Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Masri v R [2020] NSWCCA 24 Hearing dates: 17 February 2020 Date of orders: 28 February 2020 Decision date: 28 February 2020 Before: Johnson J at [1] Price J at [2] Davies J at [3] Decision: Leave to appeal against conviction refused. Catchwords: CRIME - appeals - appeal against conviction – sexual offences – whether complainant consented – where trial judge did not give good character direction – where no direction sought – whether failure to seek direction was inadvertent or a tactical forensic decision – whether miscarriage of justice Legislation Cited: Crimes Act 1900 (NSW) ss 61I, 61L Criminal Appeal Rules r 4 Cases Cited: ARS v R [2011] NSWCCA 266 Brown v R [2019] NSWCCA 269 Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32 Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 R v Stalder [1981] 2 NSWLR 9 Simic v The Queen (1980) 144 CLR 319 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Texts Cited: Nil Category: Principal judgment Parties: Ahmed Masri (Appellant) Crown (Respondent) Representation: Counsel: P Lange (Appellant) D Patch (Respondent) Solicitors: M Chahine (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2017/310843 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: Nil Date of Decision: 12 – 28 February 2019 Before: North DCJ File Number(s): 2017/310843 Judgment 1. JOHNSON J: I agree with Davies J. 2. PRICE J: I agree with Davies J and the order that he proposes. 3. DAVIES J: The appellant was charged with four counts of indecent assault contrary to s 61L Crimes Act 1900 (NSW), seven counts of sexual intercourse without consent contrary to s 61I of the Crimes Act, and one count of attempted sexual intercourse without consent. The complainant in relation to all of the charges was a woman the appellant met through Facebook. All of the offences were said to have taken place on the same date within a timespan of approximately an hour. 4. The appellant was tried before Judge North and a jury. The jury returned verdicts of guilty in relation to two of the counts of sexual intercourse without consent and one count of indecent assault. The jury returned not guilty verdicts in relation to the other nine counts. The counts were charged in chronological order and the counts in respect of which the appellant was convicted were the last three counts charged. 5. On 29 March 2019 the appellant was sentenced to an aggregate sentence of four years imprisonment commencing 4 March 2019 and expiring 3 March 2023 with a non-parole period of two years and six months expiring 3 September 2021. 6. The appellant appeals against his conviction. Although the notice of appeal relied on two grounds, counsel for the appellant abandoned the second ground at the outset of the hearing of the appeal. Accordingly, the only ground of appeal relied upon was as follows: 1. A miscarriage of justice was occasioned by the absence of a direction in respect of the appellant's prior good character. There was no application for leave to appeal against the sentence. 1. Since the ground of appeal is confined, it is not necessary to set out in any detail the facts which gave rise to the charges. The following summary is sufficient for the purpose of understanding the appeal. 2. At about 3:15pm on 3 October 2017 the complainant was at home alone studying. At about that time she received a friend request on Facebook from the appellant. The complainant and the appellant exchanged a number of messages up to approximately 6:00pm, at which time the complainant provided the appellant with her address, he having indicated a desire to come over to meet her. 3. The appellant met her outside McDonalds at Bondi Beach. They subsequently entered the appellant's car where the appellant tried to kiss the complainant. It was alleged that the first of the indecent assaults took place at that time when the appellant pulled the complainant's t-shirt and bra down and put his mouth on her breast. 4. The appellant then drove to a residential street in Bondi Beach where the remainder of the offences charged took place. 5. The complainant gave evidence that she attempted to resist the appellant's advances. She also gave evidence that she asked him to stop on a number of occasions and pushed him away on a number of occasions. 6. At the conclusion of the events in the car the complainant said that she wanted to go home. The appellant drove her towards her address but at the ANZ Bank in Bondi Beach she asked him to stop the car where she alighted. 7. Later that evening, the complainant messaged a colleague from work and said she wanted to talk to her. They spoke briefly on the phone where the complainant told her that a boy tried to kiss her in his car, but she did not relate anything else that had happened. The complainant messaged a friend who lived in France and told her what had happened. The French friend said that she should go to the police. 