New v R

1. [1]

   MITCHELMORE JA: The appellant, Jack New, sought leave to appeal against his convictions for an offence contrary to s 61KC(a) of the Crimes Act 1900 (NSW), and an offence contrary s 61I of the Crimes Act. He also sought leave to appeal against the aggregate sentence imposed on him in the District Court for those two offences and a further offence of perverting the course of justice, contrary to s 319 of the Crimes Act, to which he entered a plea of guilty.

2. [2]

   The offences under ss 61KC(a) and 61I of the Crimes Act involved different complainants. The indictment charged that:

   1. (1)

      between 1 March 2019 and 5 April 2019, the appellant intentionally touched AP sexually without her consent and knowing that she was not consenting (the s 61KC(a) count); and

   2. (2)

      on or about 14 December 2019, the appellant had sexual intercourse with EM without her consent and knowing that she was not consenting (the s 61I count).

3. [3]

   Following a trial conducted by O’Rourke DCJ sitting with a jury in September 2022, the jury found the appellant guilty on the s 61KC(a) count involving AP, and was unable to reach a verdict on the s 61I count involving EM. A second trial on the s 61I count involving EM was conducted in September 2023, again by O’Rourke DCJ sitting with a jury, following which the jury found the appellant guilty. On 4 April 2024, the appellant was sentenced for those two counts and for the offence of perverting the course of justice. The latter offence had been severed from the original indictment by consent, and the appellant entered a plea of guilty on 17 October 2022, a few weeks after the jury’s verdict in the first trial. Her Honour imposed an aggregate sentence of 6 years imprisonment, with a non-parole period of 3 years and 7 months.

4. [4]

   On 20 November 2024, this Court heard oral arguments on the conviction and sentence appeals. On 24 December 2024, the Court made orders which are set out in full in the reasons of Dhanji J (at [118]). The orders included granting leave to appeal, allowing the appeal, quashing the convictions for the offences contrary to s 61KC(a) and s 61I of the Crimes Act, and quashing the aggregate sentence.

5. [5]

   The focus of the appellant’s conviction appeal was the admissibility of tendency evidence which the trial judge ruled was admissible over the appellant’s objection, the scope of the tendency evidence as it was ultimately led in both trials, and the trial judge’s directions in relation to that evidence. The grounds of appeal were as follows:

6. [6]

   Before joining in the orders that the Court made on 24 December 2024, I had the significant advantage of reading in draft the reasons for judgment of Dhanji J addressing the background of the two trials and the tendency evidence, and the grounds of appeal. I agree that grounds 2(a) and 2(b) (which his Honour addresses together) and ground 4 should be upheld with respect to both convictions, and that grounds 1 and 3 should not be upheld, for the reasons his Honour gives.

7. [7]

   In the written submissions filed on the conviction appeal, the appellant submitted that in the event that the Court upheld any one or more of the grounds then his convictions should be quashed and a retrial ordered. In quashing the convictions on 24 December 2024, the Court reserved the question of whether it should direct the entry of verdicts of acquittal on the counts in respect of which the convictions were quashed or order a new trial on those counts. The Court made directions for submissions with a view to determining the question on the papers.

8. [8]

   On 7 February 2025, the Crown filed written submissions in accordance with the Court’s orders, submitting that the Court should make an order for a new trial. The appellant filed written submissions on 17 February 2025 in support of acquittals. The Court granted leave to the Crown to file submissions in reply, in which the Crown submitted that the factors that the appellant advanced in support of acquittals did not outweigh the matters that favoured a new trial.

9. [9]

   The appellant noted in his submissions that if ground 1 were upheld and the tendency evidence was ruled inadmissible in its entirety, a further joint trial of both counts would be unlikely. As I agree with the reasons given by Dhanji J that ground 1 should not be upheld, a further joint trial would be the likely outcome of an order for a new trial.

10. [10]

    In their respective reasons for judgment below, both Fagan J and Dhanji J have given careful and detailed consideration to the issue and have determined that acquittals should be entered. Although I have not found the issue easy to resolve, ultimately I have reached the view that a new trial should be ordered. As mine is a minority view I will state my reasons briefly. In WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142 (“WX”), Beech-Jones CJ at CL provided the following succinct summary of the applicable provisions of the Criminal Appeal Act 1912 (NSW) and the principles:

11. [11]

    Justice Dhanji has extracted below at [314] the non-exhaustive list of factors that McClellan CJ at CL identified in Gilham v R [2012] NSWCCA 131; (2012) 224 A Crim R 22 at [649] as bearing on where the interests of justice lie. The relative weight to be attached to the various factors “may vary widely from case to case according to its particular circumstances”: Reid v The Queen [1980] AC 343; [1979] 2 All ER 904 (“Reid”) at 349; R v Lazarus [2017] NSWCCA 279; (2017) 270 A Crim R 378 (“Lazarus”) at [157] (Bellew J, Hoeben CJ at CL and Davies J agreeing).

12. [12]

    In support of the interests of justice requiring entry of acquittals in the present case, it is significant that any further trial would be the appellant’s third trial. I have summarised the chronology of the trials in [3] above. The allegations date back to March-April 2019 (in relation to AP) and December 2019 (in relation to EM); and as Dhanji J observes below (at [320]), the appellant was charged in October 2020, at which time he was 28 years old. Taking into account a further period for a retrial, the delay in bringing the appellant to trial is undesirable: see Lazarus at [159]. It is also of significance that the appellant spent 1 year, 3 months and 12 days in custody before the aggregate sentence was quashed.

13. [13]

    In sentencing the appellant on 4 April 2024, the sentencing judge accepted that “[the appellant] clearly has mental health issues and they have and will make his time in custody more onerous than the average inmate”. What her Honour there said about the appellant’s custody having already proved more onerous than average (the appellant had been in custody for more than six months at the date of sentence) demonstrated what the appellant submitted in this Court regarding the adverse psychological impact of his experience in custody and that he otherwise sought to prove through the tender of additional psychological reports, to which the Crown objected. Assuming for argument’s sake that the content of those reports were given in an admissible form (the reports as tendered were not admissible for the reasons Dhanji J gives below), such content would not in my view have added materially to the evidence already before the Court. This was the appellant’s first time in a custodial environment, and the Crown did not challenge the diagnoses of the appellant in the medical reports on sentence, which included expressions of opinion as to his likely vulnerability to others in custody.

