AR v R

1. [1]

   THE COURT: The applicant, AR, [1] seeks leave to appeal his convictions, pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), for three child sexual assault offences following a trial by jury in the District Court siting at Gosford, presided over by her Honour Judge Bright.

2. [2]

   The applicant was indicted on seven counts, relating to three incidents in the Crown case in respect of the same complainant, the first occurring on about 26 September 2020, the second between 24 September 2020 and 8 October 2020, and the third between 3 and 8 October 2020 (the three incidents). Each incident was the basis of a count contrary to s 66C(1) of the Crimes Act 1900 (NSW), namely, that he had sexual intercourse with a child between the ages of 10 to 14 (the sexual intercourse counts), and an alternative count contrary to s 66DB(a) of the Crimes Act, that he sexually touched a child between the ages of 10 to 16 (the alternative sexual touching counts). The last incident was the basis of an additional count, also contrary to s 66DB(a) (the sexual touching count).

3. [3]

   The trial commenced on 26 July 2022. The jury retired to consider its verdicts on 9 August 2022 and returned with their verdicts the following day. The applicant was convicted of two of the sexual intercourse counts and the sexual touching count. He was acquitted of the other counts. On 13 December 2022, he was sentenced to an aggregate term of imprisonment of 9 years and 6 months with a non-parole period of 4 years and 9 months.

4. [4]

   The applicant advances a single ground of appeal, with three sub-grounds, [2] impugning some aspects of the trial judge’s directions to the jury concerning tendency evidence:

5. [5]

   The appeal was filed out of time, thus requiring leave: r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Criminal Appeal Rules). That aspect of the application is supported by an affidavit by the applicant’s solicitor that was read without objection at the hearing, and which is to the effect that a notice of intention to appeal and an initial application for leave to appeal were filed in time. At a callover on 1 February 2024, junior counsel for the applicant appeared and sought to adjourn the matter, pending the hearing in the High Court of Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644 (Roder) and a special leave application in respect of JS v R [2022] NSWCCA 145, both of which concern issues that are germane to the issues raised by this appeal. Junior counsel was informed that the practice in such circumstances is to re-file after the matters are determined. Judgment in Roder was handed down on 17 April 2024 and special leave in JS was refused on 9 May 2024. The applicant re-filed his application on 14 June 2024. In those circumstances, we would grant leave to file the application for leave to appeal out of time, pursuant to r 3.5(5) of the Criminal Appeal Rules.

6. [6]

   All three sub-grounds rely on questions of mixed law and fact, thus requiring leave pursuant to s 5(1)(b) of the Criminal Appeal Act.

7. [7]

   Leave is also required, pursuant to r 4.15 of the Criminal Appeal Rules, in relation to sub-grounds 1(a) and 1(b)(i) and (ii), since no objection was taken to those aspects of the tendency direction by the applicant’s trial counsel (defence counsel). Although not expressly stated by the applicant, we proceed on the basis that, pursuant to s 6(1) of the Criminal Appeal Act, each of those sub-grounds contend a misdirection of law that occasioned a miscarriage of justice, and that in respect of all three sub-grounds, a substantial miscarriage of justice was said to be occasioned, so as to negate an application of the proviso in s 6(1), although ultimately the respondent did not rely upon the proviso.

The background to the Crown case

1. [8]

   At the time of the offences, the complainant was 10 years old and the applicant was aged 41. The applicant was in an occasional relationship with the complainant’s mother, whom we shall refer to as JW, from about April or May 2019. He resided in an apartment at West Gosford (the applicant’s residence) with two of his children, who were aged about 4 and 7. JW resided at Narara in a two-bedroom house (the Narara residence) with her two children; the complainant and a 13-year-old son. The complainant would spend alternate weeks with each of her parents. Occasionally, the applicant would stay overnight at the Narara residence, and sometimes he would drive the complainant to and from school and provide after school care. From June 2020, the applicant and the complainant commenced texting each other.

2. [9]

   The Crown case was that the three incidents occurred in the September/October 2020 school holidays. The last day of term was Friday 25 September. The complainant stayed with her father the first week, from Sunday 27 September until Sunday 4 October; with her mother the second week, from then until Sunday 11 October; and with her father the third week, from then until Sunday 18 October. JW gave evidence that, on that date, when the complainant arrived back at the Narara residence, she asked JW if she and the applicant were still together. JW told the complainant they were, and the complainant became upset, telling JW shortly afterwards that the applicant had “touched me inappropriately”.

3. [10]

   The Crown case in respect of the seven counts, briefly stated, was as follows.

4. [11]

   On the evening of Saturday 26 September 2020, which was the first weekend of the school holidays, the complainant had a sleepover at the applicant’s residence at West Gosford, with his two children. That evening, at a time when the applicant and the complainant were alone in the lounge room, the applicant put on a movie and sat on the lounge with her. She fell asleep on the lounge next to him. At some stage, she woke up and realised that the applicant was touching her on the inside and outside of her vagina.

