Hu v R

1. [1]

   DAVIES J: I agree with Wright J.

2. [2]

   WRIGHT J: Between 2013 and 2019, the applicant, Mr Ming Jie Hu, was an osteopath practising in Sydney under the business name Back Pain Solutions.

3. [3]

   On 29 August 2023, he was found guilty of: one count of aggravated indecent assault of a patient in February 2013, count 1; and, one count of aggravated sexual intercourse without consent in relation to another patient in September 2019, count 2. The jury was unable to reach a verdict on two other counts of aggravated sexual touching without consent, counts 3 and 4, which related to two other patients in October 2019.

4. [4]

   By a notice of appeal filed on 16 October 2024, the applicant seeks to appeal against his conviction on counts 1 and 2.

Background

1. [5]

   The applicant was charged with four offences. Each of the offences related to a separate complainant. I shall refer to the four complainants as JB, NK, AF and KC. [1] The four offences were as follows:

   1. (1)

      Count 1 – aggravated indecent assault of JB contrary to s 61M(1) (now repealed) of the Crimes Act 1900 (NSW) between 1 and 28 February 2013;

   2. (2)

      Count 2 – aggravated sexual intercourse with NK without consent contrary to s 61J(1) of the Crimes Act on 30 September 2019;

   3. (3)

      Count 3 – aggravated sexual touching of AF without consent contrary to s 61KD(1)(a) of the Crimes Act on 8 October 2019; and

   4. (4)

      Count 4 – aggravated sexual touching of KC without consent contrary to s 61KD(1)(a) of the Crimes Act on 28 October 2019.

2. [6]

   In each case, the aggravating circumstances were said to be that the complainant was under the applicant’s authority.

3. [7]

   On 11 July 2023, Abadee DCJ heard and ruled on the applicant’s application for a separate trial for each count on the indictment. As stated by his Honour, the only basis for the application was the Crown’s intention to rely on evidence from each complainant as being cross-admissible as tendency evidence in relation to the counts involving the other complainants. [2] As a result, his Honour also considered and ruled on the admissibility of the tendency evidence.

4. [8]

   His Honour’s conclusion was that the tendency evidence was admissible and “[t]here being no other ground for severance of the counts, the [applicant’s] motion is dismissed”. [3]

5. [9]

   On 1 August 2023, the trial before Huggett DCJ began and there was discussion with counsel concerning the circumstances of aggravation and the concept of being “under the authority” of another person.

6. [10]

   On 2 August 2023, the jury was empanelled and during her Honour’s opening remarks to the jury, a brief outline of the elements of the offences charged was given and this included an explanation of the circumstances of aggravation by a complainant being “under the authority of” the accused and the Crown’s contention in that regard.

7. [11]

   By way of evidence, the Crown called each complainant, five complaint witnesses, a chiropractor at Back Pain Solutions and the Officer In Charge.

8. [12]

   The evidence in the defence case included that of the applicant as well as evidence from two expert witnesses: Dr Andrew Korda, an obstetrician and gynaecologist; and Dr Allan Terrett, a chiropractor. The defence also called evidence from three character witnesses, including one patient of the applicant who did not experience any conduct such as that which formed the basis for any of the four counts.

9. [13]

   Draft directions, including in relation to tendency evidence, and the form of written directions proposed to be given, including in relation to the element of being “under the authority” of the applicant, were provided by the trial judge to the parties for comment. The Crown’s closing address referred to the Crown’s submissions as to the circumstances of aggravation. The defence closing address did not include any substantial submissions concerning whether the complainants were “under the authority” of the applicant. In the summing up, the trial judge directed the jury orally and in writing in relation to the complainant being “under the authority” of the applicant for the purpose of the aggravating circumstances element of each charge. The summing up also contained directions in relation to tendency evidence which were based to some extent on the suggested tendency evidence directions in the Criminal Trial Bench Book. The oral directions were substantially in accordance with the draft directions provided. As a result of a request from counsel for the defence, her Honour gave a further direction in relation to drawing inferences and the standard of proof but no redirection was sought in respect of the element of “being under the authority” of the applicant or tendency evidence.

10. [14]

    On 29 August 2023, the jury returned verdicts of guilty on counts 1 and 2 but could not agree on the remaining two counts, counts 3 and 4. A second trial in respect of counts 3 and 4 is scheduled to commence on 1 September 2025.

11. [15]

    On 1 December 2023, the applicant was sentenced to an aggregate sentence of imprisonment for 3 years and 6 months, commencing on that date, with a non-parole period of 1 year and 9 months expiring on 31 August 2025.

The appeal

1. [16]

   A notice of intention to appeal was filed on 19 December 2023. The notice of appeal was filed on 16 October 2024 and sought to appeal against the convictions in respect of counts 1 and 2 on four grounds, with an additional ground 5 added by leave granted at the hearing on 21 March 2025, as follows:

2. [17]

   These grounds fall into two groups by subject matter. Grounds 1 and 2 relate to the circumstances of aggravation and whether the complainants were “under the authority” of the applicant. These two grounds can be dealt with together.

3. [18]

   Grounds 3, 4 and 5 relate to the tendency evidence admitted and, in particular, whether the evidence should have been found to be admissible as tendency evidence and the directions given by the trial judge in relation to the tendency evidence.

Grounds 1 and 2 – The circumstances of aggravation

1. [19]

   The first two grounds of appeal raise in substance the issue of whether a person who was a patient of, and actually receiving treatment from, an osteopath was “under the authority” of the osteopath for the purposes of ss 61J(2)(e) and 61M(3)(c) of the Crimes Act.

2. [20]

   Ground 1 focused on what was said to be the trial judge’s error “in holding that it was open to find” that the fact that the applicant was providing osteopathic treatment to the complainants meant they were “under his authority”. Ground 2 contended that directing the jury to that effect amounted to a misdirection and led to a miscarriage of justice.

3. [21]

   In relation to the first ground, the applicant referred to comments made by the trial judge when discussing the element of “under authority” with counsel prior to the empanelling of the jury, during her opening remarks to the jury and in discussion with counsel concerning directions to the jury and submitted that:

4. [22]

   It was then submitted in substance that on the proper construction of the definition of “under the authority of another person” in s 61H(2) of the Crimes Act, the words “in the” in the expression “in the care of” suggest a relationship where a person has a right to control or a right to command another person. In addition, it was said that the references to “care”, “supervision” or “authority”, in the definition are a compound phrase defining the essential control features of the relationship, namely control which enables an accused to exert a lawful power or some such influence and it is not enough that there be some “caring or concerned relationship”. Thus, it was submitted:

5. [23]

   The applicant’s ultimate submission in this regard was that, based on the trial judge’s view that the relationship of osteopath and patient gave rise to the patient being “under authority” and her directions to the jury in that regard, the trial judge’s directions “could only have been understood by the jury to be a final direction of law to the effect that they should find the element proven”.

6. [24]

   This was said to raise a question of law and thus leave to appeal was not required by virtue of s 5(1)(a) of the Criminal Appeal Act 1912 (NSW). Alternatively, however, leave was sought if ground 1 involved a question of mixed fact and law within s 5(1)(b) of that Act. It was submitted that r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Criminal Appeal Rules) did not apply in the circumstances of the present case.

7. [25]

   The applicant noted that he sought leave to appeal on ground 2 which related to there being a misdirection by the trial judge as to the circumstances to be considered when determining whether the aggravating circumstances were made out. It was said that r 4.15 did not apply in this regard. Referring to the same passages from the trial judge’s opening remarks, the Crown’s closing address and her Honour’s directions to the jury as referred to above, the applicant contended that the directions would have left the jury with the overwhelming impression that a patient receiving care or treatment from an osteopath amounted to that person being “under the authority” of that person. It was submitted that, as a consequence, the jury was deprived of the opportunity to make any finding other than that the circumstance of aggravation was established. This was said also to have a flow-on effect in respect of each of the counts.

8. [26]

   On these bases, the applicant submitted that her Honour’s “determinations” concerning the aggravating circumstance and directions to the jury were in error and that a miscarriage of justice was thereby occasioned, and the convictions should be set aside. It was also said that, given that the misdirection affected the real issues between the parties at trial, a new trial should be ordered.