14. [14]

    As Bellew J observed in Lazarus at [161], whilst recognising that any criminal trial is an ordeal for a complainant, it is also an ordeal for an accused. A further trial would involve a third occasion on which the appellant would be put through that ordeal. That he has been released from custody is also relevant in this respect.

15. [15]

    I have also considered the appellant’s submissions that the Crown was responsible for any error leading to the convictions being quashed. As McClellan CJ at CL stated in Gilham, a relevant factor is whether a retrial would “impermissibly give the prosecution an opportunity to supplement or ‘patch up’ a defective case or to present a case significantly different to that presented to the jury in the previous trial”. The reasons of Gleeson CJ in R v Anderson (1991) 53 A Crim R 421 provide an example, with his Honour stating at 453:

16. [16]

    The grounds of appeal that the Court has unanimously upheld are grounds 2(a) and 2(b). Those grounds concerned part of the evidence of a witness, FK, led as tendency evidence, which did not satisfy the test of significant probative value in s 97(1) of the Evidence Act. Some of that evidence was, in the words of Dhanji J, extremely damaging (see [248] below). Unlike other cases where a retrial has been ordered (as, for example, in WX), it cannot be said that the Crown played no role in the convictions being quashed. It was evidence that the Crown led, albeit following a ruling of the trial judge as to its admissibility (made on the basis of the witness statements as opposed to the evidence ultimately led in the trial). It is a factor to be considered, although it is not one that I would give the weight that has been attributed to it in other cases having regard to the circumstances. For the reasons explained by Dhanji J in relation to ground 1, the balance of the tendency evidence, including other evidence given by FK, was admissible.

17. [17]

    In my view, the matters that support the interests of justice in favour of entering acquittals in the present case are not such as to outweigh the interests in support of an order for a new trial. The evidence led by the Crown was sufficiently cogent to justify conviction, and it would remain so without the evidence that was the subject of grounds 2(a) and 2(b). There is an obvious public interest in the prosecution of offenders charged with serious criminal conduct: Lazarus at [160]. There is also the public interest in not usurping the role of the Director of Public Prosecutions (DPP) in deciding to prosecute (see WX at [95] and [100]), and the desirability of having the guilt or innocence of an accused person finally determined by a jury: R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 at [51]. Relevantly in this context, in ALS v R [2013] NSWCCA 63 Beech-Jones J stated at [116]:

18. [18]

    Accordingly, I would have made an order for a new trial on the two counts for which the appellant’s convictions were quashed. Consistently with the approach taken in the court below, in which the sentence proceedings for all offences awaited the conclusion of the second trial, given my decision regarding retrial I would have remitted to the District Court the resentence for the perverting the course of justice offence, to which the appellant pleaded guilty. On the decision of the majority of this Court to enter acquittals on the charges under s 61KC(a) and s 61I of the Crimes Act, it remains to resentence the appellant for that offence.

19. [19]

    As I noted above, the orders of the Court on 24 December 2024 included an order quashing the aggregate sentence. That order rendered it unnecessary to determine the appellant’s appeal against that sentence, which included a ground of appeal that was specific to the sentencing judge’s rejection of evidence he gave in relation to the perverting the course of justice offence. In the reasons of Dhanji J below, his Honour has proceeded to resentence the appellant for the offence pursuant to s 7(1A) of the Criminal Appeal Act. In so doing his Honour has addressed the appellant’s complaint on the ground of the sentence appeal that was specific to this offence. I have considered the reasons for judgment of Dhanji J on the resentence, and subject to my different view as to the overall outcome I agree with the sentence his Honour has imposed for that offence, for the reasons his Honour has given.

20. [20]

    FAGAN J: This judgment records my reasons for having joined in the orders of the Court pronounced on 24 December last, whereby the convictions of the appellant on two counts of sexual offending were quashed. The orders are reproduced by Dhanji J at [118]. Later paragraphs explain the basis upon which I have concluded that there should be no order for retrial and that verdicts of acquittal should be entered.

21. [21]

    Before joining in the orders quashing the convictions I had the advantage of reading Dhanji J’s draft judgment, now published in settled form. I am indebted for his Honour’s summation of the principles upon which tendency evidence may be received in a criminal trial and his overview of the two trials from which the appeal is brought. I agree with his Honour that significant parts of the evidence of FK were not admissible to prove the tendency propounded by the Crown, so that grounds 2(a) and 2(b) should be upheld with respect to both convictions. I am of the further view that none of the evidence adduced solely in proof of the tendency should have been received, so that ground 1 should also be upheld.

22. [22]

    The charge of indecent assault of AP (s 61KC(a) of the Crimes Act 1900 (NSW)) was count 1 on the indictment presented at the first trial in September 2022. The charge of sexual intercourse without consent (s 61I of the Crimes Act) concerning EM was count 2. As a shorthand I will refer to the latter charge as count 2 although, following the jury’s failure to return a verdict on that charge in the first trial, it became the sole count on the indictment dated 21 October 2022 presented at the appellant’s second trial in September 2023.

The formulation of the putative tendency in the s 97 notice

1. [23]

   The tendency propounded in the Crown’s notice dated 20 July 2022 under s 97 of the Evidence Act 1995 (NSW) was as follows:

2. [24]

   I agree with Dhanji J that the tendency propounded in the notice was understood by the trial judge, the Crown and defence counsel, in both trials, as a tendency to touch unconscious women in a sexual manner knowing that they were unconscious. That understanding involved some interpolation and implication to overcome poor drafting.

3. [25]

   Evidence to substantiate the tendency was directed to proof of sexual touching of AP and FK and sexual penetration of EM while those three young women, respectively, were asleep. It was alleged that each of them woke to find that sexual contact was taking place. “Unconscious” means in a state of not being awake and not aware of or responsive to one’s environment. It includes the state of being asleep. However, to describe a person as unconscious would commonly be understood to mean that the person is not able to be roused and that the unconscious state has been brought about not by falling asleep but by ingesting in intoxicant or by accident or medical event, such as insult to the brain through head injury, or hypoxia due to reduced cerebral blood supply.

4. [26]

   The Crown did not allege that either of the complainants or the tendency witness, FK, was unconscious in that commonly understood sense. Each of them was rousable and, on the Crown case, each did wake in response to physical contact by the appellant. Given the facts that were alleged in counts 1 and 2, the only tendency that could have been relevant was a component or subset of the tendency formulated by the Crown under the broad term “unconscious”; namely, a tendency to touch sleeping women in a sexual manner knowing that they were asleep.