5. [12]

   During the second week of the school holidays, the applicant was staying over at the Narara residence. At one point the applicant and the complainant were alone in the lounge room watching a movie. Her mother had gone to bed and her brother was in his room on a computer. The complainant was lying on the lounge with her head on the applicant’s lap. She fell asleep and when she woke up, she realised that the applicant’s hand was on the outside and inside of her vagina. She sat up and he removed his hand and placed it on her thigh. She told him she was going to bed and left the room.

6. [13]

   On another occasion during the same week (the complainant recalled it being about two or three days after the first Narara incident), the applicant was again at the Narara residence, watching a movie with the complainant. The complainant’s mother went to bed and the complainant fell asleep lying on the lounge with her head on a pillow that was next to the applicant. She was wearing tracksuit pants. When she woke up, she realised that the applicant had one of his hands inside her pants on her vagina, with fingers inside her vagina, and her right hand was over her head and on the outside of his clothes. The applicant had his hand on the top of her hand and was squeezing it. She could feel his penis. She stood up and as she did so, he withdrew his hand. She said she was tired and went to bed.

Summary of the counts and verdicts

1. [14]

   The counts relating to the three incidents, and the verdicts, were as follows:

Evidentiary matters

1. [15]

   Police conducted four recorded interviews with the complainant. Edited versions of each were in evidence.

2. [16]

   The first interview was on 20 October 2020, that is, two days after the complainant first made a complaint, to her mother (the first police interview). She gave an account of the two Narara incidents but did not mention the West Gosford incident. On 5 May 2021, that is, about six months later, she participated in a second police interview, in which police sought further detail about the Narara incidents, and about text messages between her and the applicant (the second police interview).

3. [17]

   The complainant first mentioned the West Gosford incident in her third police interview, which took place at the request of the complainant, on Friday 1 July 2022, a period of one year and nine months after her first complaint, and about three weeks before the date that the trial was set down to commence (the third police interview). In view of sub-ground 1(a), it is necessary to canvass in some detail this complaint to police concerning the West Gosford incident, her evidence as to how she came to remember it, and when she thought that it occurred.

4. [18]

   The complainant told police, at Q 28: “Um, over the past I think, I don’t know how long it’s been, a year … um, I’ve remembered another time that I believe he sexually assaulted me”. She then gave an account of the West Gosford incident:

5. [19]

   As to the sequence of the incidents, the complainant also said:

6. [20]

   She was asked if she had told anyone else about this incident. She said:

7. [21]

   In the complainant’s next and last police interview, on 18 July 2022 (the fourth police interview), which was the date that the trial was set down to commence, she was asked further questions about her clothing at the time of each incident. During that interview, the complainant maintained that the West Gosford incident was the last in time.

8. [22]

   The indictment on which the applicant was arraigned before the jury panel had multiple variations from that upon which he was arraigned when the trial date was fixed. A relevant change for the purposes of this appeal is that it had two additional ex officio counts arising from the West Gosford incident, as the first and second counts in time, occurring “about 26 September 2020”. Those two counts were approved by the Director of Public Prosecutions on 12 July 2022.

9. [23]

   In a pre-trial hearing on Monday 18 July 2022, defence counsel objected to the two counts arising from the West Gosford incident being the first two counts on the indictment. He submitted that they should be the last two counts, in accordance with the complainant’s account to police that they occurred after the two Narara incidents. The Crown submitted that the complainant’s account was equivocal as to the sequence, and the text messages established that the sleepover at West Gosford was on 26 September, so that the counts flowing from it should be the first on the indictment. Defence counsel did not seek any particular intervention by the trial judge and the trial proceeded with the indictment framed with the two counts based on the West Gosford incident as the first two in time.

10. [24]

    In his opening to the jury, defence counsel alerted the jury to the anticipated apparent conflict between the complainant’s account to police and the Crown’s case as to when the West Gosford incident allegedly occurred.

11. [25]

    During her evidence in chief the complainant was asked when the West Gosford incident occurred, and replied that she believed it was during the second week of the school holidays when she was at her mother’s house “because I don’t think it would have happened at my dad’s place. I don’t think he would have allowed that”. We understand the complainant to have meant by that answer that she did not believe that her father would have approved her sleeping over at the applicant’s residence.

12. [26]

    She was questioned in chief about her account of the dream, in the third police interview:

13. [27]

    In cross-examination, the complainant was reminded of answer 173 in the third police interview (on 1 July 2022), that she had remembered the West Gosford incident “a couple of days ago” after “a vivid dream”. She was asked:

14. [28]

    She was later taken to A180 of the third police interview:

15. [29]

    JW gave evidence of text messages she exchanged with the applicant on 26 and 27 September 2020 that were consistent with the complainant having had a sleepover at the applicant’s residence on the night of 26 September 2020. JW said that “close to the time she told me about the other stuff”, she asked the complainant if anything happened on the sleepover (that is, when she spent a night at the applicant’s residence). She said the complainant replied: “I don’t think so”. She believed that she asked the complainant that question more than once.