9. [27]

   The Crown submitted that, although the first ground of appeal was framed as involving an error in the trial judge’s “holding” that it was open to find that the complainants were “under the authority” of the accused merely because they were receiving osteopathic treatment from him, there was no such “holding” whether by way of ruling, finding or otherwise; nor was such a ruling sought. Thus, it was submitted there was no “wrong decision on any question of law” so as to fall within the second limb in s 6(1) of the Criminal Appeal Act.

10. [28]

    The Crown also contended that, contrary to the applicant’s position in these proceedings, at first instance it had been accepted by the applicant that the relationship between the applicant and the complainants was capable of establishing the circumstances of aggravation but it remained a question of fact for the jury. It was noted that trial counsel for the accused did not submit in his closing address that the circumstances of aggravation had not been made out.

11. [29]

    To the extent that the applicant submitted that it was not open to the jury to find that the element of circumstances of aggravation was made out, it was noted that this did not advance a ground that asserted an erroneous finding by the trial judge. The Crown also observed that there was no ground of appeal contending that the verdicts of the jury were unreasonable or unable to be supported by the evidence, in regard to the circumstances of aggravation.

12. [30]

    As to the second ground, the Crown noted that it asserted a miscarriage of justice arising out of misdirection of the jury concerning the “under authority” circumstances of aggravation and contended that r 4.15 did apply since trial counsel for the accused had been provided with the proposed directions and raised no objection and did not seek any relevant redirection.

13. [31]

    After referring to the principles concerning the duties of a trial judge in relation to instructing the jury, the Crown submitted that, in the context of the whole of the summing up, the jury would not have been left with the overwhelming impression that the element of being “under authority” had been established and they were not deprived of the opportunity to make any other finding. It was contended that the trial judge was only required to instruct the jury on so much of the law as the jury needed to decide the real issues in the trial and, given the way in which the trial had been conducted, the trial judge was not required to instruct the jury on possible meanings of the under authority element or possible ways it might be proved.

14. [32]

    Furthermore, it was submitted by the Crown that the summing up did not deflect the jury from its fundamental task of deciding whether the elements of the offences charged were proved beyond reasonable doubt. It was noted that trial counsel raised no objection to the directions and this was said to be an indication that no miscarriage of justice had occurred.

15. [33]

    It was submitted that leave to appeal should be refused.

16. [34]

    In respect of each count, it was in issue whether the element that the offence occurred in “circumstances of aggravation”, because the complainant was “under the authority of” the applicant, was proved beyond reasonable doubt.

17. [35]

    At the heart of the applicant’s submissions in respect of grounds 1 and 2, is the proper construction of the words “under the authority of” in:

    1. (1)

       s 61M(3)(c) of the Crimes Act as in force at February 2013 for the purposes of defining the relevant “circumstances of aggravation” in s 61M(1); and

    2. (2)

       s 61J(2)(e) of the Crimes Act as in force at October 2019 for the purposes of defining the relevant “circumstances of aggravation” in s 61J(1).

18. [36]

    At the relevant time, s 61M provided, inter alia:

19. [37]

    At the relevant time, s 61J provided, inter alia:

20. [38]

    At both relevant times, s 61H(2) of the Crimes Act provided a definition of “under the authority of” as used in both s 61M(1) and s 61J(1) in the following terms:

21. [39]

    The structure of s 61H(2) indicates that it is intended to broaden the ambit of the meaning of the expression “under the authority of another person” to include being:

    1. (1)

       “in the care … of the other person”; and

    2. (2)

       “under the supervision … of the other person”,

22. [40]

    The structure of s 61H(2) and the different, ordinary meanings of the words “care”, “supervision” and “authority” do not suggest that the subsection was intended to operate as an hendiadys or as one composite expression designed to convey a single idea of when a person is “under the authority of another person”. The three elements of the definition do not appear to work together to create a new composite or portmanteau result. Rather, each of the three elements appears to have independent work to do in determining whether particular facts fall within the description of being “under the authority of another person”. This is similar to the situation in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50 at [14] (French CJ, Kiefel, Bell and Keane JJ) where it was held that the expression “lawfully used or occupied” was not a composite expression but was to be understood by separate consideration of the words “used” and “occupied” because those two terms referred to different concepts and a natural reading of the phrase was that either a lawful use or a lawful occupation of the land would defeat a relevant claim.

23. [41]

    This approach is supported by the observation in relation to the definition in s 61H(2) by this Court in KSC v R [2012] NSWCCA 179 by McClellan CJ at CL (with whom Davies and Fullerton JJ agreed), at [125]:

24. [42]

    Furthermore, and by way of example, in Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 Hoeben CJ at CL (with Button and N Adams JJ agreeing) held in effect, at [79], that the element of circumstances of aggravation could be satisfied by evidence establishing that the complainant was “in the care of her teacher mentor”. It was not suggested that it would be necessary to consider whether the complainant was under also the supervision, authority or subject to the control of that person.

25. [43]

    No other authority suggests or requires a different approach to be taken.

26. [44]

    In addition, there does not appear to be anything in the context, scope or purpose of the relevant provisions, or the Crimes Act as a whole, which would suggest that an approach different to that set out above is required or appropriate in relation to s 61H(2).

27. [45]

    Finally, under s 34(1)(a) and (2)(f) of the Interpretation Act 1987 (NSW), the second reading speech may be taken into account to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision. Section 61H(2) was introduced in 1989 by the Crimes (Amendment) Act 1989 (NSW) and was applicable to sexual offending against persons of any age as described in ss 61J and 61M, as well as to such offending against persons under 16 years of age in s 61O. The relevant Second Reading Speech for the 1989 Act noted that the aggravating categories “encompass[ed] the existing aggravating features in the Crimes Act” such as “where the victim is under the authority of the offender” but were extended to include additional features, which are not presently relevant. [4] The “under the authority” circumstance of aggravation, with a definition in materially the same form as s 61H(2), had originally been introduced into the Crimes Act by the Crimes (Child Assault) Amendment Act 1985 (NSW). That circumstance of aggravation in the 1985 Act only applied to offending against persons under 16 years of age, namely the offences in ss 61D(1A), 61E(1A) and (2A), 66C(2) of the Crimes Act at that time. In the second reading speech for the 1985 Act, [5] it was said: [6]

28. [46]

    Notwithstanding that the “under the authority” circumstance of aggravation had originally been limited to offending against persons under 16 years of age, its application was extended by the 1989 Act to include offending against a person without any age restriction. The Second Reading Speech for the 1985 Act made clear that the three positions which might give rise to a person being under the authority of another person were “a position of care, supervision or authority”. This indicates that the three different types of positions were to be considered independently and not as a composite. The examples given in the Second Reading Speech for the 1985 Act were naturally limited at that time to those which might be most applicable to children under 16 years of age. It does not appear, however, that those examples were intended to limit, rather than illustrate, the circumstances in which a person may be found to be “under the authority” of another person for the purposes of the relevant provisions of the 1985 Act. Nor would it appear that the examples were intended to limit the types of positions which might amount to being “under the authority” for the purposes of the more general provisions introduced by the 1989 Act, such as s 61M and s 61J of the Crimes Act.

29. [47]

    In my view, on the proper construction of s 61H(2) each of the three elements: being in the care of a person; being under the supervision of a person; and, being under the authority of a person, can and should operate independently in determining what relationships might fall within the description of being “under the authority of another person” for the purposes of the circumstances of aggravation referred to in provisions such as s 61M(1) and (3)(c) and s 61J(1) and (2)(e).

30. [48]

    It follows that an alleged victim or complainant (person A) will be “under the authority of” the alleged offender or the accused person (person B), if person A is “in the care of” the person B. As observed by this Court in KSC, “care” in this context is an ordinary English word. In s 61H(2), it should be given its ordinary English meaning. This includes the underlying concept that the second person is responsible for the welfare, in one form or another, of the first person. In this context, the ordinary meaning of “care” includes “health care”, that is treatment by a health care professional, whether that be a surgeon, osteopath or other such professional. A person receiving health care treatment is in ordinary usage said to be “in the care of” the health care professional. A person undergoing surgery can be said to be “in the care of” the surgeon; a person receiving osteopathic treatment can be said to be “in the care of” the osteopath. This usage of “care” captures the underlying concept of a health care professional being responsible for the welfare of a patient because of the relationship between the patient and the health care professional and the dependence of the patient while receiving treatment on the professional training and conduct of the health care professional.