5. [27]

   As Dhanji J has pointed out, ground 1 should be decided upon the admissibility or otherwise of the evidence as it was given in the trial, not by reference to the evidence that was anticipated when the pre-trial tendency ruling was made. Like his Honour, I would not find it useful to analyse the learned trial judge’s reasons for her pre-trial ruling. The standard to be applied on appeal is whether reception of the disputed tendency evidence was correct, rather than whether the trial judge’s decision was open to her on the basis that she applied correct principles, took into account relevant considerations and so on: The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 (hereafter: The Queen v Bauer) at [61].

Grounds 2(a) and (b) – indecent assault upon AP – September 2022 trial

1. [28]

   I will commence with consideration of grounds 2(a) and 2(b) in relation to the conduct of the first trial and the resulting conviction of the appellant on count 1. I will thereafter consider those grounds in relation to the second trial and the conviction on count 2. It is necessary that I should first summarise AP’s evidence on count 1 and then the evidence of EM and FK, both of whom were tendency witnesses only, so far as the case on count 1 was concerned.

2. [29]

   AP gave evidence that from about September 2018 she was “intimate sexually” with the appellant but that she considered the relationship “casual” and not “serious”. Those descriptions were allowed to stand without elaboration. They would have been understood by the jury to mean that from about September 2018 the appellant and AP had sexual intercourse with each other consensually but so far as AP was concerned this was not accompanied by emotional involvement or commitment. AP did not give evidence that at any time she felt affection for, or had any personal interest in, the appellant. No evidence was adduced of the frequency of intercourse in this physical relationship. The appellant was 26 years old in late 2018 and AP was 21.

3. [30]

   When AP was asked whether her relationship with the appellant changed from the beginning of 2019, she did not suggest that it ceased to be a sexual relationship but only that the following was agreed between the two of them:

4. [31]

   AP said that she and the appellant moved into a studio apartment together from the end of February 2019. There was only one bed in the apartment and it would have been clear to the jury that AP and the appellant slept in it together routinely during the period of approximately one month immediately preceding the date of the alleged indecent assault. When asked whether the relationship changed after they commenced to live together and whether they were happy, AP gave the following answers:

5. [32]

   The effect of this evidence was that AP and the appellant continued their casual sexual relationship whilst residing together, having intercourse at an unstated frequency, and they regarded themselves as individually free to engage in sexual intercourse with other partners. AP said that it was only the appellant who had “a problem” about “being intimate with other people”, which the jury would have understood as meaning that he was not happy about AP having intercourse with other partners. She said that the appellant was also unhappy “about me not being as intimate as he would like me to be with him”, apparently meaning that she did not have sexual intercourse with him as often as he would have liked. In cross-examination AP denied that she ever complained to the appellant about him staying in contact with ex-girlfriends. The relationship between AP and the appellant continued to be “open” while they lived together in the apartment during March 2019.

6. [33]

   During the evening of 28 March AP went out with a female friend and consumed approximately 10 standard drinks between about 7:00 pm and 1:00 am the next morning. The appellant was not with her. AP described herself as “quite drunk” when she arrived back at the apartment and “passed out” lying crosswise over the foot of the bed. She was wearing underpants and a short top, leaving her midriff bare. The appellant was not present.

7. [34]

   AP’s description of events constituting the indecent assault commenced with her waking up, feeling a weight on her body. That turned out to be the appellant lying on top of her. She was on her back and he was facing her with his head a little lower than her own, towards her chest. The appellant was touching her breasts and nipples under her top and touching her vagina under her pants. She pushed him off and the following exchange ensued (based upon AP’s evidence in chief and in cross-examination):

8. [35]

   AP agreed in cross-examination that the appellant looked confused at the commencement of that exchange. She said she had not consented to being touched in the sexual manner that she described. In cross-examination the appellant’s counsel put to AP that “this assault you’ve told us about” did not occur. He suggested that she might be mistaken in her recollection because she was drunk on the night in question. AP rejected those propositions. The only element of count 1 on which defence counsel challenged AP was the physical element of whether the sexual touching took place. However, counsel made clear in his opening address that in order to prove the charge the Crown would have to satisfy the jury that the complainant did not consent and “that the accused had sufficient awareness of lack of consent, if you find there to be such”. The absence of cross-examination on the second and third elements was not inconsistent with there being live issues on those matters.

9. [36]

   In the first trial EM said she met the appellant in June 2019. The appellant was then 27 years old and EM was 21. In late July or August 2019 she had dinner with him at his house. His sister and the sister’s boyfriend were also present. After they had left, EM watched a movie with the appellant, lying on his bed. He asked if he could kiss her and she declined. She went to sleep on the bed, fully clothed. She gave the following evidence about the circumstances in which she woke up the next morning:

10. [37]

    EM gave evidence that they then had a discussion, lying on the bed together, in which he said he wanted to have intercourse with her and she said she did not want that. He also said he wanted to take her on a date. EM responded with a number of reasons why a romantic relationship between them was not practical or appropriate.

11. [38]

    EM said that later during August 2019 she did go out with the appellant and that she first had sexual intercourse with him during that month. She said that their sexual relationship was initially satisfactory but conflict soon developed because the appellant often wanted intercourse when she did not. EM said he would “just touch me and rub his penis against my butt and just try and get me to sleep with him”. EM used the expression “sleep with” on a number of occasions during her evidence, consistently to convey the meaning have sexual intercourse with. She said that the appellant’s persistence and her refusal would progress to an argument and then she would “just give in” and have sex with him anyway.

12. [39]

    On the night of 13-14 December 2019 EM and the appellant took a room together at a hotel in Double Bay to celebrate EM’s 21st birthday. EM said that after checking in they had consensual intercourse in the room before going down to dinner. Back in the room after dinner the appellant mixed two “caps” of MDMA in a bottle of champagne. The two of them consumed that between about 8:30 pm and midnight, following which they had sexual intercourse again, twice, consensually. The appellant took photographs of EM in bed, also with her consent. EM described the circumstances in which she fell asleep in the following answers:

13. [40]

    In cross-examination EM said this:

14. [41]

    EM described how she woke up later during the night, after an interval of sleeping that was not specified in the evidence:

15. [42]

    EM said that the appellant then withdrew and sat on the end of the bed. She said she became hysterical, apparently because the appellant’s acts had stirred a memory of a traumatic kidnapping of herself during her childhood in Germany, when she was 11 years old. In cross-examination she elaborated that she was “kidnapped … by trick” by a male person named Steinwedel but “he never touched me”. EM said that, upon being woken by the appellant penetrating her, she feared that the person having intercourse with her was Steinwedel. She gave this answer:

