Rassi v R

1. [1]

   BEECH-JONES CJ AT CL: I have had the opportunity to read the judgment of Hamill J in draft. I record that the delay between the making of orders on 29 March 2023 and the publication of these reasons was the result of the unavailability of other members of the Court, and not through any delay on the part of his Honour.

2. [2]

   Hamill J’s reasons in relation to ground 1 set out my reasons for joining in the Court’s orders on 29 March 2023. In relation to ground 2, subject to the following six matters, I agree with his Honour’s reasons.

3. [3]

   First, the applicant’s principal contention was that the direction given to the jury in respect of tendency reasoning was erroneous in that it permitted or invited the jury to engage in circular reasoning by directing the jury to consider whether the asserted tendency was established based on evidence adduced in support of the counts on the indictment and, if the tendency was established, using that tendency to determine whether the same counts were established. It was contended that the jury should have been instructed that, in determining whether the prosecution had established the accused’s guilt on any particular count beyond reasonable doubt, it should exclude from consideration so much of the tendency evidence relied on which was also direct evidence adduced in support of that particular count. A draft direction which the applicant contended gave effect to this submission was provided to the Court (see [106]) and included the following:

4. [4]

   Complex as it may be, this draft direction does not reflect the entirety of the applicant’s argument. During argument, Senior Counsel for the applicant contended, or at least conceded, that if, in considering count 2, the jury relied on an established tendency that was demonstrated by reference to the evidence adduced in support of count 4, then, when considering count 4, the jury could not rely on the evidence adduced to support count 2 as tendency evidence because its acceptance was in part predicated on the evidence adduced in support of count 4 as tendency evidence (see [97]; “Then you say you can also direct them, ‘And if you consider in count 1, if you considered count 4, you can't consider your conclusion on count 1 because you considered it on count 4’”; GAME: Yes …). If this logic is applied to the whole indictment, as it must be on the applicant’s case, then the only direction that could truly embody the applicant’s contention is a direction that excluded evidence of charged acts as evidence establishing a tendency unless the evidence was proven beyond reasonable doubt. However such a direction would be flatly inconsistent with s 161A of the Criminal Procedure Act 1986 (NSW). Both subsections 161A(2) and (3) assume that evidence can be “adduced as both tendency or coincidence evidence and as proof of an element or essential fact of a charge before a jury” and that it will not be necessary in every case or even most cases to direct the jury that the evidence needs to be proved beyond reasonable doubt to the extent that it supports the alleged tendency.

5. [5]

   Even if the applicant had not embraced the extension of his reasoning in the manner accepted in oral argument, his principal contention would still be inconsistent with s 161A. Nothing in s 161A (or the second reading materials concerning the introduction of that provision extracted in the judgment of Hamill J) warrants any implicit limitation on s 161A(2) so that it only countenances the evidence in question being adduced as proof of a tendency in relation to charges other than the charge in respect of which it is adduced to prove an element or essential fact before the jury. An acceptance of the applicant’s submission would mean that evidence could never be adduced as both tendency or coincidence evidence in respect of the proof of a charge and as proof of an element or essential fact of that same charge before the jury as contemplated by both s 161A(2) and 161A(3).

6. [6]

   Second, the applicant’s argument that using evidence that directly supports a charged count as tendency evidence necessarily invites circular reasoning falls away when regard is had to the nature of tendency evidence and that a tendency need not be established beyond reasonable doubt (save for the circumstances specified in s 161A(3)).

7. [7]

   In relation to the former, in JS v R [2022] NSWCCA 145 (“JS”) Basten AJA observed (at [43]):

8. [8]

   In this passage, Basten AJA refers to the jury being satisfied of the existence of the “tendency” and, if so, the “tendency” being relied on in proof of the charge. This reflects reasoning by which the existence of the tendency is treated as an intermediate fact in its own right in the reasoning process and not just some description of the evidence used to support it. The direction given by the trial judge in this case reflected this approach. Hence, her Honour told the jury that “[i]f you find the accused did have the state of mind and that he did act on it as nominated, then you can use that in considering whether it is more likely that he committed the specific offences with which he is charged” (see [87]). The reference to “that” in this direction is to the established tendency. In contrast, the applicant’s proposed direction refers to the jury using the “tendency evidence” as opposed to the tendency itself.

9. [9]

   So far as the onus of proof is concerned, it is not circular reasoning for the jury to first consider whether, based on all the evidence adduced in support of the tendency, including the evidence adduced in support of the counts on the indictment, the asserted tendency is established and then consider whether each of the counts on the indictment is proven beyond reasonable doubt including by reference to the asserted tendency if the jury considers it to be established. This may involve the jury reconsidering the evidence on each count but if it does it will be undertaking each consideration at different stages of its deliberations with a different onus of proof and for a different purpose.

10. [10]

    Third, the applicant sought to draw some support for its contention from the following passage from my judgment in Kanbut v R [2022] NSWCCA 259 (at [65] to [66]):

11. [11]

    These passages need to be considered in light of the flawed tendency that was relied on by the Crown and the subject of the directions to the jury in Kanbut. The applicant in Kanbut was charged with slavery offences in relation to two victims, X and Y. As the above passage indicates, the tendency was formulated in terms of the accused’s tendency to commit acts against X and Y and not vulnerable women generally. The evidence relied on to establish that tendency was the acts of the accused that formed the basis of the charges. A tendency formulated in those terms and relied on as such invites circular reasoning when the jury must determine whether offences against X and Y have been committed. This has no relevance here given the manner in which the tendency was framed by the Crown in this case. In any event, the statement in Kanbut at [66] does not address the significance of the difference between establishing the tendency and the standard of proof of the elements of a charge. The significance of that difference has been explained.