31. [49]

    In short, on the proper construction of the relevant provisions, when there is a relationship of patient and health care professional and the patient is receiving treatment from the health care professional, the patient is “in the care of”, and thus “under the authority of”, the health care professional for the purposes of s 61H(2) and ss 61M and 61J.

32. [50]

    For these reasons, I do not accept the applicant’s submissions that s 61H(2) refers to:

33. [51]

    Accordingly, it was open to the jury to be satisfied that a complainant was “in the care of”, and thus “under the authority of”, the applicant if the complainant was receiving osteopathic treatment from the applicant in his capacity as an osteopath at the relevant time.

34. [52]

    It follows from this that, even if Huggett DCJ “held” in any relevant sense “that it was open to find that the mere fact of the [applicant] providing osteopathic treatment to each of the complainants at the time of the offending established the circumstance of aggravation alleged, namely being under his authority”, as the applicant contended in ground 1, there was no error.

35. [53]

    More specifically, the applicant relied on certain comments or statements by the trial judge as demonstrating error for the purposes of ground 1. These included a discussion before the jury was empanelled in which her Honour said: [7]

36. [54]

    This, however, was not a ruling by her Honour. It was an attempt to encapsulate a possible view of the law in relation to one of the potential issues at trial in order to determine what was really in issue. The trial judge accepted, however, that counsel for the defence did not apparently accept that encapsulation since her Honour continued in the same passage: [8]

37. [55]

    Even though her Honour accepted that whether the complainants were “under the authority” of the applicant remained in issue, her encapsulation of the construction of “under the authority” was not erroneous. There was no basis in these comments for finding that ground 1 had been made out.

38. [56]

    Further, the applicant relied on comments by the trial judge when discussing appropriate directions to the jury with counsel that: [9]

39. [57]

    Once again, this was not a ruling by her Honour but a discussion as to whether the element of “under the authority” was really in dispute. The trial judge went on immediately after to say to defence counsel: [10]

40. [58]

    Moreover, the directions which were eventually given to the jury in this regard reflected the position of defence counsel in that the issue of whether the complainant was “in the care of” and therefore “under the authority of” the applicant was left to the jury as a question of fact. There was also no error in this direction.

41. [59]

    In summary, none of the matters raised in respect of ground 1 established that there was any error made by the trial judge as submitted by the applicant.

42. [60]

    To the extent that the applicant requires leave in respect of ground 1 under s 5(1)(b) of the Criminal Appeal Act, I would grant leave because the issue of the proper construction of the phrase “under the authority of” in s 61H(2) raised a point of general principle. Nonetheless, the appeal on ground 1 should be dismissed for the reasons given above.

43. [61]

    Ground 2 involved in substance the contentions that the trial judge misdirected the jury by saying that “the circumstance of aggravation of ‘under authority’ meant a patient receiving treatment from an osteopath” and that this misdirection led to a miscarriage of justice.

44. [62]

    The passages from her Honour’s opening remarks and summing up to the jury which were impugned under ground 2 included most pertinently the following:

    1. (1)

       From the opening remarks: [11]

    2. (2)

       From the summing up: [12]

    3. (3)

       From the written directions to the jury: [13]

45. [63]

    In light of the construction of the words “under the authority of” and “in the care of” set out above, there was no error in any of her Honour’s remarks or directions.

46. [64]

    Furthermore, the duty of a trial judge is to determine what the real issues in the case are and to direct the jury on only so much of the law as they need to know to guide them to a decision on those issues: Huynh v The Queen (2013) 214 CLR 1; [2013] HCA 6 at [31] (French CJ, Kiefel, Bell and Gageler JJ). In the present case, after making enquiry of counsel for the applicant, the trial judge determined that it was in issue whether the circumstances of aggravation element had been made out in respect of each count. Consequently, her Honour directed the jury on that issue.

47. [65]

    As set out in the passages from the oral and written directions quoted above, the directions were appropriately limited to the applicable aspect of the definition of “under the authority of” set out in s 61H(2) in the context of a health care professional's relationship with a patient, namely, that “[a] person is under the authority of another person if the person is in the care of the other person at the relevant time”. As has already been noted, in this context “care” is an ordinary English word. It was not necessary for the trial judge to define the word “care” for a jury and doing so would involve substituting a different word or words for the very word used in the statute with the attendant risk of error or misdirection.

48. [66]

    In these circumstances, there was no misdirection by the trial judge.

49. [67]

    More specifically, there was no misdirection by the trial judge directing the jury “that the circumstance of aggravation of ‘under authority’ meant a patient receiving treatment from an osteopath”, as expressly contended under ground 2. No such direction was given by the trial judge during the summing up. The trial judge’s opening remarks to the jury did include the words “in terms of an osteopath that a person having an osteopathic consultation is under that osteopath’s care”. Nonetheless, when the sentence in which those words occur is considered as a whole, it is clear that in this comment her Honour was summarising the Crown’s position and not giving a direction of law to the jury. The full sentence is: [14]

50. [68]

    Finally, in Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62 (Huxley), Gordon, Steward and Gleeson JJ held:

51. [69]

    Having regard to the issues in the proceedings and the directions in the summing up taken as a whole in the context of the trial including the opening remarks, there was nothing which could properly be said to have deflected the jury’s attention from the need to be persuaded beyond reasonable doubt of each of the elements of the relevant offence and of the accused’s guilt including the element of being “under the authority of” the applicant. Accordingly, there was no basis for finding that there was a miscarriage of justice as contended for by the applicant under ground 2.

52. [70]

    Since the applicant’s trial counsel was provided with the relevant proposed directions by the trial judge and raised no objection and did not seek any redirection either during or at the end of the summing up, r 4.15 applies. In addition, because ground 2 involved a question of mixed law and fact, leave under s 5(1)(b) of the Criminal Appeal Act is also required. In the absence of any misconstruction of the definition of “under the authority of”, any misdirection or any miscarriage and in all the circumstances, in my opinion, leave under s 5(1)(b) and under r 4.15 should be refused in respect of ground 2.

Grounds 3, 4 and 5 – The tendency evidence and directions

1. [71]

   Ground 3 contended, in effect, that Abadee DCJ’s ruling that the evidence of each complainant was admissible as tendency evidence was erroneous insofar as it determined that:

   1. (1)

      the evidence was capable of supporting the asserted tendency;

   2. (2)

      the evidence had significant probative value; and

   3. (3)

      the probative value of the tendency evidence substantially outweighed the danger of unfair prejudice.

2. [72]

   Grounds 4 and 5 related to the directions given to the jury concerning the tendency evidence.

3. [73]

   Leave to appeal was sought in respect of grounds 3 and 4 under s 5(1)(b) of the Criminal Appeal Act but it was contended that leave under r 4.15 of the Criminal Appeal Rules was not required. Leave to appeal under r 4.15 was sought in respect of ground 5.

4. [74]

   The applicant observed, in relation to the asserted tendencies in the tendency notice served on 17 July 2022, that no evidence was adduced by the Crown about the applicant’s treatment of patients other than the complainants during the period between 2013 and 2019.

5. [75]

   After referring to the principles to be applied in determining the admissibility of tendency evidence under ss 97 and 101 of the Evidence Act, the applicant submitted that the only tendency asserted was to act in a particular way which was so broad and general that the evidence and common features relied on by the Crown did not in fact establish the asserted tendency and did not have significant probative value for the purpose of determining issues at the trial.

6. [76]

   Of the six common features relied on by the Crown it was submitted that five were so general that they could not support the tendency in that they referred to common features of osteopathic treatment for back pain, including the removal of underwear and massaging in and around the upper thigh. Rather than being tendency evidence, it was submitted that it in effect invited, if anything, coincidence reasoning but this was not the basis relied on by the Crown.

7. [77]

   It was also submitted that Abadee DCJ misstated the defence’s position on what was in issue for the purposes of the trial, holding that where the applicant touched each complainant was a live issue. It was contended that his Honour did not then limit the tendency evidence to that issue but allowed it to be used in relation to whether the conduct was sexually inappropriate or indecent.