16. [43]

    EM said that for about five minutes the appellant tried to talk to her but she ignored him. She gave the following evidence about the next exchange of words between them:

17. [44]

    According to EM, the appellant then went back to sleep and she tried to do the same but could not. She lay “in the exact position as [shown in a photograph, Ex J] all night, just trying to get sleep, but couldn't really”. She said that “in the morning, he tried to get close to me again”. She described that as follows in evidence in chief:

18. [45]

    In cross-examination EM described that as follows:

19. [46]

    EM said that she rebuffed that sexual approach in the early morning and a conversation ensued between them as follows:

20. [47]

    EM and the appellant socialised with friends throughout that day, at various drinking establishments. They continued to see each other over the next week or so until the appellant went to Japan for an extended stay. On one more occasion before his departure they had intercourse. Up until the appellant left for Japan EM continued to express to the appellant her upset over the sexual intercourse while she was asleep. The appellant repeatedly apologised. On 22 December 2019 EM exchanged electronic messages with a friend in Germany who was evidently familiar with the background of her childhood kidnapping trauma. EM described to her friend what had occurred in the hotel room and how she had reacted. While the appellant was in Japan he and EM exchanged messages in which they continued to discuss her upset over the incident and his regret. He returned to Australia in late January 2020 and the same discussion was carried on until EM ended the relationship in March of that year.

21. [48]

    At about the end of the first week of May 2020 EM was admitted to a psychiatric hospital. According to her evidence she had symptoms of post traumatic stress disorder at that time. EM and the appellant exchanged dozens of text messages in mid-June 2020, in a number of which the appellant asserted that he had believed EM was awake when he had intercourse with her. He claimed that she “made noises” and “reacted”. EM accepted that he “didn’t do it on purpose” but she said, “the truth is you raped me”.

22. [49]

    In about June 2020 EM told a female friend what had occurred in the Double Bay hotel room. She gave the following evidence about the female friend’s response:

23. [50]

    No objection was taken to that evidence and no appeal ground is raised in respect of it. However, it illustrates how the reception of tendency evidence in this case brought with it looseness and lack of discipline about the introduction of inadmissible and prejudicial statements. The witness referred to unspecified “situations” with an indeterminate number of “other girls” that had been a bit “iffy” in some respect that was unparticularised but implicitly discreditable. That was gratuitous, damaging and inadmissible. It impugned the character of the appellant as a person with a propensity for sexual offending, or at least misconduct. Combined with the inadmissible evidence given by FK, considered below, this hearsay was calculated to inflame the jury against the appellant, suggesting that the two charged instances were merely the tip of an iceberg.

24. [51]

    EM gave evidence that soon after the June 2020 phone call with her female friend she met with AP to discuss their respective experiences of the appellant. AP gave evidence of that meeting to similar effect. After discussion between them that day they went together to a police station and made statements that led to the commencement of the prosecution of the appellant on both counts.

25. [52]

    FK said that she met the appellant in March 2018. She declined a few invitations from him for dinner and lunch dates but they socialised as friends in a group on “quite a few occasions”. After late nights out FK often invited the appellant back to the house she shared with a housemate. On those occasions FK and the appellant often stayed up chatting late at night and FK would allow the appellant to stay over, sleeping in her bed. She gave this evidence:

26. [53]

    Notwithstanding that FK set those boundaries, she described what occurred when the appellant shared her bed as follows:

27. [54]

    FK said that on some occasions when she and the appellant had been socialising and she had been drinking, the appellant would kiss her. She said this:

28. [55]

    Despite the fact that FK allowed the appellant to kiss her on occasions, she tried to avoid any further development of intimacy between them, as follows:

29. [56]

    FK said she was told by the appellant that he had been in a relationship with AP but that it had ended. She thought she was told this in “about mid 2018”. After he had told her of breaking off with AP, up to January 2019 when FK commenced a relationship with someone else and ceased contact with the appellant, FK said that the appellant continued to stay over and share her bed, as before. She gave these answers:

30. [57]

    FK said that subsequent to the last-mentioned incident she had sexual intercourse with the appellant on three occasions but then she told him that she had not wanted that to happen and that it would not happen again. They continued sharing her bed on occasions and the appellant usually pressed up against her and put his arm over her but she “never let it go as far as sex again”.

31. [58]

    There was a conflict between FK’s recollection of what the appellant told her about when his relationship with AP ended and AP’s evidence that that relationship ran from mid-2018 to the end of March 2019. The conflict was not reconciled by any further evidence.

32. [59]

    FK said that in mid-2020 she was told by EM that she had been staying in a hotel with the appellant and that she had “woken up and he'd been having sex with her when she was asleep”. FK had then discussed that with the appellant on a video call. At the conclusion of FK’s evidence in chief the prosecutor adduced the following answers:

33. [60]

    That evidence was adduced by arrangement between the prosecutor and defence counsel as a compromise with respect to more expansive evidence, of which the Crown had given notice, concerning a conversation between FK and the appellant. Both at trial and on appeal the Crown submitted that the passage quoted above was evidence of an admission regarding count 2. I do not accept that the statements attributed by FK to the appellant bore that character. In any event, in the trial of the appellant on count 1, evidence of count 2 could only have been admissible to prove tendency and the appellant had objected globally to tendency evidence.

34. [61]

    In closing address in the first trial the prosecutor submitted the following to the jury:

35. [62]

    In her summing up in the first trial the learned judge referred to FK’s evidence that the appellant “told her that he had an issue pressuring girls for sex”. After reminding the jury of three other statements by the appellant, of which evidence had been given, her Honour said this:

36. [63]

    In the second trial, wherein this evidence from FK was tendered on count 2, the Crown’s final address and the learned judge’s summing up contained passages in nearly identical terms to those quoted above.

37. [64]

    The appellant pressing up against FK and putting his arm around her on numerous occasions when he shared her bed was open to be understood by the jury as sexual touching. It was of a significantly less direct and intrusive nature than the sexual touching of AP alleged in count 1, especially because the evidence did not show that either FK or the appellant was unclothed on any occasion when this occurred. It was open to the jury to accept FK’s evidence that the appellant’s contact with her was against her wishes as expressly conveyed before they lay down in bed together, that it occurred while she was asleep, that it woke her and that the appellant stopped when she objected. To that point her evidence was capable of supporting the tendency formulated by the Crown, interpreted as explained at the end of [26] above.