16. [30]

    The tendency notice, dated 13 July 2022, that is, between the third and fourth police interviews and five days before the trial was set to commence, particularised the alleged tendency in the following terms:

17. [31]

    The tendency notice identified the material relied upon to establish the tendency as being the complainant’s account in the first three of her recorded police interviews, stating:

18. [32]

    In pre-trial submissions, defence counsel initially objected to the tendency notice, on two bases; it’s lateness and its reliance upon “cross-admissibility”, but withdrew both objections. The trial judge ruled that the evidence had significant probative value, having regard to the presumption in s 97A(2) of the Evidence Act 1995 (NSW), and that it was admissible.

A s 165 application

1. [33]

   Defence counsel sought an unreliability direction from the trial judge to the jury, pursuant to s 165(2) of the Evidence Act (a s 165 direction) as to the complainant’s evidence on the first two counts, on the basis that it “may be unreliable because of the evidence that she gave in connection with the dream”. When asked by the trial judge which sub-section he relied upon, defence counsel accepted it was difficult to “put it within any of those categories” of s 165(1), but when pressed, referred to the category of evidence contained within s 165(1)(c), that is, “evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like”; and the savings provision in s 165(5), which preserves any other power of a judge to give a warning to, or to inform, the jury. Her Honour rejected the application, stating that the issue of the dream was a matter of the complainant’s credibility rather than a form of unreliability that the jury may be unaware of:

The trial judge’s tendency directions

1. [34]

   The trial judge’s directions to the jury on the tendency evidence included the following:

2. [35]

   The tendency direction followed almost verbatim a draft that her Honour provided to the parties beforehand. Shortly before it was delivered, defence counsel referred to the counterpart of the draft direction to the italicised sentences above, and submitted that ss 161A(2) and (3) of the Criminal Procedure Act 1986 (NSW) should apply, so that the jury should be directed that the tendency evidence should be proved beyond reasonable doubt before they could rely upon it. Section 161A is in the following terms.

3. [36]

   Defence counsel submitted that s 161A(3) was apt, because “it’s being adduced as both tendency evidence and as proof of the element of the offence charged”. Defence counsel’s application was refused. The trial judge’s reasoning is considered further below.

Relevant recent authorities: Roder and JS

1. [37]

   As noted, the filing of the appeal was delayed, pending the handing down of the judgment of the Hight Court in Roder and the determination of the special leave application in JS. Those cases are now considered.

2. [38]

   In Roder, the respondent was facing trial in the County Court of Victoria for 27 sexual offences allegedly committed against the children of his former partner. The prosecution served a tendency notice of its intention to contend that the respondent had a particular state of mind, namely, “an improper sexual interest” in the complainants and a willingness to act on that interest “by engaging in sexual activity with them”. The notice set out the particular ways of acting on those tendencies: see Roder at [4]. As to the evidence that established those tendencies, the notice identified evidence that corresponded with each of the incidents the subject of the 27 offences, and evidence of six uncharged acts involving one or the other of the two complainants. Some of the evidence relied upon in relation to the 27 offences included evidence that did not constitute the physical elements of those offences.

3. [39]

   On an interlocutory pre-trial application by the respondent, the trial judge ruled that the jury would be directed that it must be satisfied of the charged acts beyond reasonable doubt before they could be taken into account for the purposes of establishing the alleged tendencies. The Victorian Court of Appeal refused leave to appeal by the Victorian Director of Public Prosecutions (the DPP), finding that the trial judge’s direction was correct. The DPP was granted special leave by the High Court.

4. [40]

   The Court observed that the principal question for determination was, in effect, whether The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 applied in Victoria in relation to charged acts. In Bauer at [86], the Court held that a trial judge in NSW should not ordinarily direct a jury that, before they may act on evidence of uncharged acts adduced to support an alleged tendency on the part of an accused, they must be satisfied of proof of the uncharged acts beyond reasonable doubt, but that such a direction should be given if there is a “significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt”; that is, a Shepherd direction. [3] The Court in Bauer held that a direction requiring proof of uncharged acts beyond reasonable doubt was precluded in Victoria, consequent to ss 61 and 62 of the Jury Directions Act 2015 (Vic), the effect of which was noted in Roder at [14]:

5. [41]

   The question, therefore, was whether what was said in Bauer in respect of uncharged acts applied equally to charged acts, in Victoria. The Court found that it did, for the same reason; that is, it is precluded by ss 61 and 62 of the Jury Directions Act.

6. [42]

   The reasoning of the Victorian Court of Appeal in Roder was noted as follows, at [9]:

7. [43]

   Referring to these concerns, the Court said, at [25]:

8. [44]

   The Court, at [26], referred in this context to JS, extracting [43] from that case:

9. [45]

   At [28], the Court noted that Basten AJA accepted there was a risk of undermining the jury’s understanding of the requisite standard of proof for the elements of the charge, and that:

10. [46]

    The Court concluded, at [37]:

11. [47]

    In JS, the applicant challenged the trial judge’s direction that the jury did not need to be satisfied beyond reasonable doubt of the items advanced as tendency evidence. Basten AJA, at [42], reproduced a passage from the trial judge’s tendency direction as to how the jury should determine whether the tendency was established and the requisite standard of proof for the counts. At [44], Basten AJA determined that, although the impugned passage did invite the jury to make a determination as to the accused’s conduct in considering whether the tendency had been established, when read in the context of the summing up as a whole, which was not set out in the judgment, “there was no risk in this case that the onus and standard of proof were not understood and properly applied”.