8. [78]

   The applicant submitted, in relation to whether the probative value outweighed unfair prejudice, that where the main issue at trial was whether the touching was sexual or for a medical purpose the cross admissibility of the complainants’ evidence “would lead to overwhelmingly unfair persuasion that all the touching was sexual”. In this regard, it was also said that the probative value was also outweighed by the unfair prejudice because of the terms of the tendency which included that the touching was “indecent”.

9. [79]

   The submission was made that, despite Abadee DCJ noting that the relevant differences included greater potential for prejudice, his Honour ruled that the evidence was cross-admissible notwithstanding that the conduct the subject of count 1 occurred 6 years earlier with no evidence of a continued tendency and the conduct the subject of count 2 was vastly different from the conduct in the other counts.

10. [80]

    The Crown submitted, after referring to the applicable principles, that the relevant facts in issue were correctly identified by Abadee DCJ and the detail and the descriptions given by each of the complainants of the touching was in dispute, including but not limited to the conduct alleged in respect of count 2.

11. [81]

    On the question of significant probative value, the Crown submitted that the tendency evidence, if accepted, was influential in proving that the applicant had a tendency to be inappropriate in a sexual way with female patients who were attending appointments with him in his capacity as an osteopath in that the evidence included that he pulled down the underwear of four female patients below the buttocks or completely removed it, without request or explanation, made sexual or flirtatious comments and touched them close to or inside the vagina. It was noted that there was no evidence that the removal of a patient’s underwear was required for any therapeutic osteopathic purpose.

12. [82]

    The fact that count 2 concerned touching inside the vagina as opposed to near the vagina was submitted by the Crown not to be a significant difference, because tendency evidence did not need to establish directly all elements of an offence charged, or be the same conduct as charged if the asserted tendency would make any of the relevant facts in respect of a count more likely. The Crown then identified what it contended were the common features.

13. [83]

    It was submitted that it was not correct that, because the applicant’s treatment of the complainants for a therapeutic purpose might mean touching within 2-3 centimetres of the genitals, that the tendency evidence therefore added nothing beyond general relevance. The removal of underwear without warning, the flirtatious or sexual comments at about the relevant times and the nature of the touching were said to be strongly supportive of the existence of the asserted tendency and, in turn, strongly supported the proof of the relevant facts in issue.

14. [84]

    The Crown also submitted that tendency evidence could have significant probative value where, as in this case, a fact in issue was the reasonable possibility that one complainant had misconstrued innocent conduct.

15. [85]

    In relation to the fact that the conduct the subject of count 1 was alleged to have occurred approximately six years prior to the conduct the subject of counts 2, 3 and 4, the Crown submitted that this did not preclude the evidence of the count 1 conduct having significant probative value.

16. [86]

    As to whether any danger of unfair prejudice was outweighed by the probative value of the tendency evidence, the Crown submitted the unfair prejudice identified by the applicant, that if the jury heard evidence from multiple complainants regarding their state of mind would deflect the jury from their proper task, would not be likely to arise in the present case. Further, it was said in effect that proper directions to the jury would ensure that such unfair prejudice would not arise. It was also contended that the difference in the nature of the conduct alleged in count 2 would not lead to unfair prejudice by misuse of that evidence.

17. [87]

    Finally it was submitted that even if there were some residual risk of unfair prejudice it was outweighed by the significant probative value of the tendency evidence. In all the circumstances, the Crown’s position was that the tendency evidence was correctly admitted.

18. [88]

    It was not in dispute that, in considering whether Abadee DCJ erred in concluding that the evidence of the complainants was admissible as tendency evidence, this Court is to apply the “correctness standard”. I accept that this is so and that the Court is to determine for itself the correct outcome while making due allowance for such “advantages” as may have been enjoyed by the judge who conducted the hearing: Moore (a pseudonym) v The King [2024] HCA 30 at [14] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ); 98 ALJR 1119; The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

19. [89]

    Furthermore, the applicant accepted that the evidence relied on by the Crown for the purposes of the application before Abadee DCJ and relevant circumstances at the time of his Honour’s ruling were not so significantly different from the evidence and circumstances at trial as to render consideration of his Honour’s ruling inutile or inappropriate as might in some situations be the case: [15] see the discussion by Dhanji J in New v The King [2025] NSWCCA 32 at [186]-[204].

20. [90]

    To be admissible as tendency evidence in a case such as the present, evidence must satisfy both ss 97 and 101 of the Evidence Act. Those sections provide relevantly for present purposes as follows:

21. [91]

    There was also no substantial dispute as to the applicable principles in relation to tendency evidence and they can be briefly stated. In the present case, since notice under s 97(1)(a) had been given, the first issue to be determined is whether that tendency evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value under s 97(1)(b). Assessment of the probative value of evidence requires that the possible use to which the evidence might be put be taken at its highest, which assumes that the evidence is reliable and credible: TL v The King (2022) 275 CLR 83; [2022] HCA 35 (TL) at [28] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ) and the authorities there cited.

22. [92]

    For evidence to have “significant probative value”, it must be “important” or “of consequence” to the assessment of the probability of the existence of a fact in issue and it is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged: TL at [28].

23. [93]

    The High Court in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 observed at [41] (Kiefel CJ, Bell, Keane and Edelman JJ) that the assessment of whether tendency evidence has significant probative value in relation to each relevant count involves consideration of two interrelated but separate matters:

    1. (1)

       the extent to which the evidence supports the tendency; and

    2. (2)

       the extent to which the tendency makes more likely the facts making up the charged offence.

24. [94]

    Their Honours concluded in the same paragraph of Hughes:

25. [95]

    If the requirements of s 97(1)(a) and (b) of the Evidence Act are met, s 101(2) requires, in a criminal proceeding such as the present, that the Court consider whether the probative value of the tendency evidence about the applicant outweighs the danger of unfair prejudice to him. If not, then the tendency evidence is not to be admitted. In order to carry out the weighing exercise, a view must be formed of the degree of significance of the probative value of the tendency evidence and the degree of danger of unfair prejudice.

26. [96]

    Some of the factors which may affect the degree of significance of the probative value of the evidence sought to be adduced as tendency evidence were collected by Bell P in Taylor v R [2020] NSWCCA 355 at [122 xiv (a) to (i)]. These factors included most relevantly for present purposes:

    1. (1)

       the number of times the tendency asserted has manifested itself in the evidence sought to be adduced;

    2. (2)

       the similarity of the circumstances in which the other conduct occurred; and

    3. (3)

       the distance in time between the underlying evidence of the tendency and the charges in relation to which the evidence is sought to be adduced.

27. [97]

    As to the danger of unfair prejudice, tendency evidence is inherently prejudicial as it involves a reasoning process along the following lines “he did it before; he has a propensity to do this sort of thing; the likelihood is that he did it again on the occasion in issue”: Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 (Hughes) at [70] (Gageler J). In Hughes, Kiefel CJ, Bell, Keane and Edelman JJ also explained at [17]:

28. [98]

    The essential concept of the danger of unfair prejudice caused by the admission of tendency evidence is harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way: The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [73]( Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

29. [99]

    As noted above, in the present case there was no dispute that the tendency notice dated 12 July 2022 met the requirement in s 97(1)(a).

30. [100]

    The substance of the tendency evidence was identified in that notice as the evidence of each of the four complainants as set out in their statements.

31. [101]

    The tendencies asserted in that notice were:

32. [102]

    It can be observed that these tendencies are somewhat repetitive and are expressed in part in terms which are legal characterisations of the conduct or circumstances rather than identifying the conduct itself. This is somewhat unsatisfactory. Nonetheless in the present case, no point was taken at the hearing before Abadee DCJ or at the trial as to whether the framing of the tendencies in the tendency notice was defective. There was no ground of appeal which sought to challenge the tendency notice on the basis that the formulation of the tendencies was defective in some way.