12. [12]

    Fourth, the result and reasoning in this case is consistent with JS and Gardiner v R [2023] NSWCCA 89 at [184] to [198] with which I respectfully agree. This case represents the third occasion on which this Court has rejected the applicant’s contention or a variation of it.

13. [13]

    Fifth, I express no view on the issue raised by Hamill J as to whether a direction of the kind contemplated by s 161A(3) should be given at any retrial.

14. [14]

    Sixth, no particular difficulty with any aspect of the Bench Book was demonstrated during this appeal.

15. [15]

    BUTTON J: With regard to ground 1, the reasons of Hamill J encapsulate my own for joining in the orders of the Court on 29 March 2023.

16. [16]

    I also agree with the analysis of Hamill J of ground 2, and with the additional analysis of Beech-Jones CJ at CL. I also express no view about the appropriateness of a “Shepherd Direction” at any retrial.

17. [17]

    In my respectful opinion, to be added to the reasons for rejecting the theses of senior counsel for the applicant is the fact that, ever since the High Court in Perry v The Queen (1982) 150 CLR 580; [1982] HCA 75 commenced to analyse regularly tendency and coincidence evidence, it has never to my knowledge posited the restrictions in jury reasoning for which the applicant contended.

18. [18]

    HAMILL J: Ferdinand Rassi (“the appellant”) appealed against his conviction in relation to four counts alleging sexual offending against a child, sometime between 1995 and 1998. Mr Rassi raised two grounds of appeal which were formulated as follows:

19. [19]

    At the end of the hearing on 29 March 2023, based on the Court’s unanimous conclusion that ground 1 must be upheld, orders were made allowing the appeal, quashing the convictions on counts 2 to 5 (there having been an acquittal on count 1 at trial) and ordering a re-trial. The matter was listed in the District Court for arraignment on 26 May 2023.

20. [20]

    On 3 April 2023, with the consent of the Director of Public Prosecutions, Mr Rassi was granted bail on the following conditions:

21. [21]

    The Court indicated that reasons for upholding ground 1 would be provided later and reserved its decision on the disposition of ground 2. These are my reasons for upholding ground 1 and joining in those orders. I will also provide my reasons for the conclusion that ground 2 should not be upheld in the circumstances of this case.

The evidence and issues at the trial

1. [22]

   These reasons do not require a lengthy summary of the evidence adduced at the trial.

2. [23]

   On Thursday 3 February 2022, the appellant was arraigned before Noman SC DCJ and a jury panel in the District Court sitting in Sydney. He pleaded not guilty to each of the five counts and a jury was empanelled. The trial proceeded until Wednesday 9 February 2022 when the prosecution closed its case. The following morning, Thursday 10 February 2022, the incident giving rise to ground 1 occurred. One juror was discharged, and the trial Judge ordered that the trial continue with a jury of eleven.

3. [24]

   Counsel’s addresses followed and the trial Judge commenced her summing up. The jury retired to consider its verdict at 10.17am on Friday 11 February 2022. The deliberations continued until Wednesday 16 February 2022. At 12.32pm the jury returned a verdict of not guilty in respect of count 1 and verdicts of guilty to counts 2, 3, 4 and 5.

4. [25]

   The complainant (“MM”) was born in mid-September 1985. The appellant was in a relationship with the complainant’s mother (“SL”) between 1992 and 1998. The couple lived together, along with SL’s two children, in a rented house in Beverly Hills from around September 1993 until they purchased a house together in Glendenning on 4 November 1994. They were married on 21 September 1996 by which time they were living at the house in Glendinning. The house was sold in April or May 1998. The dates of the Beverly Hills lease and the purchase and sale of the Glendenning house were relevant to the periods specified in the indictment presented against the appellant.

5. [26]

   In 2018 the complainant contacted police and alleged that the appellant sexually abused her when he was living with her family. She was aged between 8 and 12 years during that period. In addition to the allegations that formed the basis of the five counts on the indictment, the complainant also gave evidence of other incidents or behaviour that was relied on as tendency evidence.

6. [27]

   The prosecution case was primarily reliant on the evidence of the complainant although her mother, brother, LE (a friend of her mother) and DG (her brother’s girlfriend) also gave evidence at the trial and some of that evidence provided support for aspects of MM’s evidence. There were two statements of agreed facts, some evidence from the investigating police and expert evidence (the subject of one of the statements of agreed facts) concerning the behaviour of victims of child sexual assault.

7. [28]

   The appellant was charged with five offences, based on the following parts of the complainant’s allegations.

   1. (1)

      Count 1: On one occasion, when the family was living at Beverly Hills, MM was in her bedroom playing a video game. The appellant entered the room, sat behind the complainant, sniffed her neck and kissed her ears. Nobody else was in the room. The complainant said she was in shock and could not remember if the door to the bedroom was open or closed. The complainant turned 7 in September 1992 and the agreed facts suggested that the family lived in the Beverly Hills house until November 1994. She did not have a “specific recollection” of when this incident occurred except that it “was still in a cooler month”. She appeared to agree (“Mm-hmm”) that this was the “first physical affection that [she] had from [the appellant].”