Sub-ground 1(a): The directions were inadequate having regard to the manner in which the trial judge dealt with the ‘vivid dream’ evidence

1. [48]

   As noted, all three sub-grounds concerned the trial judge’s directions as to the alleged tendency. The applicant submitted in writing that:

2. [49]

   Since the applicant was acquitted of the counts arising from the West Gosford incident, the relevance of sub-ground 1(a) to this application is that the jury may have been satisfied that the tendency was made out on the basis of the evidence concerning all three incidents, which then contributed to the convictions on the three counts arising from the two Narara incidents.

3. [50]

   The applicant submitted that there were three aspects to the complainant’s evidence of the West Gosford incident that bespoke an inherent concern as to its reliability and distinguished it from her evidence as to the Narara incidents. First, the complainant did not recall the West Gosford incident when she first complained to her mother about the applicant’s offending behaviour, which was about three weeks after it allegedly occurred. Second, there were issues with her recollection as to when the West Gosford incident occurred in relation to the Narara incidents. Third, she recalled the West Gosford incident more than a year and a half later, following a “vivid dream”. The similarity of the alleged offending behaviour in the West Gosford incident with the Narara incidents, and the fact that it was alleged to have occurred in such a short compass with those incidents, further highlighted that concern.

4. [51]

   The applicant submitted that the “frailty of the evidence” arising from those issues warranted a warning being incorporated into the tendency direction to distinguish it from the evidence concerning the Narara incidents, by drawing the jury’s attention to those aspects of unreliability. That submission relied upon Hamill J’s remarks (Beech-Jones CJ at CL and Button J agreeing) in Rassi v R [2023] NSWCCA 119, at [73]:

5. [52]

   The applicant further submitted that, while a s 165 direction was open to the trial judge and would have been desirable, it would not have satisfied the specific need to address the character of the 'vivid dream' evidence in the tendency directions.

6. [53]

   The respondent submitted that the applicant’s concerns as to the complainant’s evidence of the West Gosford incident raised issues of her credibility, and the reliability of her evidence. It was not apparent in the applicant’s submissions how those matters should have been reflected in the tendency direction; the applicant had not proposed a formulation of the direction that should have been given, as has been stated to be a requirement in order to be granted leave under r 4.15 (previously r 4 of the Criminal Appeal Rules: Greenhalgh v R [2017] NSWCCA 94 at [21]).

7. [54]

   Had the tendency direction made specific mention of credibility and reliability issues concerning individual counts, it would have contravened Roder at [37], by shifting the focus of the jury’s attention from whether the asserted tendency was made out, to a determination of charged conduct concerning a particular count.

8. [55]

   As noted, following the trial judge’s direction to the jury concerning tendency, her Honour said she would summarise the cases for the Crown and the defence “on this issue of tendency”. Her Honour said:

9. [56]

   Shortly afterwards, her Honour reviewed the evidence concerning each count for all purposes in the summing up. In our view, that was the appropriate part of the summing up for the jury to be reminded of any concerns of a party as to the credibility and or reliability of the evidence, rather than it being incorporated into the tendency direction.

10. [57]

    We are not persuaded that it was appropriate for the tendency direction to incorporate a warning as to the reliability of the evidence which is said to establish the relevant conduct and, indirectly the alleged tendency. In our view, that would be contrary to the manner in which the jury is to be directed with respect to finding the alleged tendency, as preferred in JS at [43] and required by Roder at [37].

11. [58]

    We refuse leave in respect of sub-ground 1(a).

Sub-ground 1(c): The trial judge erred by not finding s 161A(3) of the Criminal Procedure Act 1986 (NSW) applied to this case

1. [59]

   There is considerable overlap between sub-grounds 1(b)(i), (ii) and 1(c), so they are considered together. As to sub-ground 1(b)(i), as noted, at the outset of the tendency direction, her Honour said:

2. [60]

   The applicant submitted that the underlined parts of the trial judge’s directions on tendency at [34] above, in which her Honour directed the jury to determine whether the applicant “did in fact conduct himself as the Crown alleges” to determine whether the applicant had the alleged tendency, was contrary to Roder.

