeal took the view that the remark "that evidence of good character may be of limited assistance to you in your deliberations" "…seriously disturbed the balance of the direction. It was a remark which tended to denigrate the significance of the evidence of good character which, it is clear, was a central plank in the presentation of the defence case." [at [24]]

I do not find Wedd of assistance, as it is a decision about the adequacy of a particular direction of the judge, in different terms to the direction of the judge in the present case. 58 The significance of the remarks of the prosecutor in the present case concerning character needs to be judged in the overall context of the prosecutor's remarks concerning character. It also needs to be considered in light of the directions of the judge on the topic of character. The overall context of the prosecutor's speech had the effect of significantly qualifying what otherwise would have been the impact of the portions on which Mr Wendler relies. 59 The portions of the judge's direction to which Mr Wendler draws attention were not, in my view, ones that put to the jury in an unfair way the use that they could make of the character evidence. It was accurate to say that good character evidence was "not determinative of the issue" - ie, it did not of itself provide a defence. The thrust of the judge's remarks was that character evidence was something to be taken into account, along with the other evidence relating to guilt. That the judge's direction concerning character was unexceptional tends against a conclusion that the remarks of the prosecutor concerning character were such as to cause the trial to miscarry. 60 Counsel for the Appellant at the trial requested the judge to give directions concerning some aspects of the prosecutor's address, but the prosecutor's remarks concerning character was not one of those aspects. Counsel for the Appellant also requested the judge, at the conclusion of the summing up, to make certain supplementary directions, but no supplementary direction or correction was sought concerning the judge's direction on character evidence. 61 In accordance with Rule 4 Criminal Appeal Rules, set out at [43] above, leave is needed to raise the matters complained of in each of these grounds. No explanation has been put forward as to why those matters were not raised at trial. The reason why the matters were not raised at trial is an important matter for the Court to take into account in deciding whether to grant leave under Rule 4: Regina v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [93]-[98]; Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]. When no explanation is put forward of why the matters were not raised at the trial, and the prosecutor's and judge's remarks on character produced no miscarriage of justice, this is not a suitable case in which to grant leave concerning grounds 2 and 3. Thus the orders of the court arise from ground 1 alone.

(3) Remit the matter to the District Court for a new trial. 63 LATHAM J: I agree with Campbell JA. 64 PRICE J: I agree with Campbell JA

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