33. [103]

    Further and in any event, Huggett DCJ in her tendency directions to the jury, effectively and without demur from the Crown or the defence, remedied some of the difficulties by recasting the tendency in the following way: [16]

34. [104]

    With the notice requirement in s 97(1)(a) having been met, the next question is whether the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value: s 97(1)(b) of the Evidence Act. In order to determine the probative value of the tendency evidence, it is essential to understand the facts or matters in issue in the proceedings. The applicant’s general position for the purposes of the pre-trial hearing, and also in effect at trial, was, as recorded by Abadee DCJ, that: [17]

35. [105]

    More specifically, the pertinent facts in issue were identified by the applicant in his written submissions before Abadee DCJ in the following terms:

36. [106]

    More generally, Abadee DCJ correctly identified the factual issues in the proceedings as including: [18]

37. [107]

    The “common features” identified in the tendency notice were said to include the following:

38. [108]

    The evidence which the Crown relied on as tendency evidence of each of the complainants included most relevantly evidence in their police statements that in the course of providing osteopathic services to the complainant in his treatment room:

    1. (1)

       the applicant removed the complainant’s underwear completely or pulled down her underwear below her buttocks, without asking for permission to do so or explaining why that was being done;

    2. (2)

       the applicant made flirtatious or sexual comments at about the time of the relevant conduct; and

    3. (3)

       the applicant massaged the complainant and in doing so his fingers went close or very close to, or inside, the complainant’s vagina.

39. [109]

    Taking the tendency evidence at its highest, I am of the view that it strongly supports proof of a tendency on the part of the applicant to be inappropriate in an indecent or sexual way with women in his care and that he acted on that tendency in February 2013 and in September and October 2019 by engaging in indecent or sexual contact with female patients who were being massaged by him in his treatment room. As the brief summary of the evidence above makes clear, in most regards the conduct was substantially similar in each case. There were, however, some differences.

40. [110]

    One difference to which attention was drawn was that, in one case, the applicant’s fingers went not only close or very close to the complainant’s vagina but also inside. Touching in the close vicinity of, or inside, the vagina is inherently sexual in nature and may be indecent and those characterisations are generally only likely to be inapplicable where there is informed consent and the touching is for a legitimate purpose consistent with the consent obtained. In my opinion, the difference between the conduct the subject of count 2 and the other counts is a difference as to the seriousness of conduct not a difference in the essential nature of the conduct.

41. [111]

    Another difference was that one incident occurred in 2013 and the remaining three incidents occurred six years later in 2019. In my view, this does not weaken the proof of the existence of the tendency to such an extent that it would not be found that the evidence relevantly lacked significant probative value. In McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 (McPhillamy), conduct a decade earlier in a different context was found to provide only weak support for the existence of a tendency on the part of the appellant in that case to act on a sexual interest in young teenage boys under his supervision. Kiefel CJ, Bell, Keane and Nettle JJ explained why that was so in the circumstances of that case, at [30]:

42. [112]

    In the present case, however, similar reasoning is not applicable for a number of reasons. First, the evidence said to establish the tendency in respect of each later incident was not limited to the evidence of the incident six years earlier. The other incidents in 2019 also provided support for the existence of that tendency both in 2019 and 2013 and vice versa. Secondly, the earlier and later incidents relied on in the present case had a greater degree of similarity than the earlier and later incidents relied on in McPhillamy and the nature of the asserted tendency was more specific in this case. Thirdly, although there is no evidence of similar conduct between 2013 and 2019, the other evidence to be adduced by the Crown included that JB, the complainant in respect of the 2013 incident, made a complaint later in 2013 to the Osteopathy Council of New South Wales and to the Health Care Complaints Commission (HCCC) concerning the applicant’s conduct in 2013. An inference is available that, as a result of that complaint, the applicant was careful not act on his tendency for a period and possibly until September 2019.

43. [113]

    Furthermore, in this context, the flirtatious or sexual nature of the comments made by the applicant at about the time of the touching indicated that it was likely that the touching involved a sexual or indecent element and was not done solely, if at all, for a legitimate therapeutic purpose. From the fact that the complainants’ underwear was removed completely or to below the buttocks without permission being sought or any explanation being given in each case, the inference was available that the applicant did not attempt to give a legitimate therapeutic justification for his conduct because there was none and he perceived that if consent was sought it might well be refused. In this way, the tendency evidence supported the conclusion that the touching was not only not done with the informed consent of the complainant but was also not merely proper osteopathic treatment.

44. [114]

    For all these reasons, I am satisfied that the tendency evidence, by itself or together with other evidence, strongly supported proof of the tendency and thus had significant probative value in establishing that the applicant had the asserted tendency and that Abadee DCJ was also correct so to conclude.

45. [115]

    As to the second question whether the tendency makes more likely the facts making up the charged offences, the elements of the offences charged which were relevantly in issue included: (a) where precisely the complainants were touched; (b) whether the touching in each case was relevantly indecent or sexual in nature or was undertaken for a proper osteopathic purpose; (c) whether any touching that did occur was misinterpreted by the complainants; and, (d) whether the complainants were under the authority of the applicant.

46. [116]

    In my view, the tendency evidence taken at its highest, by itself and in combination with the other evidence to be adduced by the Crown, would be influential or important in establishing that each complainant was touched very close to or inside the vagina. For the reasons explained above, the fact that the evidence of one incident involved digital penetration of the vagina did not detract from its probative value in respect of other incidents where the touching was only said to be close or very close to the vagina and vice versa. The difference in the area touched was only a matter of degree rather than being a relevantly different form of conduct.

47. [117]

    Furthermore, the tendency evidence as to the touching, the comments made at about that time and the removal of underwear without explanation or consent and the tendency thereby established would also make more likely to a significant extent that the touching was done indecently or for a sexual purpose and not solely or only as part of proper osteopathic treatment, also for essentially the same reasons as set out above.

48. [118]

    The tendency evidence as to the location of the touching and circumstances of the incidents also had significant probative value in relation to the issue of whether the complainants each misinterpreted what occurred. It made it more likely that there was no misinterpretation. In addition, the evidence supported the finding that the relevant incident occurred when each complainant was receiving treatment from and thus under the authority of the applicant at the relevant time.

49. [119]

    In this case, there was significant similarity between the conduct and circumstances evidencing the tendency and each relevant offence charged. In this situation, the tendency asserted was not, given the matters identified above, so general as to reduce its impact on the strength of the inferential mode of reasoning involved in relying on tendency evidence.

50. [120]

    In short, in my view, the tendency evidence did have significant probative value in that, accepted at its highest, it would make more likely to a significant extent that relevant facts in issue were established. Accordingly, the requirement in s 97(1)(b) that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value was satisfied in the present case. There was no error in Abadee DCJ reaching his same conclusion.

51. [121]

    The requirements in s 97(1) of the Evidence Act having been satisfied, it is necessary to turn to consider whether the probative value of the tendency evidence in the present case outweighed the danger of unfair prejudice to the applicant, as required by s 101(2) of the Evidence Act.

52. [122]

    In considering the degree of significance of the probative value of the tendency evidence, I have taken into account that the tendency asserted has manifested itself four times with substantial similarity in circumstances and generally within a short time frame of two months, except for the 2013 incident. The evidence of JB’s complaints to the Osteopathy Council and the HCCC, however, provides at least a potential explanation for the absence of further incidents for six years until 2019. Thus, the apparent hiatus in similar conduct between 2013 and 2019 does not, in my view, significantly weaken the probative value of the tendency.

53. [123]

    Having regard to the nature of the tendency evidence in the context of other evidence adduced by the Crown and the matters in issue, in my assessment the tendency evidence has considerable probative value.

54. [124]

    As to the danger of unfair prejudice, it does not appear to me that there is a substantial risk that the jury would use the tendency evidence improperly in some unfair way. Given the nature of the alleged offending, the issues at trial including whether any touching that did occur was only such as was proper osteopathic treatment, the addresses of counsel and the directions given in the summing up, the jury would not be likely to reason unfairly by not considering independently whether the conduct in respect of each charge had a proper osteopathic purpose and was not sexual or indecent in the circumstances. Similarly, there was also unlikely to be a substantial risk that the jury would give the tendency evidence disproportionate or undue weight. The tendency evidence was not so complex as to be confusing or distracting. Nor did it involve the applicant being required to answer a multiplicity, or indeed any instances, of uncharged conduct. Although the evidence included the complainant’s reactions to what occurred as part of the descriptions of the conduct, this was relevant to the issue of whether the complainant in each particular case misunderstood what occurred. The nature of that evidence was not such as to lead to the significant risk that the jury would be overwhelmed into concluding that all the touching was sexual or indecent in nature without due and independent consideration of each incident. Nor would it be likely to result in the tainting of the jury’s consideration of whether the elements of each offence charged had been proved beyond reasonable doubt, given the directions on that matter to be given in the summing up.