3. [61]

   The trial judge informed defence counsel that the tendency direction “was in accordance with” JS:

4. [62]

   Defence counsel sought a direction that the tendency evidence be proved beyond a reasonable doubt. He submitted that the facts of this case were distinguishable from those in JS, because:

5. [63]

   Her Honour dealt informally with defence counsel’s application rather than by a judgment. It would appear that what her Honour meant by saying that the tendency direction accorded with JS was that it was consistent with that part of the tendency direction that was extracted in JS, concerning the standard of proof, rather than with the observation by Basten AJA at [43] that it was: “preferable not to direct a jury to make findings as to the conduct relied on in proof of a charge. Rather, the jury should be directed with respect to finding the alleged tendency”.

6. [64]

   The applicant submitted that the trial judge’s tendency direction, contrary to JS at [43] and Roder at [37], directed the jury to make a finding as to whether the conduct complained of occurred, rather than to find whether the tendency was established. It was submitted that if the alleged tendency depended exclusively upon charged acts and was identified by reference to the very acts constituting elements of the offences charged, there is a real risk of the jury engaging in circular reasoning. It was submitted that a way of neutralising that risk was a direction that the act(s) alleged in relation to each Narara incident must be proved beyond reasonable doubt before they could be used as tendency evidence in support of the other Narara incident. This was submitted to be permissible because there was a significant possibility that the jury would rely on each alleged Narara incident as essential to its reaching a finding of guilt in relation to the other Narara incident: s 161A(3) of the Criminal Procedure Act 1986 (NSW). In view of the trial judge’s refusal to give that direction, it was said in effect that it was at least essential for the tendency direction to accord with Roder at [37].

7. [65]

   The respondent submitted that the trial judge’s tendency direction did not direct the jury to make “a specific or particular anterior intermediate finding about the charged counts”. Although the tendency evidence relied upon by the Crown was only the charged conduct, the trial judge’s direction to the jury that they consider whether they could infer the tendency from that evidence which they accepted was not a direction to the jury to make findings in respect of the charged acts. It was said that, in this case, the trial judge’s directions ensured that, as in JS at [44], there was no risk that the onus and standard of proof were not understood and properly applied.

8. [66]

   The respondent submitted that the guidance outlined in Roder was expressed in terms of being what will ordinarily be appropriate and that the stipulation in Roder at [37] that the trial judge should not direct or invite the jury to make findings in respect of charged conduct in determining whether the tendency was established was “preferable” rather than obligatory, and therefore it was not an error of law to not comply with it.

9. [67]

   In the present context, it can also be noted that the applicant submitted as to sub-ground 1(b)(ii), that the trial judge’s direction that “you do not consider each of the three occasions in isolation, you look at them collectively to decide what conduct occurred” for the purposes of determining whether the tendency is established, was confusing and erroneous. It was submitted:

10. [68]

    In this regard, the respondent submitted that the trial judge’s direction, to consider the evidence of the three incidents collectively, was consistent with JS and with Roder.

11. [69]

    Further, as to sub-ground 1(c), the applicant submitted that the trial judge should have found the two conditions of s 161A(3) established, at least in relation to counts 3–7, because there was a “significant possibility” that the jury would rely on the acts alleged in respect of the counts arising from each Narara incident in proving the other Narara incident, and those acts were also relied upon as evidence of the tendency. This is because the evidence in respect of the counts arising from each of the two Narara incidents were so similar in their circumstances (watching a movie while on the lounge at the Narara residence), so temporally proximate (a matter of days apart), and complained of at the same time (within three weeks of them allegedly occurring). It was submitted that while these two incidents were very similar they were distinguishable from counts 1 and 2 because they were not directly associated with the ‘vivid dream’ evidence, occurred in a different location and were reported at a much earlier time.

12. [70]

    Put differently, it was contended that the jury would not have, or may not have, convicted of one or more of the counts arising from one of the Narara incidents, if not satisfied beyond reasonable doubt of the count or counts arising from the other Narara incident, because a finding of guilt in respect of the count or counts arising from one would have been essential to its reasoning if it was to find the applicant guilty of the count or counts arising from the other. That being so, and given the fact that the tendency was expressed in terms of carrying out the acts alleged in each count, a direction regarding proof beyond reasonable doubt of the relevant acts was said to have been required, although the terms of such a direction were not set out expressly. The written and oral submissions seem to suggest that a direction was required to the effect that:

    1. (1)

       The act or acts constituting one Narara incident must be proved beyond reasonable doubt before the evidence of such act(s) could be used as tendency evidence in support of the other Narara incident; or

    2. (2)

       The act or acts constituting one Narara incident must be proved beyond reasonable doubt before the jury could convict the applicant of the act or acts alleged to have occurred on the other Narara incident; or

    3. (3)

       If the jury was not satisfied beyond reasonable doubt of the act or acts alleged in relation to one Narara incident without reference to the other Narara incident, the act or acts alleged in the other Narara incident were required to be proved beyond reasonable doubt before they could be taken into account in support of the act or acts under consideration.

13. [71]

    The respondent submitted that its case did not involve an indispensable intermediate fact in the Shepherd sense.

14. [72]

    The respondent relied upon Astill v R [2024] NSWCCA 118 at [54] to [56].