8. The following morning the appellant sent the complainant a message to which the complainant replied saying that she did not want to talk to him. About three hours later she went to the police and reported the events to them. 9. Some eight days later the complainant rang the appellant. The telephone conversation was lawfully recorded by the police. The phone call was interrupted and there was a second phone call when the appellant rang the complainant back. 10. During the first phone call the following was said (inter alia), where V.1 is the appellant and V.2 is the complainant: V.2 No, but l'm not stressed because I told you, before, like when I saw you I told you I didn't want to do things with you, and then you, basically, didn't want to listen to me the whole time. V.1 I know but, you should have sorta like..... V.2 What's that? V.1 ..... to yourself as well like, you wanted it as well like, it just kinda happened, it was out of our control. But..... V.2 I don't feel like It was out of our control. V.1 Like when I did notice you were upset, I stopped. True? V.2 No. V.1 I stopped, I did I stopped a couple of times...... and then when you grabbed me again, I felt pretty ..... It took me, you know what I mean. V.2 No, but I feel like, I don't know what kind of girls you talk to, and stuff, like, if someone Is, like, telling you that you that they don't want to do something, like, you shouldn't. V.1 Yeah, but when you did say it but, when you did just say It, I did stop. But then I was hard..... like, you know it was cool. Whenever you wanted to stop, I stopped. V.2 No but, at the beginning, when I told you to stop, you stopped for, like, 5 minutes, and then you started driving. Again, I really didn't even know where you were driving to, because there were restaurants and stuff right where we were. V.2. I just, like, couldn't you feel me like, pushing you with my hands and stuff? V.1. Yeah, but it wasn't that much of a push, like it was like you wanted it but you didn't, you didn't want it sometimes, like, you know what I mean? But whenever you would push me away, like properly, I'd realise you were upset and I'd stop. But whenever you were, kinda in the mood, you know what I mean? … V.1 Well, a couple of times when we were having sex. V.2 What's that? V.1 When we were having sex there were, there were some times where you, you wanted it, and other times when you kept you know V.2 Why do you think I wanted it? V.1 What do you mean, like, but based on your action and how you felt. V.2 I was, literally, asking you to stop. V.1 Sometimes you were, sometimes you weren't. Sometimes you were OK. V-2 Are you serious? V.1 Yeah, Don't you remember? V.2 I remember very well, even like, at the end I, I told you I just wanted to walk home because I didn't even want to be there. V.1 Alright, when then, what do you want me to say? V.2 I don't know. You could say sorry. Like, don't you have, like, a mum or a sister. Like, think about it that way. Like, If, like, you don't, you don't do that and, Iike ..... V.1 Well, you don't meet up with a guy if you've got a boyfriend. V.2 Yeah, I know, but you told me we're going to meet as friends. V.1 Yeah, that was before all that but, we were talking sexual and stuff it was ah..... shit happens, you know. 1. In the second conversation the following was said, where V.1 is the complainant and V.2 is the appellant: V.2. Sad about what? V.1 Because, like, I don't think you understand, like I don't think you understand what it's like for a girl. Like, I didn't want to do that. Like, I know you said… V.2 Yeah, I know … V.1 Like, I know you said, like, oh, my mind was saying no, my body was saying, yes, whatever, but, like, like, I feel like the, in the girl, their mind, if the mind says no, its more no, like, it's no, V.2 Yeah, but, you got to see what lead (sic) to that. Every time I talk sexual and I said I'm goin' to come fuck the shit out of you, or whatever, you'd get happy and got excited and then, you told me pretty much to come over, and then like, ah ..... so, I don't know like at the back of my mind I was all thinking, you know, that it's goin' to go down. … V.2 I said I want to come… V.1 …didn't say that. When we were talking on the phone, I told you, like, I thought you were good looking, and stuff and that if you… V.2 What do you mean ..... the last thing we said on the phone before I started coming out, all right, is I want to come and fuck the shit out of you 'cause you were playing with yourself, remember, and I got so hot. V.1 No. I got turned on… V.2 And… V.1 … but I don't even remember… V.2 Yeah... V.1 …you saying that. V.2 Yeah. V.1 Because that's why… V.2 Because you were so turned on and you didn't say nothing. When you didn't say nothing I thought, that's the green light. … V.1. And, like, I don't know if you remember but even when we were In the car, like, at one time, when we were in the back, I told you, like, I don't want to do this, and you even said to me, like, Shut up. V.2 Yeah, cause I was probably turned on at the time..... you know, and when you. get turned on, you can't think straight. V.1 Mmm. V.2 Can you blame me baby, I was fuckin', staring at your body, I was, fuckin', freaking out. V.1 Well.. V.2 Everything that you is, is..... 'cause everything about you is perfect. I was in heaven as soon as I seen you. 1. Both parties appear to accept that the explanation for the different verdicts is that, at least in the last extract set out, and possibly earlier in the phone calls, the appellant's statements suggested that he was reckless as to whether the complainant was consenting to the events that took place in the back of the car. Those events pertain to Counts 10 to 12. 2. The issue at the trial concerned matters regarding consent by the complainant to the undisputed acts which occurred. Ground of appeal Ground 1: A miscarriage of justice was occasioned by the absence of a direction in respect of the appellant's prior good character 1. On the afternoon of Friday, 22 February 2019 the trial judge said to counsel: Now, have a think over the weekend, Mr Crown, Mr Brezniak, and let me know if you like what, if any, unusual other than the normal directions you want, and we'll see where we go with the elements document, and we'll see how we go on Monday with the timing of the trial. All right? 