   2. (2)

      Count 2: MM gave evidence of the family moving to Glendenning. The agreed facts suggested that this was in late 1994 when the complainant was 9 years old. MM said that one day her mother was sick, her brother was at a friend’s place and she and the appellant were alone in the loungeroom. She said the appellant put a pornographic movie on the TV. He unzipped his pants and pulled his “undies” down. He asked her to take out his penis and it became erect when she touched it. He had her move her hand up and down and stroke his penis. A neighbour knocked at the front door and the incident came to an end. She said that the “source” of the pornography was a video and she provided some details of the pornography. MM thought she was 11 years old at the time of this incident. She gave some evidence about seeing a clear liquid at the end of the appellant’s penis.

   3. (3)

      Count 3: One Saturday MM’s mother was at work and her brother was out with his friends. The appellant instructed the complainant to put on a particular outfit, which included a “boob tube”, and not to wear underpants. They went into her mother’s (which was also the appellant’s) bedroom. The appellant was naked, and she had to sit on top of him. He put his penis “in between [her] vagina and then was pulling and pushing [her]”.

   4. (4)

      Count 4: The incident continued with the appellant making MM lie on her back whereupon he started licking her vagina. The complainant believed she was 11 years old at the time of this incident.

   5. (5)

      Count 5: MM described another incident in the adults’ bedroom. The “whole household was home” and the appellant took her quickly into the bedroom. They were both clothed. He picked her up so her feet were on the bed and “was lifting me up and down so I was rubbing against his erect penis.”

8. [29]

   The prosecution relied on a number of uncharged acts allegedly committed by the appellant to prove that he had a tendency to have a sexual interest in the complainant and to act on that sexual interest. The uncharged acts included:

   1. (1)

      The appellant gave the complainant “bear hugs”, which involved the appellant hugging the complainant tightly and moving her up and down his body, so that she felt his erect penis. He would either be fully clothed or just wearing his underpants.

   2. (2)

      On several occasions the appellant was alone with the complainant in his bed, and at times he would give her “bear hugs” in his bed.

   3. (3)

      The appellant would enter the complainant’s room at night, stand close to her bed and use her hairbrush to brush his hair.

   4. (4)

      When shopping with the complainant, the appellant told her that she looked “so beautiful” which made the complainant feel uncomfortable.

   5. (5)

      The appellant entered the bathroom while the complainant was showering, stood there and whispered her name.

   6. (6)

      The appellant told the complainant “I wish that was my penis” when he saw her rubbing a pole when they were travelling on a bus.

   7. (7)

      The appellant begged the complainant to stay with him, while the complainant’s mother was packing up her things and planning to leave the house in Glendenning.

9. [30]

   There was evidence that MM complained to LE that the appellant “was touching her inappropriately” during the period of, or shortly after, the alleged offences. There was also evidence from DG who said she saw the appellant cuddling MM on the lounge and that the complainant told her in 2015 that “he had done things to her” but did not elaborate. This was at the time the family was living at Glendenning.

10. [31]

    SL (the complainant’s mother) gave evidence capable of supporting some aspects of the complainant’s evidence. For example, she said that the complainant had worn “boob tubes” and that the appellant had a “habit of sometimes walking in when [the complainant] was showering.” She also said the appellant sometimes “bear hugged” the children and was affectionate towards MM. Shortly before leaving the appellant, she confronted him and accused him of “touching my daughter”. The appellant did not respond to the accusation. The appellant’s silence was put to the jury as an admission. However, at one stage in cross-examination, SL said the appellant denied the accusation.

11. [32]

    Some of the witnesses gave evidence to the effect that MM became sullen and disengaged during the period that the sexual abuse was allegedly occurring. On the evidence of the psychologist, that emotional response was consistent with the way victims of such abuse sometimes reacted.

12. [33]

    In summing up, the trial Judge identified three parts of the evidence that the prosecution relied on in support of the complainant’s account:

    1. (1)

       The complainant’s “change in demeanour and behaviour” when the acts were said to have occurred.

    2. (2)

       The contemporaneous complaints.

    3. (3)

       The appellant’s failure to deny the accusation when SL confronted him.

13. [34]

    The appellant did not testify or call evidence at the trial. His case was that he did not commit the acts alleged against him. The officer in charge of the police investigation agreed that Mr Rassi was an 82-year-old man who had “no prior criminal history at all for any sexual offences.”

14. [35]

    On 21 May 2020, the police put the allegations to the appellant in general terms and he denied that he had “done any such thing”.

Ground 1: The learned trial Judge’s refusal to discharge the jury on 10 February 2022 was erroneous and occasioned a miscarriage of justice

1. [36]

   On 1 February 2022, before the trial commenced, the appellant objected to evidence contained in a report provided by a psychologist Dr Jane Goodman-Delahunty. The evidence consisted of expert opinion concerning the behaviour of children who have been victims of sexual assault. Her Honour concluded that the evidence was, for the most part and subject to certain matters not being pressed by the Prosecutor, admissible. She delivered a written judgment on 3 February 2022, immediately before the jury was empanelled.

2. [37]

   The parties then reached agreement that the evidence could most conveniently be placed before the jury in the form of a statement of agreed facts. This document was tendered (Ex 15) on 9 February 2022 and the trial Judge gave the jury certain directions about the nature of the evidence. The Prosecutor provided 12 copies of Ex 15 and these were distributed to each individual juror. Unfortunately, in one instance, that is not all the individual jurors received.

3. [38]

   The following day, Thursday 10 February 2022, the trial Judge received a communication from the jury through the court officer that one juror had received a copy of the judgment on the admissibility of Dr Goodman-Delahunty’s evidence. The court officer informed the trial Judge and confirmed verbally in court that “only that juror read it and that juror did not discuss it with anyone else”.