15. [73]

    Following the hearing of the application, the Court allowed the parties to make supplementary written submissions as to Decision Restricted [2022] NSWCCA 259 (“the Restricted Decision”), which appeared to be relevant to the issues raised by ground 1(b). Essentially, the applicant submitted that the Restricted Decision was relevant to the point of being determinative of those grounds, whereas the respondent submitted that the judgment was not on point.

16. [74]

    The applicant in the Restricted Decision sought leave to appeal from her conviction on six counts, which were four slavery offences contrary to s 270.3(1)(a) of the Criminal Code Act 1995 (Cth) (the Code) and two money laundering offences contrary to s 400.6(1) of the Code. There were two complainants, X and Y, each being the victim of two slavery offences and the subject of one money laundering offence. The Crown relied upon tendency evidence as part of its case concerning the slavery counts.

17. [75]

    One of the grounds of appeal was that the trial judge’s tendency directions to the jury were erroneous and occasioned a miscarriage of justice.

18. [76]

    In considering this ground, Beech-Jones CJ at CL (as his Honour then was), Adamson J (as her Honour then was) and Campbell J agreeing, noted there was a close nexus between the tendency as asserted by the Crown and the evidence it relied upon to prove the slavery offences. In the following passage, his Honour contrasted the trial judge’s tendency direction with the asserted tendency:

19. [77]

    His Honour found that the tendency direction was flawed in other ways as well, including the following:

20. [78]

    His Honour concluded at [74] that “the fundamental flaw in the direction flowed from the manner in which the Crown formulated the alleged tendency” which led to a miscarriage of justice:

21. [79]

    His Honour found that the proviso did not apply and upheld the ground.

22. [80]

    In its supplementary submissions, the applicant contended that the criticisms made in the Restricted Decision concerning the coincidence between the identified evidence relied upon to establish the tendency and to prove the offences, and the criticism of the tendency direction, in particular, in [66] and [68] of the Restricted Decision, applied equally to the tendency direction given in this case.

23. [81]

    The respondent acknowledged that the Restricted Decision was authority for the proposition that an asserted tendency “is not expressed in precisely the same terms as the facts making up the charge offence” but that it was permissible to allege “a tendency to engage in specific or particular behaviours (including identical types of behaviours to the facts on the indictment)”. It submitted that the flaw identified in the Restricted Decision was:

24. [82]

    The respondent submitted this followed from [65] and [66] of the judgment and observations by Beech-Jones CJ at CL about the Restricted Decision in Rassi.

25. [83]

    The case of Rassi concerned an appeal against conviction of the applicant on five counts of historical child sexual assault against a single complainant, who was identified as “MM”. The Crown asserted a tendency by the applicant to have a sexual interest in MM and a preparedness to act on that interest against her. The Crown, in its tendency notice, identified the evidence that it relied upon to establish the tendency as “the evidence of each of the counts on the indictment as tendency evidence in respect of the [other counts]” and multiple instances of various types of certain uncharged acts against MM that were alleged in statements by MM.

26. [84]

    The applicant submitted that the trial judge’s direction to the jury was erroneous in that, as noted by his Honour at [3]:

27. [85]

    In that regard, the applicant relied upon his Honour’s reasoning in the Restricted Decision at [65] and [66]. His Honour extracted those paragraphs and said, at [11]:

28. [86]

    The respondent also relied on Decision Restricted [2023] NSWCCA 89, in which the Restricted Decision was distinguished. It is unnecessary to consider that case further, in view of substantive differences between the tendency notice in that case and in the Restricted Decision, as noted by Adamson JA (Button and McNaughton JJ agreeing) at [191].

29. [87]

    There are a number of problems with the tendency direction in the present case. Firstly, it was at odds with Roder at [37] and with the preferred course stipulated in JS at [43], in that it required the jury to first “consider the evidence relating to the alleged conduct of the [applicant] on the three occasions and decide whether he did in fact conduct himself in the way the Crown alleges”, to consider the “three occasions … collectively to decide what conduct occurred” and:

30. [88]

    As JS makes clear, that flaw is not necessarily fatal, provided that the summing up, read as a whole, ensures that the jury would not be deflected from their task of determining whether the charges were each proved beyond reasonable doubt.

31. [89]

    Secondly, a fundamental issue lies in the framing of the tendency notice. An alleged tendency in sexual assault cases based on charged and/or uncharged acts is often, if not typically, drafted in terms of the accused having a tendency to have a particular state of mind, namely, a sexual interest in the complainant/s or persons of a similar profile to the complainant/s, and a tendency to act on that sexual interest. The terms of the alleged tendency in this case, as put to the jury in the opening paragraph of the extract of her Honour’s tendency direction at [34] above, consistently with the tendency notice that was served on the applicant pursuant to s 97(1) of the Evidence Act, were to have a sexual interest in the complainant, and to act on it in a way that coincides precisely with the specific conduct that was alleged against the applicant in each of the counts, namely, “by penetrating her vagina with his fingers and/or sexually touching her when she had fallen asleep beside him watching a movie”.