38. [65]

    However, FK’s evidence of the occasion when the appellant continued to make bodily contact with her over an extended period while she was awake, eventually driving her to escape his attentions by climbing over him and out of the bed, had no probative value for establishing the tendency. That episode had nothing to do with proving a tendency to touch a sleeping female in a sexual way, knowing she was sleeping. It was a description of a series of uncharged indecent assaults perpetrated in disregard of FK’s explicit indications of non-consent both before and during the course of the sexual touching. As it was not probative of the tendency, which was the only putative purpose for which it was adduced, it was inadmissible.

39. [66]

    It was open to the jury to be satisfied beyond reasonable doubt that the appellant touched AP in the manner and in the circumstances she described and that she did not in fact consent. There was no evidence that the appellant knew how much AP had drunk, or how recently, or to what extent the alcohol had affected her. AP described herself as having “passed out”. The evidence did not suggest that that meant anything other than that she fell asleep under the influence of alcohol. There was no evidence from which the jury could infer that the appellant knew any more about her state than that she was sleeping.

40. [67]

    The inadmissible evidence from FK about persistent sexual contact with her while she was awake portrayed the appellant as having a propensity to soldier on sexually touching a person with whom he had no established sexual relationship, heedless of clear communication that his attentions were unwanted. That was damaging to him, yet entirely collateral to the allegations in count 1, which concerned whether he knew of, or was reckless as to, the non-consent of a female who was in an intimate relationship with him but was asleep. The fact that this first inadmissible portion of FK’s evidence was introduced is sufficient to sustain grounds 2(a) and (b).

41. [68]

    In support of grounds 2(a) and (b) the appellant also refers to FK’s evidence that he admitted to having “an issue with pressuring girls for sex” (see [59] above). I accept the appellant’s submission that that was also irrelevant to proof of the alleged tendency. Pressuring might take the form of wheedling or imploring or threatening or intimidating, amongst other possible meanings of that broad term. Any conduct within the broad concept “pressuring” could only be directed, logically, against a female who was awake. As paraphrased by FK, what the appellant said to her about his “issue with pressuring girls” was not an admission that could be related to the alleged tendency to touch in a sexual way females who were asleep, knowing them to be asleep. The admission attributed by FK to the appellant that he was “going to get help” for this “issue” tended to suggest some form of personality or mental disorder. That, again, would not be probative of the specified tendency because of the looseness of the term “pressuring”.

42. [69]

    As the appellant correctly submits, the Crown expressly informed the trial judge that FK was “a tendency witness only”. The extract from the prosecutor’s closing address quoted at [61] above was consistent with that. Defence counsel apparently thought the pre-trial ruling foreclosed objection to this portion of FK’s evidence. Having regard to the way the Crown addressed the jury and the terms in which the learned judge summed up, any objection on behalf of the appellant would have been futile in the face of the tendency ruling. There was no justification for adducing this material from FK. It was incapable of supporting the asserted tendency. It was irrelevant. The charges had nothing to do with “pressuring girls for sex”. Each count alleged that the appellant took advantage of his partner to engage in sexual activity with her when she was asleep and when “pressure” was not required. FK’s evidence that the appellant admitted needing “help” for an “issue with pressuring girls for sex” was highly prejudicial. It conveyed to the jury that uncontrolled sexual urges caused the appellant to misconduct himself, generally, towards the opposite sex.

43. [70]

    The erroneous reception of this further passage of FK’s evidence independently supports grounds 2(a) and (b) with respect to count 1.

Ground 1 – indecent assault upon AP – September 2022 trial

1. [71]

   By ground 1 the appellant contends that all evidence admitted solely in proof of the alleged tendency was wrongly received. In the first trial, on count 1, the tendency material consisted of EM’s evidence of sexual touching while she was asleep on an occasion prior to the commencement of their sexual relationship (see [36] above), EM’s evidence of the sexual intercourse alleged in count 2 and FK’s evidence of repeated instances of sexual touching during sleep when the appellant shared her bed.

2. [72]

   On count 1 all elements were put in issue by the plea of not guilty. The appellant did not confine his case. The alleged tendency could not logically have any role to play in proving the element of AP’s non-consent. The tendency was directed to increasing the likelihood that the appellant committed the acts alleged and that he knew AP was asleep at the time. By the date of the incident alleged in count 1, AP had lived with the appellant and shared a bed with him for one month. Their sexual relationship had commenced several months before that and was continuing. In those circumstances knowledge that AP was sleeping did not necessarily exclude a reasonable doubt as to whether the appellant knew of or was reckless about AP not consenting; it did not necessarily exclude a reasonable possibility that the appellant may have believed AP consented implicitly. Considerations bearing upon knowledge of non-consent in a continuing relationship are discussed further below. Nevertheless, if the Crown could prove that the appellant knew AP was asleep, that would be one significant circumstance upon which it could rely towards proving the element of knowledge of non-consent.

3. [73]

   In a continuing sexual relationship between a couple such as the appellant and AP, who cohabit and routinely share a bed, it could not be regarded as unusual or notable that the man would, on occasion, sexually touch the woman without prior discussion, including when the woman is sleeping. That would surely be common human behaviour between familiar sex partners, as a prelude to the woman waking and either being aroused to engage in intercourse, or not. On the basis that there was sufficient attraction between the appellant and AP for them to have taken part in consensual sex from time to time, sexual touching to some extent in circumstances as referred to above would be an unsurprising incident of their continuing intimate relationship. In my view a jury could not rationally find that, on the occasion in question, it was more likely the appellant would have sexually touched AP while she was asleep because he had touched other women, EM and FK, when sharing a bed with them and trying to interest them in sexual activity. Sexual touching of a sleeping bed partner of the opposite sex, for whom the person doing the touching has a physical attraction, appears to me to be such an unremarkable phenomenon that the probability of it having occurred on an occasion charged could not logically be increased by proof that it had occurred with one or more other bed partners on other occasions.

4. [74]

   In order to be significantly probative (as stipulated in s 97(1)(b) of the Evidence Act), a tendency to act in a certain way need not necessarily be striking or extraordinary. However, this case was of a type in which the probative value of the tendency evidence depended upon commonality of significant features of the acts committed against the tendency witnesses and the act alleged to have been committed against AP in count 1. In The Queen v Bauer the High Court said this at [57]-[59]:

5. [75]

   In the present appeal the Crown reiterated the learned trial judge’s analysis that there were “common features that [link] all three [ie AP, EM and FK] together” and that these made the tendency “highly probative in assessing whether he did in fact sexually assault each complainant/tendency witness as alleged” ([42]-[43] of the pre-trial judgment). The learned judge’s list of common features, relied upon by the Crown, is as follows:

6. [76]

   With respect, I do not accept point (1). The touching of FK was materially different from and less invasive than any of the touching of AP or EM. That includes comparison with the first uncharged incident described by EM, which involved the appellant pressing his penis against her, a feature not alleged by FK. The sexual contact in counts 1 and 2 was of an entirely different character from any of the uncharged instances and the degree and seriousness of contact differed considerably as between the two counts.