55. [125]

    Accordingly, when the probative value of the evidence is weighed against the danger of unfair prejudice, in my view, the probative value outweighs the danger of unfair prejudice and the requirement in s 101(2) is satisfied. Abadee DCJ also reached this conclusion and did not err in so doing.

56. [126]

    For all these reasons, the evidence in respect of each count was cross admissible as tendency evidence in respect of each other count and there was no error in Abadee DCJ’s ruling in that regard, as contended under ground 3. Consequently, there was also no error in the conclusion that the application for separate trials should consequently be dismissed, as also contended under ground 3. Since the ground was arguable and was fully argued, I would grant leave to appeal on ground 3 under s 5(1)(b) of the Criminal Appeal Act but would dismiss the appeal on that ground.

57. [127]

    As noted above, both grounds 4 and 5 related to the directions given by the trial judge in relation to tendency evidence but the issues raised are different and it is convenient to deal with them separately.

58. [128]

    Ground 4 appeared to be intended to deal with the situation where there was no error found in the ruling by Abadee DCJ because of the matters in issue at that time but, because the matters in issue at the trial had changed, the tendency evidence concerning other counts should not then have been admitted in respect of each count in question. Ground 4 involved contentions that:

    1. (1)

       the evidence at trial demonstrated that the applicant’s acts, other than the penetration in count 2, were not in dispute and the only real dispute was as to the “ambit of proper treatment”;

    2. (2)

       the asserted tendency would have little if any probative value in respect of the “ambit of proper treatment” issue; and

    3. (3)

       the asserted tendency was otherwise highly prejudicial.

59. [129]

    It was submitted by the applicant that, in these circumstances, the tendency evidence that had been admitted in the trial was no longer significantly probative, and thus putting it to the jury as tendency evidence amounted to a miscarriage of justice, particularly when it was left to the jury as admissible for all purposes on all counts.

60. [130]

    The applicant then submitted that this Court should hold the evidence, particularly as it related to counts 1 and 2 was not cross-admissible and not admissible as tendency evidence. Consequently, it was said that leave to appeal (if necessary) should be granted, the appeal should be upheld and the convictions and sentences quashed.

61. [131]

    The Crown’s submissions in relation to this ground included that the applicant was bound by the conduct of the proceedings by his counsel at trial and, under s 130A of the Criminal Procedure Act 1986 (NSW), a pre-trial order such as that made by Abadee DCJ in the present case was binding on the trial judge unless, in the opinion of the trial judge, it would not be in the interests of justice for the order to be binding. Since the applicant did not seek to revisit Abadee DCJ’s order and no ruling or adjudication was given in that respect by the trial judge, it was submitted that Abadee DCJ’s order remained binding and, furthermore, there was no wrong decision on a question of law within the second limb of s 6(1) of the Criminal Appeal Act.

62. [132]

    It was further contended by the Crown that, since the pre-trial order remained binding, there was no error or miscarriage occasioned by the trial judge directing the jury on how the tendency evidence could be used and not used. Indeed, it was said that the trial judge was obliged to instruct the jury properly in that regard.

63. [133]

    Furthermore, the Crown submitted that it was not correct to say that by the conclusion of the evidence the touching alleged was not in issue. While it was accepted that it was not in issue that some touching occurred in each case, what continued to be denied was whether the applicant touched each of the complainants in particular ways after removing their underwear without consent, as described in their evidence.

64. [134]

    The Crown contended that the comments made by the trial judge concerning the tendency during discussion with counsel concerning appropriate directions did not amount to or involve any ruling under s 130A or otherwise. It was submitted that, since no complaint was raised at trial and no redirection was sought, r 4.15 was engaged and leave should be refused.

65. [135]

    The fundamental premises of the applicant’s ground 4 were that:

    1. (1)

       “the evidence at trial demonstrated that the acts, to the exception of the penetration in Count 2, were not in dispute”; and

    2. (2)

       “the issue was th[e] ambit of proper treatment”.

66. [136]

    Based on those premises, the argument was then, in substance, that the asserted tendency would have little, if any, probative value in relation to the issue of the “ambit of proper treatment” and was “otherwise highly prejudicial” and therefore should not have been allowed to be used as tendency evidence.

67. [137]

    On a review of the evidence at trial, I am not persuaded that by the end of that evidence the only or principal remaining factual matter in issue in the proceedings was the “ambit of proper treatment” or that the tendency evidence by that stage had little relevant probative value.

68. [138]

    As to the evidence in relation to count 1, although the applicant said that his hands came within a few centimetres of the vagina, he denied that he removed the complainant’s underwear without warning and without consent. [19] He also denied asking the complainant why she was so quiet but agreed that he had in effect said he would like to go to the beach with her by saying something like “where’s my invitation” but denied it was intended to be flirty or sexual. [20] In addition, the credibility of the applicant was seriously in issue, especially in relation to count 1, since the applicant acknowledged that in 2013 he lied to the HCCC concerning that incident. [21] The asserted tendency and the tendency evidence relating to the other counts, a short summary of which has been given above, had significant probative value in relation to those substantial factual issues remaining in respect of count 1 at the end of the evidence at trial.

69. [139]

    In relation to count 2, the applicant acknowledged that whether he had penetrated the complainant’s vagina as she said in her evidence was still in issue at the conclusion of the evidence. In addition and without attempting to be exhaustive, the applicant denied that he spread, or ran his finger along the “crack” of, NK’s buttocks and denied that at the relevant appointment he pulled her underwear down to her knees and that this was done without explanation or consent, contrary to NK’s evidence. [22] Thus, there was a number of substantial factual issues remaining in respect of count 2. Once again, in my view the asserted tendency and the tendency evidence relating to the other counts had significant probative value in relation to those and the other factual issues.

70. [140]

    Similar factual matters remained in issue in respect of counts 3 and 4 after the completion of evidence at the trial. In relation to those factual issues, the tendency evidence concerning the other counts therefore also still had significant probative value. It is not necessary to consider those matters in detail since the applicant was not found guilty on those counts and there is no appeal in respect of them.

71. [141]

    For these reasons, I do not accept that after the completion of the evidence at trial the only substantial remaining factual matter in issue was the “ambit of proper treatment”. There were many remaining factual issues, the resolution of which were important for the determination of whether the elements of the offences charged in counts 1 and 2 had been proved beyond reasonable doubt. The tendency evidence and the tendency still had considerable probative value in relation to those important issues and, in my assessment, that probative value outweighed the danger of unfair prejudice to the applicant, for the reasons that I have given above.

72. [142]

    There was no error in the trial judge’s approach to the admissibility or use of tendency evidence on the basis contended under ground 4.

73. [143]

    Moreover, trial counsel for the applicant did not make any application or seek any ruling in relation to the admission, or restriction on the use, of the tendency evidence at any point during the trial. No particular direction or redirection was sought concerning the use or non-use of that evidence for the purposes of tendency reasoning. In these circumstances, r 4.15 of the Criminal Appeal Rules is engaged. In addition, ground 4 did not involve a question of law alone. Consequently, leave was also required under s 5(1)(b) of the Criminal Appeal Act.

74. [144]

    In the circumstances and in the absence of any error as asserted under ground 4, I would refuse leave to appeal on this ground.

75. [145]

    The applicant’s last ground of appeal, ground 5, concerned whether the trial judge’s directions in relation to tendency evidence were confusing or erroneous such as to undermine the standard of proof and, consequently, led to there being a miscarriage of justice.

76. [146]

    It was accepted by the applicant, that leave under r 4.15 of the Criminal Appeal Rules was required in respect of this ground, since there had been no objection taken by trial counsel for the applicant to the directions nor was any redirection sought. Since this ground also did not involve a question of law alone, leave was also required under s 5(1)(b) of the Criminal Appeal Act.

77. [147]

    The applicant relied on recent judgments concerning tendency evidence directions including New v R [2025] NSWCCA 32 (New). The principal complaint concerning the trial judge’s tendency evidence directions was that, because the tendency was framed in such a way that it was in essence a tendency to commit the offences charged and the evidence to support the tendency was evidence relied on to establish the charged acts, the jury was likely to engage in a circular form of reasoning from considering whether the acts charged were proved to have occurred in order to establish the tendency and then reasoning from the tendency to conclude that the charged acts were proved beyond reasonable doubt. This form of reasoning was said to undermine the directions on the standard of proof being beyond reasonable doubt.