32. [90]

    The formulation of the relevant tendency thus replicated the detail of how the offences were allegedly committed in specifying how the applicant’s alleged sexual interest in the complainant was acted upon and relied exclusively on the same body of evidence that the Crown relied upon to prove the offences themselves.

33. [91]

    A direction in this case superficially could comply with Roder at [37] by not, in terms, directing or inviting the jury to make findings in respect of charged conduct, but the reality is that the jury would have no alternative but to go to the evidence of the acts charged, and no other evidence, to determine if the tendency to do those same acts was established.

34. [92]

    Framing the tendency and identifying the evidence to establish it so as to constitute exclusively the offending behaviour itself is inconsistent with the nature of tendency evidence, for reasons explained by Beech-Jones CJ at CL in the Restricted Decision at [64]. We do not accept the respondent’s submission that the tendency and the evidence identified in the tendency notice to establish the tendency did not precisely coincide with the evidence relied upon to prove each count on the indictment, to the extent of incorporating the complainant having “fallen asleep beside him watching a movie”, which applied to the complainant’s version of all three incidents when she was sexually assaulted, in the manners specifically identified in the tendency notice.

35. [93]

    The unsatisfactory consequences of expressing the tendency in precisely the same terms as the facts making up the charged offences were referred to by Beech-Jones CJ at CL in the latter part of [66] of the Restricted Decision:

36. [94]

    We do not think that the cross-admissibility of the alleged tendency in respect of two complainants in the Restricted Decision in some way renders this passage inapplicable to the instant case. His Honour’s essential point, as we understand it, is that there is no remaining purpose for a tendency if, by it being established, the alleged offence or offences are also established. This was the practical effect in this case in relation to the Narara allegations, given the framing of the tendency notice, the direction to decide whether the conduct occurred, the close similarity between those two alleged incidents and the comparative frailty of counts 1 and 2.

37. [95]

    The intractable problems that result from framing an alleged tendency in this way is also illustrated by the trial judge’s direction in the first sentence of the fourth paragraph extracted at [34] above, that:

38. [96]

    We are not critical of her Honour for so directing the jury; it was the orthodox way of directing juries as to the course to be followed if a tendency is not established and conformed with the direction at the time in the Criminal Trial Courts Bench Book. However, as noted by Beech-Jones CJ at CL in the Restricted Decision at [68] in relation to an almost identical direction, it was illogical and confusing.

39. [97]

    A further difficulty arises from this aspect of the trial judge’s direction, extracted and underlined at [34]:

40. [98]

    Where, as in this case, the tendency is expressed in the same terms as the conduct alleged, such a direction is likely to encourage, if not require, the jury to engage in the impermissible circular reasoning identified in JS at [43] and Roder at [25]-[26].

41. [99]

    In all the circumstances, although the summing up dealt appropriately and properly with the onus and standard of proof and the need for the element of each charge to be proved beyond reasonable doubt, it was not designed to, and could not adequately in our view, address the difficulties that arose as a result of the tendency being expressed in precisely the same terms as the acts relied upon to establish the tendency and relied upon to establish the guilt of the applicant in respect of the relevant counts.

42. [100]

    The principles governing the question of a grant of leave pursuant to r 4.15 were reviewed in Gould v R [2023] NSWCCA 103 at [82]-[90]. Insofar as sub-ground 1(b) involves a complaint that was not made below, we would grant leave pursuant to r 4.15, taking into account that the trial was conducted prior to Roder, and more particularly, before the Restricted Decision was handed down and, as noted at [36] above, the reasoning of defence counsel in submitting for a s 161A direction was the coincidence of evidence that was relied upon to establish the tendency and to prove the offences. Although that submission sought a different remedy, it acquainted the trial judge with the issue and her Honour maintained that the draft tendency direction was consistent with JS. Accordingly, that submission by defence counsel had some cross-over relevance to this ground.

43. [101]

    As to whether there was a miscarriage of justice, the respondent submitted that an error or irregularity would not amount to a “misdirection of law” or realistically could not have affected the guilty verdicts. Further, the mixed verdicts demonstrated that the jury dealt with each charge separately and did not treat the tendency evidence in a “unthinking, uncritical or uniform way”, relying upon the reasoning in Astill by the Chief Justice at [60].

44. [102]

    The fact of mixed verdicts is, prima facie, consistent with the jury applying any established tendency and the appropriate standard of proof to their ultimate determinations appropriately. However, in our view, the acquittals on counts 1 and 2 are explicable by the nature of the reliability issues with the complainant’s evidence concerning them, which does not provide reassurance that the jury did not fall into error in their deliberations as to the asserted tendency and whether the evidence established one or more of the remaining counts to the required standard. The tight connection between the tendency and the offending conduct in the Narara incidents was such that the danger identified in Roder at [28], that culminated in the Court’s resolution at [37], was of particular significance in this case. In our view, the fact that the asserted tendency, as acted upon, replicated the offending conduct meant that it was not possible for the jury to distinguish the tendency from the conduct constituting the alleged offences, which in the peculiar circumstances of this case, invited circular or boot-strap reasoning.