7. [77]

   The substance of point (2) is merely that the sexual acts alleged to constitute the tendency all involved females with whom the appellant was attempting to establish, or was carrying on, a sexual relationship. They were not strangers to him. The additional proposition included in this point, that two of the women “then indicated [their] lack of consent”, is not an aspect of the appellant’s acts or state of mind and it cannot be regarded as a feature of the tendency.

8. [78]

   Point (3) concerns the appellant’s conduct after committing acts alleged to exhibit the tendency. Such conduct is not a feature of the tendency itself.

9. [79]

   Point (4) is apparently intended to mean that all events took place in 2018 and 2019. That does not appear to add anything to the coherence or probative value of the tendency.

10. [80]

    Points (5) and (6) merely describe the setting of the incidents. The setting was inherent in the respective relationships between the appellant and each of the three women, as covered in point (2). The setting was not part of a chosen modus operandi that gave his conduct probative hallmarks.

11. [81]

    Taken all together these points amounted to nothing of probative importance. The only features common to the appellant’s conduct alleged in the tendency evidence and to what was alleged in count 1 were the bare facts of sexually touching a woman when he knew her to be asleep. There was no commonality of the manner of touching, or of the nature of the relationship between the parties, or of any other surrounding circumstance or notable feature. The acts that were said to demonstrate the tendency did not exhibit any distinctive, probative link either to each other or to the act charged in count 1. The requirement of s 97(1)(b) was not satisfied.

12. [82]

    Without the tendency evidence it would have been well open to the jury to accept AP’s evidence that the appellant touched her sexually while she was asleep, in circumstances from which the jury could infer that he must have known she was asleep. The propounding of the tendency, which in my view was incapable and superfluous for the purpose of proving any element of the offence, served only to introduce otherwise irrelevant and prejudicially damaging evidence of the appellant’s sexual conduct towards two other women.

13. [83]

    Formulation of the tendency in terms of touching “the body of an unconscious female” tended to obscure the frailty of the Crown’s claim that the tendency was probative. A practice of sexually touching a female who is unconscious in the commonly understood sense referred to at [225] above, for the purpose of deriving gratification in part from the fact of her unconsciousness, might well be regarded by a jury as notable and distinctive and probative of similar conduct on an occasion charged. But despite the language used to frame the tendency, the evidence did not establish any such significant common feature, only that the female concerned was, in each instance, asleep.

14. [84]

    If, contrary to my view, it should be thought that the Crown’s tendency had “significant probative value” with respect to any element of count 1, I would nevertheless conclude that the evidence should not have been received because such probative value would not outweigh “the danger of unfair prejudice to the defendant”: s 101 of the Evidence Act. Aside from the tendency, the case against the appellant on count 1 was weak with respect to knowledge of non-consent, taking into account the parties’ cohabitation and their otherwise consensual sexual relationship. If the evidence of EM and FK had some probative value for count 1 that I am unable to perceive, that evidence nevertheless carried a vastly disproportionate danger of causing the jury to disapprove of the appellant’s conduct towards women, in a way that might irrationally influence their findings of fact and their verdict.

15. [85]

    In particular, the evidence of EM presented the jury with an allegation that the appellant fully engaged in non-consensual sex with her, thereby taking advantage of her being asleep in a manner much more serious than what was alleged in count 1 itself. The tendency evidence of FK concerned sexual touching during sleep that was less invasive than what was charged in count 1 and was said to have occurred while the parties were, apparently, clothed. However, FK’s evidence introduced allegations of indecent assault contrary to repeated express refusal of consent, a feature that was not present in AP’s evidence on count 1. Adducing evidence of conduct that was more serious than count 1 in these respects, but which was uncharged so far as the trial of the appellant on that count was concerned, created a substantial danger of unfair prejudice.

16. [86]

    To expand my view that count 1 was weak with respect to the element of knowledge of non-consent, I note the following. In circumstances where AP was not drugged or for any other reason unrousable and there was no evidence that the appellant believed her to be in such a condition, if the jury were satisfied that he merely knew she was asleep it was at least open to them to have had a reasonable doubt that he knew she did not consent to the alleged sexual touching (referring to knowledge in the expanded statutory sense in s 61HE of the Crimes Act, as in force until 1 June 2022, thereafter renumbered s 61HK). The touching described by AP was of a kind that would normally wake a sleeping person. Objectively speaking, it was calculated to do so. It was of a kind and in circumstances (including that AP was asleep when the activity commenced) that the jury might well think would commonly occur between sexual partners, whether married or not, living together and sharing a bed and accustomed to engaging in consensual intercourse. It was consistent with foreplay such as might be undertaken by the appellant, as an accepted sexual partner of AP, seeking to arouse her from sleep and to interest her in intercourse.

17. [87]

    Consent in this context means free and voluntary agreement to sexual activity: see s 61HE(1) of the Crimes Act, as in force at the time of the two alleged offences (s 61HI(1) from 1 June 2022). As a matter of common sense there can only be consent to sexual activity if the “free and voluntary agreement” is operative at the time of the activity. Since 1 June 2022 s 61HI(1) has spelled that out in so many words, without adding anything to the common sense position. The Crimes Act did not in 2019, and does not now, exclude the giving of prospective consent to sexual touching as between sexual partners who are cohabiting in an ongoing intimate relationship.

18. [88]

    Of course, a person who consents to sexual activity with a partner on one occasion could not, by reason only of that fact, be taken to consent to further sexual activity with the partner on another occasion. (Section 61HI(6) now states that proposition expressly). In a continuing consensual relationship, such as that which subsisted between the appellant and AP up until the event charged, it would be possible for the respective partners to consent prospectively to sexual touching while asleep and for that consent to be manifested and communicated implicitly by conduct. Although an implication of consent could not arise solely from the fact of sexual touching on previous occasions, there is no reason why it could not arise from prior sexual activity in combination with other circumstances. If a female partner in an ongoing relationship has been woken by sexual touching on occasions during cohabitation, her responses might be such as to convey to the male that such contact while she is asleep, with a view to rousing her and ascertaining whether she wishes to engage in intercourse, is acceptable.