4. [39]

   The trial Judge, with the agreement of counsel, determined that the individual juror should be discharged but that her Honour should first question the juror as to whether any of the remaining jurors had seen or read the document.

5. [40]

   The juror was affirmed and gave the following evidence:

6. [41]

   This evidence was not consistent with the initial indication to the court officer that the document had not been discussed with other jurors. Further, the juror initially gave evidence that no other juror had read the document, saying “they only read the first page”. However, when pressed as to whether any other juror saw “inside the document”, he said, “I cannot recall.”

7. [42]

   The juror was discharged. It is worth repeating the explanation the Judge provided to the juror:

8. [43]

   That decision, which involved the discretionary discharge of the individual juror pursuant to s 53B of the Jury Act 1977 (NSW), was correct.

9. [44]

   Before the juror gave evidence, the trial Judge expressed the opinion that:

10. [45]

    That approach was also correct at the time it was indicated. However, as has been seen, the juror’s responses were not consistent with the information apparently provided to the court officer.

11. [46]

    The parties then acquiesced with a process whereby certain questions would be addressed to the remaining jurors who would be invited to respond separately to those questions in writing. While there was some criticism of this process in the appellant’s written submissions, it was accepted at the hearing of the appeal that the procedure was open to the trial Judge. Accordingly, it is unnecessary to enter a discourse as to the various provisions of the Jury Act, and the powers of a trial judge at common law, to obtain information from the jury as to the extent to which the contents of the document had been discussed, seen or read by the other jurors. It is worth noting in passing that there are certain procedures provided for in the Jury Act which are, or may be, mandatory in certain circumstances. [1] However, the Jury Act does not purport to provide the only methods by which a trial judge can obtain information necessary for the proper discharge of their function to maintain the integrity of the trial.

12. [47]

    The remaining 11 jurors were brought into the courtroom and her Honour addressed them as follows:

13. [48]

    As anticipated by this direction, each juror was then provided with a questionnaire, and each wrote out their responses which were marked for identification (MFI 19). The following table sets out the individual responses to the five questions directed to the jurors:

14. [49]

    The responses were provided to the parties who made submissions as to the course the trial Judge should take.

15. [50]

    Counsel for the appellant raised several matters of concern in respect of the answers from the juror questionnaire. He emphasised Juror D’s response to question 4, which asserted that one of the jurors was reading the document and continued to do so even when Juror D “said to them several times not to read it”. He also referred to Juror B’s response to question 4, which referred to the discussion which led to the document being “[drawn] out” and the ensuing exchange in the jury room relating to “the discussion between Crown, Judge and Barrister on the inclusion of this evidence around Feb 1st.”

16. [51]

    He went on to identify “aspects of the judgment itself that causes some concern.” He submitted that the jury would know that the appellant tried to exclude the expert evidence and may have read about parts of the evidence, set out in the judgment, that were not pressed. Counsel observed that if paragraph [18] of the judgment was read, which was an argument by defence counsel set out by the trial Judge, then there was a risk that the jury would engage in impermissible tendency reasoning, because it would cause the jury to think there was a “lack of trust by counsel for the defendant in terms of how they will deal with the evidence”. He also raised concerns that the jury may treat the trial Judge’s assessment of the probative value of the expert evidence as indicating the Judge’s opinion on the importance of that evidence. Finally, defence counsel pointed out that one topic that the trial Judge had ruled admissible – referred to in paragraph [22(ix)] – was not included in the agreed facts ultimately tendered because the parties agreed that it was capable of misuse.

17. [52]

    Counsel said he was “loath[e] to raise the issue” because the trial was in its final stages and the “timing is quite frankly terrible”. Even so, he concluded:

18. [53]

    The prosecution submitted that “there is no need to discharge the remaining jurors”, saying that her Honour “should properly accept the information that has been obtained from the jurors in such a careful and considered fashion”. It was submitted there was nothing in the jurors’ notes “that would cause your Honour any concern that any prejudicial information has been considered or come to the knowledge of the juror’s individually or collectively”. The Prosecutor said that further inquiries could be made by examining “relevant” jurors on oath but that this was “not necessary given the manner that the inquiry was made.” It was also submitted that directions could cure any potential for prejudice.

19. [54]

    The trial Judge refused the “application to discharge [the] jury” and provided the following reasons for that decision:

20. [55]

    The eleven jurors returned to the courtroom and the trial Judge provided the following directions:

21. [56]

    The issue for this Court is not whether the trial Judge erred in deciding to proceed with 11 jurors. That decision having been made, the question is whether there was a miscarriage of justice or, put in different language, whether there was a material irregularity such that the appellant did not receive a fair trial according to law: see, for example, Haile v R [2022] NSWCCA 71 at [201] (Bellew J), citing Phan v R [2018] NSWCCA 225 (“Phan”) at [122] (Price J); see also Addo v R (2022) 108 NSWLR 522; [2022] NSWCCA 141 at [145] (Beech-Jones CJ at CL, Adamson and Bellew JJ), Watson v R [2022] NSWCCA 208 at [39]-[42] (Bell CJ, Price and Yehia JJ) and R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377 at [26]-[32]. Accordingly, the appeal is not strictly against the decision made by the trial Judge to continue with a jury of 11. However, the cases suggest, and parties to the appeal agreed, that the question is essentially the same.

22. [57]

    Once the individual juror was discharged, the trial Judge was faced with the binary choice provided in s 53C of the Jury Act:

23. [58]

    The word “risk” in s 53C is an important one for trial judges to consider when making difficult decisions, such as the one confronting Judge Noman SC.