45. [103]

    The reasoning in Astill at [60], and the determination in that case that there was not a miscarriage of justice, was in the context that the complaints made of the tendency direction had not been made out, and therefore it is of little assistance in this case.

46. [104]

    We would add that we do not accept the respondent’s interpretation of the word ordinarily in Roder at [37], to mean that it is a preferred rather than a mandated course. We understand the context of that term in [37] to be confined to a preference for a single tendency direction where the prosecution relies on both charged and uncharged acts, not as to the content of the direction.

47. [105]

    We are satisfied that a miscarriage of justice was occasioned by a misdirection of law, namely, in the circumstances of this case, a direction to the jury to make findings of the charged conduct in order to determine if the tendency expressed in the same terms as the charged conduct is established. Applying the relevant reasoning of Beech-Jones CJ at CL in the Restricted Decision, the tendency direction in the present case, although viewed in the context of the summing up as a whole, did not adequately direct the jury and it was likely that the jury’s attention would be deflected from applying the required standard of proof in respect of the offences charged.

48. [106]

    As to sub-ground 1(c), we have noted that the trial judge’s reasoning in rejecting the application for a direction that the tendency evidence be proved beyond reasonable doubt was that the draft tendency direction conformed with what was said in JS. Section 161A(3) effectively allowed for a Shepherd direction to be given if there was “a significant possibility” that a jury would rely on an act or omission that had been adduced as tendency evidence as being essential to its reasoning in reaching a finding of guilt. The terms of s 161A(3) pick up and preserve what was said in Bauer at [86] (see [40] above), although it is not restricted to uncharged acts in its form in s 161A(3). That section was considered in Astill by the Chief Justice at [54]-[57]. His Honour observed, at [56], that tendency evidence will not usually form an indispensable link in the chain of reasoning to guilt, and that it did not apply in that particular case:

49. [107]

    Similarly here, there was direct evidence from the complainant in support of each alleged Narara incident, and some supporting evidence in relation to opportunity and complaint. Although different verdicts arising from the two Narara incidents would have been very surprising (arguably rendering a conviction inconsistent with acquittal, to the point of demonstrating unreasonableness), proof of one was not an indispensable intermediate fact, or essential, in proof of the other. Further, the suggested differential direction regarding the evidence in support of counts 3-7 has a similar problem to that outlined above at [57] in connection with ground 1(a).

50. [108]

    Ground 1(c) in truth raises an issue anterior to the complaint in ground 1(b). If s 161A(3) applied, the trial judge would not have erred by directing or inviting the jury to make findings in respect of charged conduct in considering the tendency evidence. This is what the applicant submits her Honour should have done, with the standard of proof being beyond reasonable doubt. It is in that sense that the applicant in effect submitted that in light of the refusal to provide such direction it was at least necessary to comply with Roder. Insofar as the applicant alternatively submitted that the non-compliance with Roder could have been neutralised by a direction requiring proof of the evidence, as tendency evidence, beyond reasonable doubt, there is no need to determine the issue. If a miscarriage of justice was occasioned by a misdirection of law, it is not to the point that some other direction, which was itself not a correct one, may have salvaged the situation to some extent.

51. [109]

    The drafting of s 161A(1) and (3) suggests a minimalist approach to the application of the standard of proof beyond reasonable doubt. We are not satisfied that the terms of s 161A(3) were met in this case. The concerns raised by the applicant in support of ground of appeal 1(c), in combination with the problems in the framing of the tendency notice and the potential difficulty in assisting a jury to use tendency reasoning in the circumstances of this particular case in a way that was not unfair, may well have supported a refusal to allow the use of tendency reasoning. However, as this point was not taken at trial and was not argued as a ground of appeal there is no cause to consider this further. The issues raised did not demonstrate error in the trial judge not finding the terms of s 161A(3) made out, and ground 1(c) is dismissed.

Conclusion

1. [110]

   Noting that the respondent does not rely on the proviso to s 6(1) of the Criminal Appeal Act, we uphold the appeal, with the consequence that a re-trial is required.

Orders

1. [111]

   For these reasons, the Court makes the following orders:

   1. (1)

      Leave is granted to extend the time to file the notice of appeal to the date it was filed, pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Criminal Appeal Rules);

   2. (2)

      Leave is granted in respect of sub-grounds 1(a), (b) and (c), pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW);

   3. (3)

      Leave is refused for sub-ground 1(a) in respect of r 4.15 of the Criminal Appeal Rules;

   4. (4)

      Leave is granted for sub-ground 1(c) in respect of r 4.15 of the Criminal Appeal Rules;

   5. (5)

      Sub-ground 1(c) is dismissed;

   6. (6)

      Sub-ground 1(b) is upheld;

   7. (7)

      The convictions on counts 3, 5 and 7 are quashed; and

   8. (8)

      The applicant is to be retried on those counts.

   9. (9)

      The matter is listed in the arraignments list in the District Court at Gosford on 6 March 2025.