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Court of Criminal Appeal 10 October 2025

Neil v R

[2025] NSWCCA 160

Sexual offences

Citation: Neil v R [2025] NSWCCA 160
Court: Court of Criminal Appeal, NSW
Date: 10 October 2025
Judges: Adamson JA, N Adams J, McGuire J

Background

The applicant was convicted by jury of one count of sexual intercourse with a child under 10 years without consent, contrary to s 66A of the Crimes Act 1900 (NSW). The alleged offending occurred between 1989 and 1990, when the complainant was aged 8 to 9 years. The applicant and his wife were family friends of the complainant's parents, and the alleged conduct took place during a social gathering at a third family's home in the Southern Highlands, where the applicant was said to have digitally penetrated the complainant while she lay in bed upstairs.

At trial, the prosecution relied principally on the complainant's evidence, corroborating complaint evidence, and tendency evidence from a former student of the applicant. The applicant gave sworn evidence denying the offence. Although a second former student had made similar allegations at the time, those allegations were excluded from the tendency notice shortly before trial. The jury thus heard tendency evidence from only one witness, and the applicant nonetheless received a good character direction.

The applicant sought leave to appeal against his conviction on the sole ground that the trial miscarried because the trial judge failed to direct the jury that his good character was relevant to assessing his credibility as a witness, as distinct from the direction given regarding the likelihood of him committing the offence.

  • Whether the trial judge was obliged to direct the jury that evidence of the applicant's good character was relevant to assessing his credibility as a witness.
  • Whether the omission of a credibility limb in the good character direction constituted an error or irregularity at law.
  • Whether any such omission caused a miscarriage of justice, given the way good character evidence was addressed during the trial and summing up.
  • Whether an ambiguous jury note referring to "honesty and integrity" was relevant to whether the omission had any adverse effect on the jury's deliberations.

Decision

The Court of Criminal Appeal, with all three judges in agreement, dismissed the appeal. Adamson JA delivered the principal judgment, with N Adams J and McGuire J each writing briefly to agree.

On the question of whether the direction was obligatory, the Court held that there is no rule requiring a good character direction to be given at all. Further, where such a direction is given, there is no positive obligation on a trial judge to include both the guilt limb and the credibility limb. While there is a well-established practice of directing juries on both uses of good character evidence, a departure from that practice does not of itself constitute error or an irregularity of law.

Even if the omission were treated as a departure from best practice, the Court found no real risk that it deflected the jury from its fundamental task of deciding whether the prosecution proved its case beyond reasonable doubt. The trial judge had extensively referred to the applicant's good character and honesty in the summing up, directing the jury that good character was relevant to the likelihood of committing the offence. Neither the Crown, defence counsel, nor the trial judge had suggested to the jury that it could not use the honesty evidence when assessing the applicant's credibility. In those circumstances, the extensive reference to the applicant's honesty in the summing up was sufficient to prevent any real risk that the jury would overlook that use of the evidence.

The Court also addressed a jury note sent during deliberations that referenced "honesty and integrity." The trial judge had invited the jury to clarify the note, but before any clarification was provided, the jury returned a unanimous guilty verdict. The Court drew the inference that whatever the note meant, it did not impede the jury's capacity to reach a verdict, and no adverse inference could be drawn from its contents.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No absolute rule requires a trial judge to give a good character direction, and where one is given, there is no obligation to include a direction on both the guilt limb and the credibility limb.
  • Departing from the established practice of directing on both uses of good character evidence does not, without more, constitute an error of law or an irregularity sufficient to ground an appeal.
  • Where the trial judge extensively references an accused's honesty in the summing up, and no party suggests the jury cannot use that evidence on credibility, the absence of a positive direction to that effect does not necessarily create a real risk of miscarriage of justice.
  • An ambiguous jury note will not, without more, support an inference that a direction deficiency affected the jury's deliberations, particularly where the jury subsequently returned a unanimous verdict without providing the clarification the trial judge sought.
  • In dismissing the appeal, the Court also observed that the atmosphere of the trial, including the Crown's decision to confine tendency evidence to one witness and not oppose a good character direction, provided context for why defence counsel had not objected to the direction as given.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A
- Criminal Appeal Act 1912 (NSW), s 5
- Evidence Act 1995 (NSW), s 112
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- Simic v The Queen (1980) 144 CLR 319
- Liberato v The Queen (1985) 159 CLR 507
- R v Murphy (1985) 4 NSWLR 42
- R v Wasow (1985) 18 A Crim R 348
- R v Farquhar (NSW CCA, 29 May 1985, unrep)
- Melbourne v The Queen (1999) 198 CLR 1
- Gilbert v The Queen (2000) 201 CLR 414
- Stanoevski v The Queen (2001) 202 CLR 115
- Germakian v R (2007) 70 NSWLR 467
- Sanchez v R [2009] NSWCCA 171
- Hargraves v The Queen (2011) 245 CLR 257
- Aravena v R (2015) 91 NSWLR 258
- Filippou v The Queen (2015) 256 CLR 47
- Greenhalgh v R [2017] NSWCCA 94
- De Silva v The Queen (2019) 268 CLR 57
- Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531
- Huxley v The Queen (2023) 98 ALJR 62
- BQ v The King (2024) 279 CLR 124
- Brawn v The King (2025) 99 ALJR 872
- Radburn (a pseudonym) v R [2025] NSWCCA 125