1. On the morning of Monday, 25 February, the solicitor advocate for the Crown mentioned that he had sent through a document in answer to his Honour's request. The following exchange then occurred: SOLICITOR ADVOCATE: There's one issue that my friend and I have discussed this morning which we just thought it may be beneficial to ventilate with your Honour first. It's a question about evidence concerning good character and whether it will be called. HIS HONOUR: Yes, I wondered, nobody had mentioned it yet. In my elements list I've got a little question mark next to that. SOLICITOR ADVOCATE: The Crown doesn't know what evidence would be called. The Crown has made the concession there's no prior criminal convictions, and that wasn't asked of the OIC, but the Crown would concede that the accused has never been convicted of an offence. HIS HONOUR: That's why I put the question mark, because I wondered why nothing was asked of the OIC. SOLICITOR ADVOCATE: There are no convictions. The issue is the other charges. It's the other charges, and Mr Brezniak made inquiries as to whether or not there would be other evidence, and the police have indicated that there have been other complaints that were not dealt with as criminal matters. The context of those was, following the current matter being charged, there was some publicity in the media about it with reference to a school that the accused was teaching at. That school conducted an internal investigation and there was some matters arising from that investigation of complaints from students about inappropriate conduct, some of which has similar elements, although not to the same extent obviously, as the current matter, and particularly the use of social media. So it would be, if good character was raised in general, there would be some concerns about evidence to rebut that and it would be - certainly the countervailing concern would be they would be highly prejudicial material. Once good character is raised, and it can be raised --- HIS HONOUR: It can be raised to a limited extent, or you can ask for the full character direction which is both limbs, isn't it? SOLICITOR ADVOCATE: Yes. HIS HONOUR: (1) is he the sort of person who would commit this crime, or crimes, and secondly it goes to his credibility. SOLICITOR ADVOCATE: Yes. If evidence was called and it was directed towards whether or not he was someone who would be likely to commit crimes of this nature, then--- HIS HONOUR: You'd seek to call some evidence. SOLICITOR ADVOCATE: Yes. HIS HONOUR: All right. Yes, Mr Brezniak. BREZNIAK: Your Honour, on that question, may I be quite clear. The first thing is that I start from the position of seeking a full character direction given the availability of evidence of good character which is available to my instructing solicitor and to I. The second is that for the prosecutor to wave around general threats is not sufficient or not the basis upon which to deter an accused in a criminal trial. It comes down, if I may, your Honour, to this, s 110 subs (2) and s 110 subs (3) refer to the non-applicability of the credibility rule and hearsay rule and so on. The question is, what does that mean, and I admit, your Honour, that over the weekend I did not look at the question, but I do know--- HIS HONOUR: Did you look at it, or didn't look at it? BREZNIAK: I did not look at it, and I would seek to look at it, I haven't looked at it, however, I can just raise this, my elementary understanding is that since R v Stalder, a judgment of a single judge of the New South Wales--- HIS HONOUR: How do you spell that? BREZNIAK: S-T-A-L-D-E-R. It's an early decision, I think 1989, a single judge of the Supreme Court. Since that case, which many defence lawyers might think was a decision wrongly decided, but it is the rule, then the fact is that a person does not need to be convicted of a criminal offence for that matter to be raised against him or her on the question of character. So it doesn't have to be a conviction. The question for me unanswered which I need to look at, is what view this Court would take of s 110(2), namely whether evidence of the character raised by the prosecutor is sufficient to open the gate against us, and if it is then Mr Haladi and I will make a decision on that basis accordingly. HIS HONOUR: I understand that, but putting aside what may or may not have happened at a school that he was teaching at, which seems that that would be sending the detective out running to try and rustle up some witnesses as to some internal investigation from which no charges have arisen, then you would be on pretty strong grounds, but I don't know and nor have I asked, nor have I been told, what happened to the other complainant in these matters, and they may fit, that she may fit, her allegations may fit within what you're talking about from this Supreme Court case. BREZNIAK: Whatever the position, it's well acknowledged practice that a ruling should be sought from the Court in advance of that issue. HIS HONOUR: That's what you're doing. BREZNIAK: That's what you're doing, and in order to get a ruling from the Court my friend has to show what evidence he has rather than just say, "Well, we've got something that may be here and we're looking for it." HIS HONOUR: That's what I'm saying. One is fairly