78. [148]

    The applicant also submitted, in effect, that because there was a break in the summing up before the tendency directions were given and the jury were not thereafter reminded of the standard of proof, the problem in relation to the standard of proof was exacerbated.

79. [149]

    The applicant also contended that the erroneous directions led to a miscarriage of justice in the present case because:

    1. (1)

       the tendency was expressed in general terms;

    2. (2)

       only a small number of acts, all of which were charged acts, were relied on to establish the tendency;

    3. (3)

       the tendency evidence involved different levels of seriousness and in one count a different act; and

    4. (4)

       the evidence to establish some of the charged acts was weak.

80. [150]

    It was also submitted that the directions were confusing in that they potentially encouraged the jury to analyse its own mental processes to determine a likelihood of the relevant event occurring rather than a satisfaction on the whole of the evidence that for each count the charged conduct was established beyond reasonable doubt.

81. [151]

    Finally, the applicant contended that, although no relevant application was made at trial, the error went to the heart of a fair trial according to law and occasioned a miscarriage of justice, so that leave to appeal should be granted.

82. [152]

    The Crown submitted that the fifth ground of appeal raised an error falling within the third limb of s 6(1) of the Criminal Appeal Act and referred to the principles dealing with miscarriage of justice by instructions to the jury. The Crown also summarised the principles derived from Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; 98 ALJR 644 (Roder) and JS v R [2022] NSWCCA 145 (JS).

83. [153]

    It was submitted that it did not follow from Roder or JS that in any circumstances where a jury is given a tendency direction that contains reference to anterior factual findings of whether charged conduct occurred, an error or miscarriage of justice will always have occurred. Rather the test is whether there is a real risk that the jury in the present trial, acting in conformity with the directions, would have been deflected from their fundamental task of determining whether the prosecution had proved the elements of the offences beyond reasonable doubt. The Crown noted that, although the tendency direction in the present case was given before the High Court decided Roder, it complied with the relevant guidance in Roder in many respects even though at two points in the tendency directions the trial judge did refer to the jury making findings about the conduct. It was submitted that these two references did not occasion a miscarriage of justice, when viewed in the context of the summing up as a whole. In particular, the Crown pointed to five aspects of the summing up which it was said led to the conclusion that there was no risk of the jury misunderstanding its role and the standard of proof in the present case.

84. [154]

    The Crown also noted the comments in JS and Roder concerning potentially circular reasoning and sought to distinguish the present case from New on a number of grounds. It was submitted that the result in the present case which included the jury being unable to reach a verdict on counts 3 and 4 stood starkly against the applicant’s contentions that the directions were confusing as to the onus of proof. Finally, it was said to be particularly relevant that trial counsel for the applicant raised no objection to the directions and submitted that the Court may consider this a strong indication that there was no realistic possibility or likelihood of the jury employing illegitimate reasoning, nor potential for unfairness to the applicant and that no miscarriage of justice was occasioned in this case.

85. [155]

    The principles which apply by virtue of s 161A of the Criminal Procedure Act 1986 (NSW) in relation to tendency evidence under s 97 of the Evidence Act and the relevant standard of proof of conduct relied on to support an asserted tendency have been recently confirmed by the High Court in Roder. The High Court noted that: [23]

    1. (1)

       s 161A(1) precludes a jury from being directed that “evidence needs to be proved beyond reasonable doubt to the extent that it is adduced as tendency evidence”;

    2. (2)

       s 161A(2) provides that, if the evidence is also adduced as evidence of an “element or essential fact of a charge”, the jury “may be directed that the evidence needs to be proved beyond reasonable doubt, but only to the extent that it is adduced as proof of the element or essential fact”; and

    3. (3)

       s 161A(3) relaxes the prohibition in s 161A(1), in the circumstances such as those contemplated by Shepherd v The Queen (1990) 170 CLR 573 at 585 (Dawson J); [1990] HCA 56, that is where there is a significant possibility that a jury will rely on an act or omission as being essential to its reasoning in reaching a finding of guilt, and evidence of the act or omission has been adduced as tendency evidence.

86. [156]

    In this context, the High Court rejected the contention that reliance on evidence of charged acts as tendency evidence involved circular reasoning. The Court held in Roder, at [27], citing this Court in Rassi v R [2023] NSWCCA 119 at [9]:

87. [157]

    Nonetheless, the High Court recognised that directions in relation to tendency evidence may have the potential to undermine the necessity for proof of each charge beyond reasonable doubt, on the basis referred to by this Court in JS, but accepted that this concern should be addressed by careful formulation of directions. [24]

88. [158]

    In Roder at [37], it was held in effect that, in circumstances where the prosecution relies on charged and uncharged acts to establish asserted tendencies, a single, separate tendency direction should be given which does not include the jury being directed or invited to make findings in respect of charged conduct for the purposes of considering whether any of the tendencies was established but rather the direction should:

    1. (1)

       Identify the evidence relied on to support the asserted tendencies;

    2. (2)

       Direct the jury to consider whether they are satisfied that any of the asserted tendencies is established; and

    3. (3)

       Advise the jury that, if any of the tendencies is established, that tendency can be used in considering whether it is more likely that the accused committed a relevant offence charged.

89. [159]

    In addition, the High Court expressly stated in that same paragraph that careful directions should be given to the jury as to the requisite onus and standard of proof as well as to the elements of the offences charged and the need for separate consideration of each charge.

90. [160]

    Although the High Court in Roder was dealing with directions in a Victorian matter which was governed by the Jury Directions Act 2015 (Vic), there is no reason to conclude that the High Court’s reasoning and approach in that case do not also apply in relation to directions to be given in respect of tendency evidence under s 97 of the Evidence Act, in light of s 161A of the Criminal Procedure Act. This is confirmed by the High Court’s adoption in Roder of the reasoning and approach of this Court in JS.

91. [161]

    It does not follow, however, from the principles and approach referred to in Roder and JS that every tendency direction which directs or invites the jury to make findings in respect of charged conduct for the purposes of considering whether any asserted tendency has been established is necessarily one which involves an error of law or leads to a miscarriage of justice. This was established in [44] of JS itself which was applied in Roder, and has subsequently been applied in Wardell v R [2025] NSWCCA 26 (Wardell) at [54] and [68] (Wright, Ierace and Rigg JJ) and New at [273]-[276] (Dhanji J with Mitchelmore JA agreeing).

92. [162]

    The applicant’s fifth ground of appeal appears to be based on there being a miscarriage of justice by directions to the jury, which falls within the third limb of s 6(1) of the Criminal Appeal Act. Nonetheless, even if the ground of appeal should rather be understood as involving a misdirection by the trial judge which amounts to a wrong decision on a question of law within the second limb, essentially the same principles apply. In Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62 (Huxley), Gordon, Steward and Gleeson JJ said, at [42]:

93. [163]

    The relevant principles referred to by their Honours included that there will be a miscarriage of justice as a result of the trial judge's directions to the jury if the directions deflected the jury's attention from the need to be persuaded beyond reasonable doubt of the accused's guilt before returning a verdict of guilty: Huxley at [40] citing Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44 at [46]. In determining whether there has been such a miscarriage, it is necessary to consider the whole of the judge's summing up to the jury. In Huxley at [41], it was held:

94. [164]

    Applying those principles and adopting the same approach as that of Basten AJA in JS at [44], it is necessary to consider the summing up of the trial judge in the present case as a whole to determine whether there was a significant risk that the necessity for proof of each charge beyond reasonable doubt was undermined or the direction was confusing so that the jury was deflected from their fundamental task of deciding whether the prosecution had proved the elements of each relevant charge beyond reasonable doubt.

95. [165]

    Huggett DCJ’s tendency direction was in the following terms; [25]

96. [166]

    In the underlined parts of the tendency direction, the trial judge in effect directed or invited the jury to consider whether they were satisfied that some or all of the conduct which was the subject of the tendency evidence occurred. This was not in accordance with the preferred approach set out in Roder at [37] and JS at [43]. Nonetheless, other parts of the tendency direction focused the jury’s attention on whether the evidence established the tendency rather than the conduct, consistent with the preferred approach in Roder and JS, including:

    1. (1)

       “The Crown argues you would be satisfied the accused had this tendency because you would accept each complainants’ evidence about how the accused behaved in the relevant appointments including what he said in those appointments”; and

    2. (2)

       “If you find that evidence does establish that the accused had the tendency the Crown alleges … then you can use that finding in considering whether it is more likely that he committed the specific offences with which he is charged”.