19. [89]

    An illustration is given by the evidence of EM that in her sexual relationship with the appellant over more than three months from August 2019 to mid-December 2019, it “used to be a very normal way for him to wake me up” that the appellant would touch her breasts and rub his penis against her bottom. EM did not say that during the months over which they commonly slept together and had intercourse she ever indicated to the appellant an objection to such pre-waking sexual contact.

20. [90]

    Evidence about the history of the relationship between the appellant and AP was not adduced to provide the foundation for an argument that she had, by conduct, impliedly consented to future sexual touching while asleep. No argument was made to the effect that the course of cohabitation gave rise to implied consent of AP to touching that might arouse her from sleep, either to become interested in intercourse or to reject the advance. However, the considerations discussed above could have led the jury to perceive a reasonable possibility that the appellant did not know AP would object if he should touch her sexually to prompt an indication whether she would take part in intercourse. The jury could equally have had a reasonable doubt as to whether the appellant was reckless, or whether he lacked reasonable grounds for belief that there was prospective consent to such touching.

21. [91]

    On count 1 the learned judge should not have admitted the evidence that was adduced for tendency purposes. The evidence of the two complainants was not cross-admissible and the counts should have been tried separately. My reasons for joining in the order made on 24 December 2024 to quash the appellant’s conviction on count 1 include that I would uphold ground 1 so far as it concerns that charge.

Grounds 2(a) and (b) – sexual intercourse with EM – second trial

1. [92]

   In the second trial, wherein the appellant was arraigned only on count 2 concerning sexual intercourse with EM without her consent, the evidence that had been given by AP, EM and FK in the first trial was replayed to the jury from video recordings. For reasons already given, the portions of FK’s evidence identified at [65] and [68] above were not relevant to proof of the tendency that the Crown relied upon. Those portions were not admissible for any other purpose. They were irrelevant and significantly prejudicial to the appellant with respect to count 2. Grounds 2(a) and (b) should be upheld in relation to count 2.

Ground 1 – sexual intercourse with EM – second trial

1. [93]

   In the second trial, on count 2, the formulation of the alleged tendency remained unchanged. The evidence adduced solely in support of it was EM’s description of the appellant touching her while she slept on an occasion prior to the commencement of their sexual relationship (summarised at [36] above), AP’s evidence of the indecent assault alleged in count 1 and FK’s evidence that on several occasions when the appellant shared her bed he sexually touched her while she was asleep.

2. [94]

   What I have already said regarding absence of significant common features across the events that were the subject of tendency evidence applies equally to demonstrate the lack of significant probative value of that evidence for the purposes of count 2. If anything, lack of probative value is more obvious in relation to this count. A jury could not rationally find that the likelihood of the appellant having proceeded unilaterally to commence intercourse with EM when he knew she remained asleep was increased by his tendency (if they found it proved) to engage in mere sexual touching with other sleeping partners (and with EM, in the uncharged event that occurred before she and the appellant commenced sexual relations).

3. [95]

   Again, if I have taken too stringent a view in concluding that the tendency evidence had no significant probative value, I would nevertheless conclude that it should have been rejected under s 101, upon weighing the danger of unfair prejudice against such minimal probative value as the tendency material might have contributed.

4. [96]

   None of the tendency evidence in the Crown’s case against the appellant on count 2 was properly admitted. Ground 1 should also be upheld in relation to that count.

Material impact of the errors identified in grounds 1, 2(a) and 2(b)

1. [97]

   The errors identified in the grounds that the appellant has made good each independently had an impact on the respective trials to the prejudice of the appellant. Each of the errors separately could realistically have affected the guilty verdicts. From what I have written to this point it will be apparent why I consider that to be so. So far as it may be necessary to identify material prejudicial impact in order to uphold the appeal on any of these grounds, I find that there was such impact.

Grounds 3 and 4 – miscarriage of justice and misdirections

1. [98]

   In view of my conclusions on grounds 1, 2(a) and 2(b) I have not found it necessary to reach a concluded view on ground 3 or ground 4 in relation to either count. Those grounds played no part in my having joined in the orders made on 24 December 2024.

Verdicts of acquittal rather than order for retrial

1. [99]

   An aggregate sentence of 6 years with a non-parole period of 3 years and 7 months was imposed for counts 1 and 2 and for the single count of committing an act with intent to pervert the course of justice (s 319 of the Crimes Act) to which the appellant pleaded guilty. Consequent upon this Court quashing the convictions on counts 1 and 2, by the orders of 24 December 2024, it was necessary also to quash the aggregate sentence.

2. [100]

   Up to the conclusion of the hearing of the appeal the appellant sought an order for retrial if any of his conviction grounds should be upheld. He did not to that point submit that verdicts of acquittal should be directed. However, at the time of making the orders on 24 December 2024 it appeared to the Court that discretionary factors may militate against a new trial. The Court cannot stop at quashing a conviction and leave the issue of retrial or acquittal unresolved: The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35 at [76]-[83] (Kiefel CJ and Keane J), [148] (Nettle and Gordon JJ) and [175]-[192] (Edelman J).

3. [101]

   The provisions of the Criminal Appeal Act 1912 (NSW) that are relevant to whether verdicts of acquittal should be entered in respect of counts 1 and 2 or whether the Court should order a retrial on either or both of those counts are as follows:

4. [102]

   As the Court had not heard from the parties, in particular the Crown, regarding the alternative of ordering verdicts of acquittal, additional orders were made on 24 December 2024 for written submissions to be provided on this issue and for it to be determined on the papers. Submissions were received from the Crown on 7 and 26 February 2025 and from the appellant’s counsel on 17 February 2025.

5. [103]

   In Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; [1984] HCA 48 the High Court construed s 14(3) of the Appeals Act 1972 (Nauru) as if the word “either” were transposed, so that the section would operate as follows (at p 629):

6. [104]

   Read in that way, the section was treated by the High Court as conferring a discretion with respect to directing an acquittal or ordering a retrial, as is provided for in s 8(1) of the Criminal Appeal Act. The principles stated by the High Court as to how that discretion should be exercised are equally applicable to s 8(1). The Court said this (at p 630):

7. [105]

   The admissible evidence given at the respective trials of the appellant was sufficiently cogent to justify his conviction on each count but in my view it would be unjust to the appellant to make him stand trial again. On the view that I take of ground 1, there would have to be two further trials because the evidence on the respective counts is not cross admissible. Even if both counts could be retried together I would consider further proceeding on the counts would be oppressive and unjust to him. The considerations to be taken into account on this issue have been listed and discussed in numerous authorities, including The Queen v Taufahema (2007) 228 CLR 232; [2007] HCA 11 at [49]-[60] (Gummow, Hayne, Heydon and Crennan JJ). Other useful authorities include Reid v The Queen [1980] AC 343; [1979] 2 All ER 904; R v Anderson (1991) 53 A Crim R 421 at 423 (Gleeson CJ); Gilham v R [2012] NSWCCA 131; 224 A Crim R 22.