off - I don't know what evidence, if any, could be gathered. I'm not going to delay the trial for it, for instance, in terms of what happened at school, but in terms of what happened to the other matter, whether it was no build [scil. no-billed], whether the complaint resiled from it, I don't know. BREZNIAK: No, we don't know either, I might indicate, your Honour. HIS HONOUR: What's 110(2) say? BREZNIAK: 110 is just the credibility rule, the hearsay rule, what are all the other rules in the Evidence Act don't apply. Mr Karpin reminded me of that provision this morning. The reason I mention it is that if the prosecutor tells us what evidence he would bring, then we may not need to trouble the Court at all. HIS HONOUR: I think he's got to do that. BREZNIAK: Yes. HIS HONOUR: Because I'm flying blind. BREZNIAK: That's right. We wouldn't trouble-- HIS HONOUR: Am I right, Mr Crown, all I know is that there were originally ther charges involving a second complaint that the Crown was originally going to proceed on -- SOLICITOR ADVOCATE: That's correct. HIS HONOUR: --as a joint trial. [The solicitor advocate then raised a number of difficulties concerning the adducing of the evidence. He then continued:] Inquiries have been made and having looked at some material this morning, I've given Mr Brezniak an indication of what that evidence entails. What I would say in terms of chasing evidence, it's a bit of a murky area of evidence law because none of those rules of evidence apply, it's strictly if evidence is going to be called from a witness who can talk about the accused's reputation in general, then evidence can be called from a police officer to counter that evidence with hearsay evidence. I would think it would be it's not the case where the Crown then has to run a mini trial by calling every other witness. It may be a preferable course but, as your Honour says, your Honour wouldn't delay the trial for a further investigation to go and be conducted in order to meet character evidence, but it would otherwise put the Crown in a very difficult position. If the accused is to call evidence to say that he is of good character, the Crown knowing that there was-- HIS HONOUR: So what do you say the solution is, then? BREZNIAK: For me to tell him. I'm happy to tell the prosecutor, with precision, the kind of evidence -- HIS HONOUR: All right, and then you both tell me whether or not that's going to lead to - and you can draft it if you like - what if any character direction I give the jury. Otherwise I'll have to make a decision. BREZNIAK: Yes. We can-- HIS HONOUR: If you can settle it - I'm not saying Mr Crown can settle it, but if he hears what you have to say, he may be able to. BREZNIAK: I'm happy to tell the Crown what that evidence is, and then I would expect the prosecutor to tell me, having heard that, what he would raise in reply, and if we can't solve it, then we seek a ruling, and then the question of whether a ruling is available or not can be dealt with. … SOLICITOR ADVOCATE: It's up to the Court at the end of the day, because it doesn't affect how my cross-examination would proceed, I would expect. But it may be that if we could take ten minutes, my friend and I could hopefully resolve something, anyhow. HIS HONOUR: It would be good if you could resolve it, because we've got a lot to do, and my normal associate is unable to be here today, so we'll see what happens. We'll adjourn for around ten minutes. SHORT ADJOURNMENT BREZNIAK: Stalder's case is reported in [1981] 2 NSWLR 9. For what it's worth, when the question of good character is relevant, it can only be done by the leave of the Court under s 112, I think. But in any event, I did have the chance to speak to Mr Masri, and there is another question, if I may ask him in chief, which I would like to clarify. HIS HONOUR: Yes. BREZNIAK: It's just a brief question. HIS HONOUR: Where do we stand with the character issue? BREZNIAK: The character issue is there has been the exchange of necessary information between the prosecutor and the defence, and I have asked the prosecutor to allow me for some time to consider the question, which I'm going to do between now and when it would be necessary to make a decision. It may not be necessary to trouble the Court. (emphasis added) 1. Counsel for the appellant then asked some further questions in chief of the appellant. Thereafter the following exchange occurred: Q. Lastly, instead of asking you, I might just ask the prosecutor. BREZNIAK: I call on the prosecutor to admit that this man, Mr Masri, has no previous recorded criminal convictions. SOLICITOR ADVOCATE: It's not disputed, it's consented to. BREZNIAK: So I don't need to ask the witness, and that's the only questions, your Honour, in addition that I'd seek to ask in chief. Thank you, your Honour 1. Later, during an interruption to the cross-examination of the accused, the following exchange occurred: HIS HONOUR: Anything before we bring the jury in? SOLICITOR ADVOCATE: No. BREZNIAK: No. Just at the end of the evidence of this witness, I'll seek an adjournment of about five or ten minutes in relation to the other question that was raised this morning about the way in which the defence case - but it won't be more than that. It's just to get instructions and to deal with those matters. HIS HONOUR: That Stalder case presents some problems. BREZNIAK: Yes, it does indeed. HIS HONOUR: So if that's of any assistance to you when you're getting your instructions. BREZNIAK: Yes. If there was any case we didn't like, it was R v Stalder, the defence side. 1. The parties accept that "the other question that was raised this morning" concerned the character evidence. 