24. [59]

    In Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52 (“Wu”), McHugh J stressed at [26] the importance of the fact that the provisions of the Jury Act required the trial Judge to undertake a “two stage process”. [2] His Honour said:

25. [60]

    His Honour, along with Kirby J (who eventually dissented in the result), also considered it problematic that the trial Judge in the case of Wu said more than once that “there is no magic in the number twelve”, a remark which ran contrary to the historical importance of that number comprising a jury. [4]

26. [61]

    I emphasise these statements by the High Court in Wu to draw attention to McHugh J’s observation at [28]:

27. [62]

    In that context and given what had happened and the content of answers to the questionnaire, her Honour’s reasons for deciding to continue with the trial were very brief. There was no engagement with the contradictions in the answers provided by the various jurors and no analysis of the matters raised by the defence counsel concerning the answers given by Jurors B and D to question 4. Those responses, if accepted, cast significant doubt on the answers provided by other jurors. To take three examples:

28. [63]

    I also raise the decision in Wu and the later introduced provision in s 53C to emphasise that, as counsel said during argument at the trial, this was not strictly an application to discharge of the jury. Rather, it was a decision whether to continue the trial based on the “opinion” of whether continuing “with the remaining jurors would give rise to the risk of a substantial miscarriage of justice.” In argument, and in the opening words of her Honour’s judgment, the application was described as an application to discharge the jury or an application that the remaining 11 jurors be discharged.

29. [64]

    In joining the orders made on 29 March 2023, I was satisfied that the continuation of the trial resulted in a miscarriage of justice and that the appellant did not have a fair trial according to law. I approached the matter in accordance with the authorities referred to at [56]. For example, in Phan, Price J referred at [130] to the High Court’s decision in Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 (“Crofts”):

30. [65]

    The responses by the jurors to the questionnaire left this Court in a position of uncertainty as to what was discussed in the jury room and what information the individual jurors received, because of the mistaken provision of the judgment to the juror who was discharged. There was clearly a discussion about the judgment in the jury room, in spite of the responses of four of the jurors, and at least some of the jurors had read parts of it. It will be recalled that Juror L said the judgment had “22 paragraphs” (it had 23) which suggests that juror made their way to the last page of the document. This is contrary to the discharged juror’s statement, under examination, that the non-discharged jurors had only seen the cover sheet. The conversation in the jury room, referred to by Juror B, concerned the discussion between the Judge and the lawyers about the “inclusion” of the expert evidence in the trial. This suggests that at least some, and possibly all, members of the jury were aware that the defence objected to the expert evidence and that the trial Judge had ruled that it would be “included”.

31. [66]

    Accepting Juror D’s responses, it is apparent that one of the jury members was reading the judgment and declined to stop doing so despite Juror D insisting they stop reading it. That juror was not identified and almost certainly should have been discharged pursuant to s 53B(b) or (d) of the Jury Act.

32. [67]

    Turning to the judgment which made its way into the jury room, the following matters had a capacity to cause prejudice to the appellant:

    1. (1)

       The fact that the appellant attempted to exclude the expert evidence from the jury’s consideration.

    2. (2)

       The trial Judge’s finding that the evidence was “of importance”.

    3. (3)

       Judge Noman SC’s related finding that the evidence could “substantially affect the assessment of the credibility of the complainant”.

    4. (4)

       The judgment referred to evidence that was “not pressed” by the applicant’s counsel.

    5. (5)

       The judgment referred to Dr Goodman-Delahunty’s opinion that:

    6. (6)

       The judgment also made reference to “child abuse victims” and “child victims”, expressions which may be apt to arouse prejudice in a lay juror.

33. [68]

    There were, of course, countervailing considerations. The trial was nearing its end and some of the witnesses may be required to give evidence a second time. Those kinds of considerations can be relevant, as the High Court made clear in both Wu (see [29]) and Crofts (see p 452). They are factors which will no doubt weigh heavily on a trial judge who may feel under pressure to press on in a busy trial court like the District Court of New South Wales. However, such considerations will rarely prevail in a case like this, where the jury was exposed to material it should not have seen. This Court is then called upon to address the question of whether there was a risk of miscarriage and whether the appellant was convicted following a trial according to law.

34. [69]

    I also considered the directions provided to the jury by Judge Noman SC and whether those directions were capable of mitigating the risk of miscarriage.

35. [70]

    In the circumstances, I was not satisfied that the directions – as clear and forceful as they were – could address the potential for prejudice. There are limits to the axiom that jurors follow and obey the directions provided by a trial judge.

36. [71]

    For those reasons, I agreed with the other members of the Court that ground 1 must be upheld at the conclusion of the hearing and joined in the orders made that day as well as the subsequent grant of conditional bail pending any re-trial.

Ground 2: The learned trial judge’s directions on tendency evidence were erroneous and occasioned a miscarriage of justice

1. [72]

   Resolution of the second ground of appeal involves consideration of the directions that should be provided to a jury where the prosecution relies on tendency evidence, especially when it seeks to establish the relevant tendency by reference to evidence tendered in proof of the counts on the indictment as well as evidence of uncharged acts of less seriousness. The issues ventilated on the appeal were not raised at the trial. There was no complaint about the tendency directions provided to the jury. The ground raises questions about the correct approach to s 161A of the Criminal Procedure Act 1986 (NSW) and the written submissions questioned the correctness of the decision in JS v R [2022] NSWCCA 145 (“JS v R”). Section 161A was not referred to at the trial and the judgment in JS v R had not been delivered when her Honour summed up to the jury. Because the issue was not discussed at the trial, it is not known whether Judge Noman SC was guided by s 161A.