97. [167]

    In addition, the tendency direction itself included specific directions which emphasised that, although the tendency evidence might establish the tendency, the tendency could not, by itself, establish the conduct the subject of any particular charge. These included:

    1. (1)

       “The question is whether the existence of the tendency alleged makes it more likely that he did conduct himself as the Crown alleges …. That is the only way the accused’s tendency … can be used by you” [26] ,

    2. (2)

       “If you accept the Crown's argument in relation to the accused having the tendency alleged and that it does make it more likely that he committed the offences alleged, proof as to his guilty [sic] would not automatically follow” [27] , and

    3. (3)

       “finding the accused had the tendency the Crown alleges would not be enough to prove his guilt”. [28]

98. [168]

    Similarly, the risk of the jury impermissibly reasoning that by finding the conduct and thus the tendency were established they could, without more, conclude that any of the conduct the subject of a charge was proved was minimised by the directions that:

    1. (1)

       “If you accept the Crown's argument in relation to the accused having the tendency alleged and that it does make it more likely that he committed the offences alleged … You would still have to consider in relation to each count whether the accused in fact acted in accordance with that tendency by committing the conduct alleged in each count” [29] and her Honour referred to the evidence that might indicate that the applicant apparently did not act in accordance with the tendency on many occasions:

    2. (2)

       “[Proof of the tendency] may assist the Crown to prove that he committed one, or some, or all of the offences charged, but it is not enough of itself. Ultimately, you must decide whether the specific offence with which the accused is being charged has been proved by the Crown. That decision must be based upon the evidence relevant to that charge, and particularly the evidence of the complainant named within that count”: [30] , and

    3. (3)

       “while establishing that the accused had the tendency alleged might assist the Crown to prove a charge, tendency reasoning can therefore only support the Crown case. It could not substitute for a complainant if you otherwise took the view the complainant's evidence was not sufficiently reliable to act upon.” [31]

99. [169]

    When the tendency direction is considered as a whole, it is unlikely that the jury would have been deflected from their proper task because the direction erroneously focused their attention on whether the tendency evidence established the conduct rather than the asserted tendency. In my view, the tendency direction adequately emphasised that the tendency evidence was relied on to establish the tendency asserted and, if the jury was satisfied that the tendency was established, this would not by itself establish any of the conduct in any of the counts.

100. [170]

     The other directions given by the trial judge as part of the summing up also strongly support the conclusion that the jury in the present case would not have been deflected from their task of determining whether the Crown had proved the elements of each of the charged offences beyond reasonable doubt or that the standard of proof of beyond reasonable doubt would have been effectively undermined. The trial judge gave appropriate and careful directions concerning the onus and standard of proof, the elements of the offences and the need for separate consideration of each count, in accordance with Roder at [37].

101. [171]

     In particular, her Honour’s summing up also included the following concerning the onus and standard of proof: [32]

102. [172]

     The summing up also included directions on the need to consider each count separately and to be satisfied of each element of each count beyond reasonable doubt as follows: [33]

103. [173]

     The trial judge also gave written and oral directions concerning the elements of each count and, in those regards, the summing up included: [34]

104. [174]

     The written directions as to the elements of each offence for each count, MFI 19, commenced:

105. [175]

     This point was also emphasised throughout the written and oral directions concerning the elements of each offence. By way of example, in relation to count 1, in the summing up the trial judge identified the relevant complainant, JB, and the general nature of the conduct alleged by the Crown and referred to where some of the evidence might be found. Her Honour’s oral directions then continued: [35]

106. [176]

     After dealing with the elements of the offences, the trial judge noted that the applicant had given evidence and summarised that evidence for the jury. Her Honour then gave a Liberato direction in relation to the applicant’s evidence. [36] After giving further directions which were not the subject of any challenge on this appeal, her Honour took a break which was intended to be “about 15 minutes”. [37] This short break did not, in my view, have any relevant impact on the adequacy of the summing up.

107. [177]

     When the jury returned, the trial judge continued the summing up dealing with complaint evidence and then gave the directions in relation to tendency reasoning which have been quoted in full above. The trial judge then completed the summing up by briefly summarising the main points from the addresses of counsel that had not already been referred to.

108. [178]

     When asked whether there was anything further that was required, trial counsel for the defence raised one matter, in the absence of the jury. [38] This did not concern the tendency direction but rather concerned whether, in relation to inferences, her Honour had directed the jury that “before an inference adverse to the accused could be drawn, they must be satisfied that it was the only rational inference that could be drawn in the circumstances”. There was some discussion in which counsel for the defence accepted what her Honour indicated she proposed to say to the jury in that regard. This led to the following additional direction being given: [39]

109. [179]

     The vice identified in JS and Roder which may result from a jury being directed or invited to find whether the tendency evidence of charged acts established that the conduct occurred (at a standard of proof less than beyond reasonable doubt) and to rely on that finding to prove the asserted tendency and then to rely on the tendency to prove that the charged acts occurred was that such directions had the potential to undermine the necessity for proof of each charge beyond reasonable doubt: Roder at [26], JS at [40].

110. [180]

     In my view, the careful directions given by the trial judge in her summing up, and especially the repeated emphasis on the need to prove each element of each offence beyond reasonable doubt, eliminated any potential for the necessity for proof of each charge beyond reasonable doubt to have been undermined in the present case. There was no significant prospect of the jury being deflected from their proper task of determining whether the applicant was guilty of each count beyond reasonable doubt. In these regards, the circumstances of the present case are similar to those in JS itself and Wardell, in which the same conclusion was reached.

111. [181]

     I am confirmed in this view by the fact that the jury did not convict the applicant on all counts. Bell CJ (with Stern JA and Button J agreeing) observed in Astill v R [2024] NSWCCA 118 at [60] and [61]:

112. [182]

     Similar observations apply in the present case; the fact that the jury was unable to reach verdicts in relation to counts 3 and 4 indicates that the jury did not treat the tendency evidence in an unthinking way or as effectively allowing them to apply a lesser standard of proof than beyond reasonable doubt in respect of each element of each offence charged.

113. [183]

     In addition, on my review of the tendency direction and of the summing up as a whole, they were not confusing or overly complicated.

114. [184]

     Finally, trial counsel for the applicant did not seek any redirection in relation to tendency evidence in the present case. This suggests that, in the context of the trial, there was no perception of a miscarriage of justice occasioned by the form of the tendency direction. A similar point was made in Astill at [62]. Nonetheless, in this regard, it should be borne in mind that the trial in the present case took place before the High Court’s judgment in Roder was delivered, even though the judgment in JS had been handed down more than a year before the trial.

115. [185]

     In light of the summing up read as a whole and in the context of the trial, in my view, there was no basis for concluding that the jury would have been deflected from their proper task of determining whether each of the elements of each offence had been proved by the Crown beyond reasonable doubt. Thus, there was no miscarriage of justice in the relevant sense explained in Huxley.

116. [186]

     In these circumstances, in my view, leave under r 4.15 of the Criminal Appeal Rules should be refused in respect of ground 5.

117. [187]

     Given the refusal of leave under r 4.15, it is unnecessary to consider the question of leave under s 5(1)(b) of the Criminal Appeal Act. Nonetheless, even if leave under s 5(1)(b) had been granted, for essentially the same reasons as those given above, I would have dismissed the appeal on ground 5.

Proposed orders

1. [188]

   Accordingly, I propose that the orders of the Court should be:

   1. (1)

      In respect of ground 1 to the extent that leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) is required, the applicant has leave to appeal.

   2. (2)

      In respect of grounds 2 and 4, leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) and r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) is refused.

   3. (3)

      In respect of ground 3, the applicant has leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).

   4. (4)

      In respect of ground 5, leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) is refused.

   5. (5)

      The appeal under grounds 1 and 3 is dismissed.

2. [189]

   SWEENEY J: I agree with Wright J.