2. At the conclusion of the appellant's evidence the following exchanges occurred concerning the character evidence: HIS HONOUR: So, what's the position? Is that your case apart from this next matter, or are you call-- BREZNIAK: It is about whether it's my case or not, your Honour. Precisely, that next matter. But I only need a few moments to clarify that so by the time your Honour returns, or before, I will know-- HIS HONOUR: No, that's all right. We'll have ten minutes because the accused has been in the witness box for quite a while. We'll just have a break. BREZNIAK: Thank you, your Honour. SHORT ADJOURNMENT HIS HONOUR: Yes, Mr Brezniak. BREZNIAK: Your Honour, I will seek to close the case of the defence without further evidence. HIS HONOUR: All right. I do understand those instructions. 1. After defence counsel closed his case, the following exchanges occurred: HIS HONOUR: You don't necessarily have to attend to this now, Mr Crown and Mr Brezniak, but have you thought of any directions that I should give regard to overnight that you're seeking, apart from all the normal closing or summing-up directions, inferences, onus and burden, the manner in which the evidence was given by the complainant and her support person, KRM and a separate verdicts direction because we've got no less than 12 charges here, a Markuleski direction for the same reasons, we've got 12 charges. Do you want a Trivanavic one, Mr Brezniak? It would be natural to ask yourselves why the complainant, … , would make up such serious allegations against the accused. Do you have anything to say about that, either of you? Do you want me to read it to you? [Following discussion about that matter, the trial judge said:] HIS HONOUR: The accused gave evidence. I'll give that direction as to how he should be treated as any other - that he doesn't have to go into the witness box, but once he does, he's treated like any other witness, et cetera, et cetera. Now, is there anything else you can think of that I've, at the moment, forgotten to mention? Of course, I've got to do some work, Mr Crown, Mister - a fair bit of work on the elements because we have seven charges of sexual intercourse, four charges of indecent assault and one charge of attempted sexual intercourse. I'm trying to get those consent and knowledge of consent directions so that a jury can understand them. Yes. SOLICITOR ADVOCATE: If there's anything I can do to assist with that, your Honour. HIS HONOUR: Looking at what you've done, which is pretty much - I was thinking of, for instance, starting with sexual intercourse without consent and saying - filling in the blanks on counts 3, 4, 7, 8, 9, 10 and 12, the accused is charged with sexual intercourse without consent knowing that the complainant was not consenting to the sexual intercourse. And then have to go through all of the elements and set it out for them in that way. I might, though - because it takes so much explaining - I might just give the jury a short elements document on indecent assault; sexual intercourse without consent and attempted sexual intercourse without consent, but I'll see if I can get that done when my associate's back and show it to you tomorrow. Is there anything else that you think you want? BREZNIAK: Well, there's going to be a few. [Mr Brezniak then raised the need for a warning under s 165 of the Evidence Act 1995 (NSW) concerning the complainant's deletion of some phone messages, and directions about DNA evidence, publicity, and consent in sexual offences. At the conclusion of the discussion the following occurred:] HIS HONOUR: … Anything further? BREZNIAK: There's nothing further. HIS HONOUR: Look, if you think of - particularly Mr Brezniak, before we start tomorrow at 10.00, if you can talk with the Crown and see if there's anything about that reliability type area that you think deserves a direction, because I need to see that. All right? BREZNIAK: Yes. 1. The following morning, Mr Brezniak raised two matters, neither of which concerned a character direction. His Honour then commenced his summing-up. There were three breaks during the summing-up. On each occasion, and at the end his Honour asked counsel if they wished to raise any matter. At no point did defence counsel say anything about a character direction. Submissions 1. The appellant submitted that his good character was relevant, not simply as to the likelihood of whether he committed the offences, but also as to his credibility. The appellant submitted that the case against him could be properly described as a "word on word" case, particularly insofar as the issue of consent was concerned. In that way, his character was capable of playing a significant role in the assessment of him and his account of the events. The absence of a direction or mention of the fact that he had no prior criminal history, were matters, which occasioned a miscarriage of justice. 2. The appellant submitted that it was important for the jury to have evidence of good character and be given instructions on how to use it, because he gave evidence to explain the apparent admissions in the telephone intercept with the complainant. In that way his credibility was in issue. One limb of the character direction concerned credibility. The appellant also submitted that, because the jury had to be satisfied beyond reasonable doubt of the veracity of the complainant's allegations, the direction was important for the second limb, namely, the likelihood of his having committed the offences. 