2. [73]

   Trial judges must formulate careful directions in cases where the prosecution relies on tendency evidence. The directions must be fashioned to address the particular circumstances of the case. While the Criminal Trial Courts Bench Book (“Bench Book”) provides important guidance for trial judges, the directions must encapsulate the issues and potential dangers of misuse which might arise in an individual case.

3. [74]

   Directions must guard against the improper use of tendency evidence and the potential for prejudice which is inherent in such evidence. The inherently prejudicial nature of tendency evidence was discussed by Bell P (as the Chief Justice then was) in Taylor v The Queen [2020] NSWCCA 355 at [122]. [5] His Honour referred to R v SK [2011] NSWCCA 292 at [34], RH v The Queen (2014) 241 A Crim R 1; [2014] NSWCCA 71 at [169] and cited the following passage from the judgment of Gageler J in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [71]–[74] (“Hughes”): [6]

4. [75]

   To similar effect were the observations of Kiefel CJ, Bell, Keane and Edelman JJ in Hughes at [17]:

5. [76]

   I referred to the above passage in BRC v R (2020) 284 A Crim R 124; [2020] NSWCCA 176 at [101] and stressed the need for a trial judge to “warn the jury against the misuse of [tendency] evidence based on an emotional or prejudiced reaction to [it]”.

6. [77]

   The circumstances of the present case, in which MM was the sole complainant and the acts relied upon to prove the asserted tendency included those forming the basis of counts 1–5, made it particularly important for the directions to be clear and precise. In BRC v R, I said at [102]–[103]:

7. [78]

   With recent developments in the case law, and the introduction of s 161A of the Criminal Procedure Act, directions must also guard against the improper use of tendency evidence and ensure that the jury understands the onus and standard of proof. The directions must protect the accused against the risk that the jury may adopt a less rigorous standard of proof in relation to the charged offences.

8. [79]

   Where, as it was here, parts of the tendency case involved allegations of less seriousness than the charged offences and where, as was mostly the case here, the tendency evidence comes from the same witness, the directions must address those circumstances and caution the jury against placing undue weight on the evidence.

9. [80]

   As Senior Counsel for the appellant acknowledged, this is not always an easy task. Without abrogating the responsibility of the trial judge, those appearing for the parties should provide the judge with assistance as to the directions which are appropriate to the peculiar circumstances of the individual trial.

10. [81]

    The prosecution served a tendency notice, dated 23 November 2021, pursuant to s 97(1)(b) of the Evidence Act 1995 (NSW). Paragraph 4 identified the tendency that the Prosecutor sought to establish:

11. [82]

    As the appellant submitted, the second of those tendencies (the “preparedness to act on” his sexual interest) had far greater probative value to the issues of whether the counts on the indictment were committed.

12. [83]

    Paragraphs 2-3 of the tendency notice set out the evidence upon which the prosecution relied to establish the tendency:

13. [84]

    A table at the end of the notice set out the evidence again and identified the parts of the complainant’s statements relied on in support of these allegations and distinguished the counts on the indictment from the uncharged acts:

14. [85]

    No objection was taken to the evidence or to the prosecution relying on tendency evidence. The complainant gave evidence generally in accordance with the evidence identified in the notice. In relation to some of the uncharged acts there was evidence from other witnesses that had a capacity to provide some support for the complainant’s allegations.

15. [86]

    In advance of the summing up, the tendency notice was marked for identification (MFI 13) and a further table provided references to the transcript of evidence given at the trial (MFI 15).

16. [87]

    The jury were given the following directions during the summing up:

17. [88]

    No objection was taken to these directions at the trial. There were discussions in advance of the summing up, during which the trial Judge was provided with the tendency notice and confirmed with counsel that there was no objection to the use of both charged and uncharged acts in proof of the tendency. Counsel said he understood both were “included on the Bauer basis, essentially”. [7] Section 161A of the Criminal Procedure Act was not raised by either counsel. As I have said, it is unclear whether the directions formulated by Judge Noman SC were guided by the provision in s 161A.

18. [89]

    The jury asked for the tendency evidence direction to be “redeliver[ed]”. Her Honour provided a slightly shortened version of the direction upon that request.

19. [90]

    The main complaint made on appeal is that the directions invited a circular process of reasoning. Perhaps more precisely, the argument is that the directions may have led the jury to convict the appellant on counts 2-5 by adopting a standard of proof less onerous than proof beyond reasonable doubt. The submission is that this possibility arose because the jury was invited to use the facts relating to those counts as part of the tendency case and directed that those matters need not be established beyond reasonable doubt.

20. [91]

    An anterior complaint is to the effect that the directions went beyond the scope of the tendency notice. As I understood the argument, it is submitted that there was a “problem” because (in some instances) the same incident was used to support a tendency to do things of much less seriousness and also to support the more serious allegations that comprised a charge in the indictment. The argument is recorded in the transcript of the appeal. [8] I am unable to accept this part of the argument. The trial Judge put the tendency case and the incidents upon which it was based, by reference to the notice, the evidence and the tables with which she was provided, without complaint by counsel appearing for the appellant at the trial. I will not address this aspect of the argument further except insofar as it feeds into the central complaint.