3. The appellant accepted that no direction had been sought from the trial judge and, therefore, that r 4 of the Criminal Appeal Rules applied. However, the appellant submitted that the circumstances disclosed a miscarriage of justice. 4. The Crown submitted that it was clear from the way the character evidence issue developed and was dealt with, and by reference to defence counsel's closing address, that not only was a tactical decision made not to ask for a character evidence direction, but that the decision was made on the instructions of the appellant. Determination 1. In Simic v The Queen (1980) 144 CLR 319 the Court said (at 333): 25. There is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used. We agree with what was said on this point in Reg. v. Schmahl [1965] VicRp 95; (1965) VR 745, at p 750 . No doubt, speaking generally, it is right to add, as was said in that case, that if such a direction is asked for it would be wise to give it. (at p333) 26. In the present case no direction as to the evidence of the applicant's good character was asked for. There is no reason to believe that the jury would not have understood that a man of good character would be unlikely to commit a crime of savage violence such as that with which the applicant was charged. In other words, there is no reason to conclude that the jury would have failed to give the evidence as to good character such weight as it deserved. No miscarriage of justice was in our opinion occasioned by the omission to give a direction on this question. (at p334) 1. That decision was affirmed in Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32. Justice McHugh said at [30]: … [T]his Court should not depart from the rule that a judge is not obliged to direct the jury concerning the accused's good character. The preferable position is that the trial judge must retain a discretion as to whether to direct the jury on evidence of good character after evaluating its probative significance in relation to both: (a) the accused's propensity to commit the crime charged; and (b) the accused's credibility. 1. Justice Hayne said: [156] When is there an issue about the use of character evidence that will call for judicial direction of the jury? The simplest example is, of course, if prosecution and accused make contrary submissions to the jury about whether evidence of prior good character can be used by the jury in assessing the probability of the accused committing the offence charged or in assessing whether the accused should be accepted as having sought to tell the truth in statements he or she has made in or out of court. Clearly, in such a case the judge must tell the jury what is the true position in law: that the previous good character may be used in either or both of these ways. And even if there is no conflict between the parties in their submissions to the jury about how the evidence may be used, there may be occasions where it may be wise for the trial judge to draw the matter to the attention of the jury. So, to take a common example, if an accused of previously undoubted honesty in money matters is tried for an offence of fraudulently obtaining financial advantage, the judge may think it appropriate to draw the attention of the jury to the fact that prior good character may be thought, by them, to make it less likely that the accused acted with dishonest intent. But even in such a case, if no more is known than the bare facts of the case as I have described them, there is no requirement for the judge to give such a direction. Or, to put the matter another way, the absence of such a direction does not lead to the conclusion that the trial miscarried. [157] There is no reason to depart from the conclusion stated in Simic, namely, that there is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used. Of course, if a direction is given, it must be accurate. Ordinarily, however, unless the evidence that is led about the character of the accused has an immediate and obvious connection with an issue in the case, it is better that the judge say nothing of how the jury may use such evidence in reasoning to its conclusions beyond any restatement of counsel's arguments that may be thought necessary or desirable. 1. The debate on the present appeal concerned whether the omission of the defence counsel to ask for a direction arose from a forensic or tactical decision or was a matter of inadvertence. If this Court can reasonably infer that a forensic decision was taken, it will be difficult for the appellant to establish a miscarriage of justice. Counsel for the appellant submitted that a reading of the transcript demonstrated the omission being one of inadvertence, and submitted that nothing was disclosed in the transcript suggesting a forensic decision had been taken. The Crown submitted that the transcript disclosed that the omission to seek the direction was done on the basis of instructions received from the appellant and not simply on the basis of a forensic decision taken by defence counsel. 2. Nevertheless, because no direction was sought by defence counsel, rule 4 applies. The appellant must demonstrate that the absence of a direction led to a miscarriage of justice. This Court must be satisfied that the appellant has lost a real chance of acquittal. 3. In ARS v R [2011] NSWCCA 266 Bathurst CJ (James and Johnson JJ agreeing) said: [147] The effect of the rule was summarised by McHugh J in Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 as follows (at [72]): "There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the appellant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted..." [148] Subsequent cases have established that the following matters are important in considering the operation of r 4: The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170]. The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21]. A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61]. An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130]. 1. In Brown v R [2019] NSWCCA 269, Payne JA (Davies J and Hidden AJ agreeing) said of that passage in ARS at [40]: The latter part of the Chief Justice's observation is particularly apposite in the present case. The fact that trial counsel for the applicant was content with the directions given by the trial judge provides strong reason for thinking that he did not believe, in the atmosphere of the trial, that there was any deficiency which affected the interests of the applicant adversely: see also Greenhalgh v R [2017] NSWCCA 94 at [42] per Basten JA. 1. In TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 the appellant complained that evidence of good character was not led and that this failure constituted a miscarriage of justice. Gleeson CJ said: [8] On the face of it, that was an understandable decision. It was certainly not self-evidently unreasonable, or inexplicable. It was the kind of tactical decision routinely made by trial counsel, by which their clients are bound. And it was the kind of decision that a Court of Criminal Appeal would ordinarily have neither the duty nor the capacity to go behind. Decisions by trial counsel as to what evidence to call, or not to call, might later be regretted, but the wisdom of such decisions can rarely be the proper concern of appeal courts. It is only in exceptional cases that the adversarial system of justice will either require or permit counsel to explain decisions of that kind. A full explanation will normally involve revelation of matters that are confidential. A partial explanation will often be misleading. The appellate court will rarely be in as good a position as counsel to assess the relevant considerations. And, most importantly, the adversarial system proceeds upon the assumption that parties are bound by the conduct of their legal representatives. … [16] It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In the present case, the decision not to adduce character evidence was made for an obvious reason: to avoid the risk that the prosecution might lead evidence from K. [17] Trial counsel made a decision not to call certain evidence. Viewed objectively, it was a rational tactical decision, made in order to avoid a forensic risk. It did not make the trial unfair, or produce a miscarriage of justice. 1. Similarly, Gaudron J said: [27] 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. 1. Justice Hayne said: [107] No less importantly, however, it follows from the characteristics of a criminal trial which I have identified that, when it is said that a failure to call evidence which was available to the defence at trial has led to a miscarriage of justice, the question presented to an appellate court requires an objective inquiry, not an inquiry into the subjective thought processes of those who appeared for, or advised, the accused at trial. The relevant question is not: why did counsel not lead the evidence, or was counsel competent or incompetent? It is: could there be any reasonable explanation for not calling the evidence? 1. In Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 the appellant alleged that a miscarriage of justice occurred by reason of the incompetence of counsel. Having made reference to TKWJ, Gleeson CJ discussed the problems arising from a failure of counsel to take some action in respect of which Rule 4 might apply. His Honour then went on to say at [10]: … A court of criminal appeal is an unsatisfactory forum for assessing the performance of trial counsel, and appellate courts, recognising that difficulty, seek to avoid such assessment unless it is unavoidable. I mention the practical problems that arise in the application of r 4, because the existence of such problems is of wider significance, and bears upon the principles to be applied in resolving a question of miscarriage of justice. To the extent to which it is reasonably possible, the focus of attention should be the objective features of the trial process. Nevertheless, there may be circumstances where it is relevant to ask why some act or omission occurred. In some cases, for example, it may be material to know that counsel took a certain course upon the instructions of the client. There could be circumstances in which it is material to know that a course was taken contrary to instructions. The possibility of a need to know the reason for conduct cannot altogether be eliminated. In general, however, as far as justice permits, the enquiry should be objective. As a matter of principle, such objectivity is consistent with the assumptions on which the adversarial system operates. As a matter of practicality, it avoids the difficulties inherent in turning a criminal appeal into an investigation of the performance of trial counsel. 