21. [92]

    Returning to the appellant’s key complaint, the argument was put in written submissions in the following way:

22. [93]

    It was submitted that, while the decision in The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 (“Bauer”) clarified that uncharged acts relied on in proof of a tendency case need not be proved beyond reasonable doubt, [9] the situation was different in relation to acts which formed the basis of a count on the indictment. It was submitted in the appellant’s written submissions at [85] that “no High Court authority holds that the jury need not be satisfied of a charged act beyond reasonable doubt before it can be used for tendency purposes”.

23. [94]

    It was further submitted that s 161A did not provide support for the directions given at the appellant’s trial and that “in order for the jury to be satisfied that the charged acts occurred, they had to be satisfied of particular essential facts … beyond reasonable doubt”. The appellant’s written submissions went on to say:

24. [95]

    A similar argument was advanced in JS v R. For the same reasons as were provided by Basten AJA (Dhanji J and I agreeing) the submission cannot be accepted.

25. [96]

    At the hearing of the appeal, the appellant emphasised that the complaint was not really about the standard of proof. Rather, it was a complaint concerning the use of evidence as tendency evidence, when the same evidence was also used to establish an element of one of the counts on the indictment. As it was put at the hearing of the appeal (noting that the initial reference is to the case of JS v R):

26. [97]

    The oral submissions concluded by reference to a hypothetical tendency case involving incidents (both charged and uncharged) of varying degrees of seriousness and directions that could be given to stop the jury from engaging in a process of circular reasoning:

27. [98]

    Section 161A of the Criminal Procedure Act provides:

28. [99]

    As the appellant submits, the provision requires the jury to be directed clearly as to the standard of proof where the evidence is led in proof of an element or where it is an essential part of the circumstantial reasoning process. I accept there is a risk of inviting an impermissible and circular process of reasoning when the evidence is led for both purposes and where different standards of proof apparently apply to the same evidence, depending on the purpose for which it is being used. I also accept that the problem may be particularly acute in cases where there is a cascading level of seriousness in the allegations being relied on as tendency evidence.

29. [100]

    However, the appellant’s submission that “the provision does not evince an intention to alter the standard of proof for offences which are also adduced for tendency purposes” must be considered in light of the final words of s 161A(2) (emphasis added) – “but only to the extent that it is adduced as proof of the element or essential fact”. This makes it clear that where evidence is adduced both as tendency evidence and as proof of an element, the jury “must not be directed” (s 161A(1)) that it need be proved beyond reasonable doubt insofar as it is relied on as tendency evidence. However, it can be (and clearly must be) so directed “to the extent that it is adduced” as proof of an element of a count on the indictment: s 161A(2).

30. [101]

    The provision creates significant difficulties for trial judges in formulating directions which both (a) comply with the prohibition is s 161A(1) and (b) do not invite the jury to engage in an impermissible circular reasoning process or to apply a less rigorous standard of proof to the counts on the indictment. However, the terms of the section leave little room for doubt that the Parliament intended that the evidence adduced in proof of the counts on the indictment can also be used in proof of the tendency asserted and that, in the latter regard, it is not incumbent on the Prosecutor to establish the relevant event(s) beyond reasonable doubt.

31. [102]

    If there is any ambiguity in the provision, recourse may be had to secondary materials. If there is any doubt as to the propositions stated in the last two paragraphs, it is removed by reference to the italicised part of the following extract from the second reading speech: [10]

32. [103]

    The reference in this passage to evidence being “adduced to establish a dual purpose” and the latter emphasis on the requirement of proof beyond reasonable doubt to the criminal standard for the elements of the offence (and matters essential to proof of those elements) is reflected in the terms of s 161A(2). The evidence can be adduced for two distinct purposes and, when it is, the standard of proof is different depending on the purpose for which it is used.

33. [104]

    As I have said, there is substance in the appellant’s concerns about the possibility of the jury engaging in a form of circular reasoning, and the potential erosion of the standard of proof, when evidence is used both to prove tendency (not requiring proof beyond reasonable doubt) and to establish an element (requiring proof beyond reasonable doubt). This is particularly so where (as here) the evidence largely comes from the same source (generally, in cases of this kind, from the complainant). The concern is that the jury may make a finding about the conduct to some lesser standard, and then reason to a conclusion on the charges (beyond reasonable doubt) based on the finding made to the lesser standard.

34. [105]

    Against that, the process of tendency reasoning involves the tribunal of fact deciding whether the asserted tendency exists by reference to the whole of the evidence, considered together, including the charged and uncharged acts. This is consistent with the way circumstantial evidence works more generally.

35. [106]

    Framing directions requiring the jury to disregard parts of the evidence (that is, the acts giving rise to the charge under consideration), in deciding whether the tendency exists, may result in confusion and lead the jury to approach the tendency case in an erroneous manner. At the invitation of the Court, the appellant provided a proposed draft direction after the hearing:

36. [107]

    The respondent submitted that this direction “is inconsistent with that set out in the bench book” and referred to the Bench Book at [4-227]. The Court has said many times that the Bench Book should not be used in this way: see R v Hong [2009] NSWCCA 242 and the cases referred to by Spigelman CJ at [33]-[35]; see also the Foreword to the Bench Book itself.

37. [108]

    The Bench Book is often correct. It can be a useful tool for trial judges and for counsel conducting criminal trials. However, it should not be used as authority or precedent justifying a submission that a particular direction should, or should not, be provided in a given case. Replicating the words of the Bench Book has led trial judges into error more than once: see Hadchiti v R [2016] NSWCCA 63; Abdallah v R [2016] NSWCCA 275 at [73]; SB v R [2020] NSWCCA 207 at [127], [179]; [11] Hayne v R [2022] NSWCCA 11 at [18]-[35]. [12] The need for the Bench Book to be modified was discussed in BRC v R. In Beattie v The Queen [2021] NSWCCA 291 the Court said “[t]he fact that a direction is suggested in the Bench Book does not mean its use cannot give rise to a miscarriage of justice”. See also Ith v R [2012] NSWCCA 70 at [48]. One of the problems with reliance on the direction at [4-227] is that the proposed or draft direction does not contemplate the directions authorised by s 161A(3). This is not to criticise the Bench Book but to demonstrate again, as its Foreword says:

38. [109]

    The direction suggested by the appellant has the capacity to cure the vice of which he complains. However, it may also create confusion and requires the jury to make a finding (or findings) as to whether the alleged tendency exists on different bodies of evidence, depending on which count it is considering. This was one of the complaints made by the respondent in their supplementary submissions in reply to the appellant’s proposed direction.

39. [110]

    Another solution, in an appropriate case, is to give effect to the provision in s 161A(3) of the Criminal Procedure Act. That sub-section preserves what is often referred to as a “Shepherd direction”: Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 (“Shepherd”). As has been seen, the second reading speech specifically noted that the “reform” enacted by s 161A was “not intended to abrogate the Shepherd direction” in cases where there is a significant possibility that a jury will rely on that evidence as being essential in reaching a finding of guilt.

40. [111]

    Tendency evidence is a species of circumstantial evidence and Shepherd is a case about circumstantial reasoning. Shepherd arose because of a misunderstanding about the joint judgment of Gibbs CJ and Mason J (as his Honour was at the time) in Chamberlain v The Queen [No 2] (1984) 153 CLR 521; [1984] HCA 7. Shepherd confirms that, in a case based on circumstantial evidence, neither individual items of evidence nor “intermediate facts” need to be established beyond reasonable doubt. However, there is an exception where the evidence or facts represent “indispensable links in a chain of reasoning towards an inference of guilt”: Shepherd at 579 (Dawson J, Toohey and Gaudron JJ agreeing at 586; see also Mason CJ at 576). Such indispensable links must be proved beyond reasonable doubt and the jury should be so directed.

41. [112]

    Section 161A(3) preserves the requirement to provide such a direction. However, rather than leaving it to the trial Judge to identify and direct the jury as to which facts are “indispensable links”, the sub-section allows the direction to be given when there is a “significant possibility” that “the jury will rely on an act or omission as being essential to its reasoning”.

42. [113]

    In JS v R Basten AJA said at [39]:

43. [114]

    While I agreed with his Honour in that case, the terms of s 161A(3) demonstrate that there will be cases where a Shepherd direction will be appropriate and necessary. An example might be a case such as the present (which, as Senior Counsel acknowledged, is “actually different to JS”), [13] where the prosecution relies, in proof of the tendency, on uncharged acts and charged acts of varying degrees of seriousness. There may be “a significant possibility” that a jury which finds the appellant has a tendency to act on a sexual interest in a child in a less serious way (for example, by making inappropriate comments, walking into a bathroom, or rubbing themselves against them), is not persuaded that such a tendency supports a more serious allegation (such as sexual intercourse or cunnilingus). It may then be appropriate to provide a direction along the lines of set out in the final paragraph of the appellant’s suggested direction set out above at [106]. I note in passing that no submission was made to Judge Noman SC which ventured even close to a suggestion that a Shepherd direction – or a direction under s 161A(3) – was appropriate.

44. [115]

    I maintain my agreement generally with the judgment of Basten JA in JS v R, particularly the observation at [43]:

45. [116]

    These observations accord with the process of reasoning involved in a tendency case as it has been explained in previous cases: see, for example, IMM v The Queen (2016) 257 CLR 300 at 327; [2016] HCA 14 at [104] (Gageler J) and Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303 at [253], [360].

46. [117]

    Of course, the jury must also be directed – as occurred in the present case – that, in the end, the elements of each offence on the indictment must be established beyond reasonable doubt.

47. [118]

    Given the success of ground 1 and the absence of any arguments on this issue at the trial, resolution of this ground is somewhat academic.

48. [119]

    It may be, if the Director of Public Prosecutions decides to put the applicant to trial for a second time, that the trial judge would be persuaded to put the tendency directions somewhat differently or to include a direction under s 161A(3). The directions might include reference to the different degree of seriousness of some of the uncharged acts as compared to the charged acts.

49. [120]

    However, I am not persuaded that the tendency directions provided to the jury buy Judge Noman SC were wrong or, as the ground is framed, led to a miscarriage of justice.

50. [121]

    I do not accept the submission that the tendency directions provided to the jury were “incoherent”.

51. [122]

    Nor did the directions reverse the onus of proof or lead to a situation where the jury may have returned guilty verdicts on counts 2-5, based on a misunderstanding of the standard of proof relating to the charges. The directions were quite clear about the standard of proof attaching to each of the charges. While the section was not referred to at the trial, the directions complied with s 161A of the Criminal Procedure Act 1986.

52. [123]

    Insofar as the submission was pressed, I do not accept that JS v R was wrongly decided. I do accept that the circumstances were somewhat different, and that JS v R does not dictate the outcome of the present ground of appeal. The case highlights the need for directions to be guided by the factual circumstances of the case.

53. [124]

    Because of the importance of the issues raised, and the difficulties involved in directing juries in circumstances such as the present, I would grant leave to argue ground 2.

54. [125]

    However, in all of the circumstances, I would not uphold the ground in the circumstances of the case.