1. Viewed objectively, an examination of what took place at the trial relevant to the matter of the appellant's character leads to the firm conclusion that the decision of defence counsel not to seek a direction concerning character evidence was a forensic decision, and probably made on express instructions from the appellant. The following matters are relevant. 2. Defence counsel said that his starting position that he would be seeking a full character direction given the availability of evidence of good character. That was followed by discussions both in open court and between counsel concerning that evidence and the evidence that might be led in rebuttal of it. What was said in open court (see at [21] above) is that there was a second complaint that the Crown was originally going to proceed in a joint trial with the trial involving the present complainant. There also appeared to be matters involving students at the school where the applicant taught. 3. At the end of the appellant's evidence in chief, the Crown conceded that the appellant had no previous recorded criminal convictions. 4. The subsequent discussions, particularly concerning what was said by this Court in R v Stalder [1981] 2 NSWLR 9, pointed to the likelihood of the Crown responding to any evidence of good character led by the appellant, with evidence likely to rebut that evidence. Defence counsel indicated that he needed to consider and obtain instructions about whether the character evidence should be called by him. After an adjournment, defence counsel indicated that he would close the defence case with calling that evidence. 5. The appellant did not perform well in cross-examination. There were plain inconsistencies between his evidence and what he said in the telephone intercept. In defence counsel's closing address, in making a brief reference to the appellant's evidence, he said: His answers were, towards the end of his evidence, even perhaps unnecessarily argumentative with the prosecutor. Counsel for the appellant at the hearing of the appeal described the appellant's evidence as "appalling" and said that "one wouldn't wish to draw attention to it". 1. Despite the solicitor advocate at the trial addressing for approximately one page of the transcript about the appellant's evidence and drawing the jury's attention to its shortcomings, all that defence counsel said about the appellant's evidence at the very end of his address was this: Mr Masri has given evidence in this case. You are the judges of how much you can rely upon what he said. My submission, contrary to that of the prosecutor, is that his answers were easy enough. His answers were, towards the end of his evidence, even perhaps unnecessarily argumentative with the prosecutor. But he was clear and the answers he gave were, in my submission to you, in accordance with the very tone of that conversation which is recorded in exhibit J and which is MFI 7 [The intercepted phone call between the complainant and the appellant together with the transcript of that call]. 1. Defence counsel concentrated most of his final address on attacking the evidence and credibility of the complainant. That approach in the final address certainly contributed to the acquittal of the appellant on the first nine counts in the indictment. Defence counsel's decision not to focus on his own client is entirely understandable following the cross-examination. 2. In the way that matters developed at the trial, particularly during the appellant's cross-examination, it is tolerably clear that the omission of defence counsel to seek any form of character direction was not one of inadvertence but was a tactical decision seemingly taken on express instructions. When there had previously been extensive debate about the character evidence, it is difficult to conclude that defence counsel simply overlooked the need to seek such a direction. That is the more so when, at the request of the trial judge, he identified a number of matters about which he said directions should be given. The likelihood is that the issue of good character had retreated into the background of the trial by that point. 3. Nor do I consider that the appellant establishes that he has lost a real chance, or a chance fairly open, of being acquitted. Contrary to the submission of counsel for the appellant, this was not simply a word on word case. The significance of what was in the telephone intercept was confirmed by the distinction the jury made between counts 1-9 on the one hand and counts 10, 11 and 12 on the other. There was more than sufficient material in the conversations in those phone calls to justify the verdicts on counts 10, 11 and 12 on the basis that the appellant was reckless as to whether the complainant consented to the sexual intercourse and the indecent assault, the subject of those counts. 4. The only character direction that could have been given by the trial judge was that the appellant had no prior convictions and that the jury could use that when assessing his credibility and the likelihood of his having committed the offences. In the face of the appellant's evidence under cross-examination, the way his evidence was dealt with by defence counsel in closing address and the material amounting to admissions in the telephone intercept, such a direction is likely to have made no difference to the outcome. 5. In my opinion, rule 4 operates to preclude the appellant from relying on this ground of appeal. Since this is the only ground relied upon, leave to appeal should be refused. Conclusion 1. I propose the following order: (1) Leave to appeal against conviction refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 February 2020