8. [106]

   The appellant was charged in October 2020. He faced his first trial two years later, in September 2022, and suffered another year of delay up to his second trial in September 2023. During the last mentioned year the strain of pending proceedings was necessarily compounded by the fact that he had incurred one conviction and sentencing of him for that matter was adjourned until after the second trial. The drawn out process of two trials separated by a year has been followed by 15 months in custody pending determination of his appeal. It would be oppressive to subject him to what would likely be another year of uncertainty about the ultimate outcome, followed by another trial or possibly two trials back-to-back.

9. [107]

   On the question of whether retrial should be ordered, the appellant sought to rely upon a recent report of a psychologist with whom the appellant has consulted since his release from prison. The report sets out what the appellant has told the psychologist about his experiences in custody, the adverse effects of those experiences on his mental well-being, the negative impact of the protracted prosecution process on his career and personal life and his anxiety concerning the possibility of retrial and reincarceration. The Crown opposed that evidence being taken into account.

10. [108]

    The appeal papers include uncontested expert evidence in the sentence proceedings showing that the appellant had a difficult upbringing and was afflicted by consequent psychological disorders. The Court of Criminal Appeal hardly requires evidence beyond that in order to appreciate that a period of 15 months imprisonment would be a very harsh experience for a man of the appellant’s age and social background, with psychological vulnerabilities and no prior exposure to a general prison population. Judges of the Court are well aware, from experience at the bar and on the bench, that a drawn out process of prosecution is an ordeal for an accused person and that it takes a great toll on his or her progress in life, even if the end result is acquittal. Without evidence of these matters from the particular appellant, through his psychologist, I am able to determine the issue at hand in favour of acquittal rather than retrial. I find it unnecessary to resolve the contest over tender of the recent expert report.

11. [109]

    A second material consideration is that the quashing of the convictions has come about because the Crown erred in adducing the inadmissible and prejudicial evidence of FK that is the subject of grounds 2(a) and (b). The fact that the present situation arises from misjudgment of the prosecution, in tendering over objection evidence purportedly in support of tendency, reinforces the injustice to the appellant of trying him again. It is fair to say that these charges have put the appellant’s life on hold for more than four years, from the age of 28 in October 2020 to the age of 32 at the present date, including 15 months in prison. An extension of that to five years, to enable the prosecution to present a Crown case confined to admissible material, would be unreasonable and unjust.

12. [110]

    My conclusion that ground 1 should also be upheld adds to the Crown’s responsibility for the convictions having to be overturned. None of the tendency evidence should have been led and the counts should have been tried separately. The fact that the trial judge admitted the tendency evidence, on the Crown’s application, does not diminish this consideration. An error in the administration of justice with respect to the appellant’s case has put him through two mis-trials. If an order for retrial should be made he would be back at the stage of awaiting allocation of a date. In the context of the other factors considered here I regard that as unacceptable.

13. [111]

    The weakness of the Crown case on the issue of knowledge of non-consent, with respect to both counts, has been referred to earlier in these reasons. It is an additional factor favouring acquittal rather than retrial.

14. [112]

    It is well recognised that the public interest in the due prosecution and conviction of offenders must be carefully considered before the Court would decline to order a new trial. The relative seriousness of the alleged offending is important to an assessment of whether that public interest should prevail in a case such as the present where significant hardship to the successful appellant can be identified. All allegations of sexual offending have some measure of seriousness, particularly for the complainant. Relative gravity is reduced in the present case by the background of ongoing established sexual relationships. Each complainant had had sexual intercourse with the appellant consensually on multiple previous occasions, in EM’s case three times earlier on the same night. No force, let alone violence, was exerted against either complainant on the occasions that were charged. The appellant ceased what he was doing when told to do so. Each complainant was thereafter able to terminate her relationship with the appellant without significant conflict, let alone violence. All these considerations mitigate the degree of violation that is alleged and, hence the relative gravity of the charges. I do not consider that the public interest in securing jury verdicts on such allegations is so great that it should be allowed to outweigh the injustice to the appellant of putting him before a jury yet again.

15. [113]

    In R v Thomas (No 3) [2006] VSCA 300 the Victorian Court of Appeal expressed one of the considerations relevant to the question of acquittal or retrial in the following terms (at [27]):

16. [114]

    I do not consider that the Director of Public Prosecutions’ function would in any sense be usurped by the Court entering acquittals in the circumstances of this case. The Court exercises a power expressly conferred by the Criminal Appeal Act. According to the authorities, that power carries with it the responsibility of the Court to avoid oppression of a successful appellant. The responsibility is discharged upon an overall view of the course of proceedings in which criminal justice with respect to the relevant charges has been administered to date and may be administered if the matter progresses further. Where, as here, potential oppression is identified, the Court is in a supervisory position concerning the parts played by all other actors in the administration of justice, including the Director. The Court’s role in the matter is different from that of the Director and, in the present case, the entry of acquittals involves no usurpation.

Orders

1. [115]

   There should be verdicts of acquittal on counts 1 and 2. As the aggregate sentence was passed in respect of all three offences, it was a sentence for the pervert course of justice matter. The sentence was under appeal, not just on the sentence grounds for which leave was sought but also on the basis that the appellant sought to have it set aside consequentially upon his conviction appeal succeeding. It was, accordingly, quashed by order (5) made on 24 December 2024. In that indirect way the conviction appeal has enlivened the Court of Criminal Appeal’s jurisdiction to resentence for the pervert course of justice offence. I agree with Dhanji J that the appellant’s sentence on that count should be as his Honour has proposed, for the reasons he has given.

2. [116]

   I agree that the further orders of the Court should be those proposed by Dhanji J.

3. [117]

   DHANJI J:

Introduction

1. [118]

   By notice of appeal filed on 29 August 2024 Jack New sought leave to appeal against his convictions and the sentence imposed upon him in the District Court. The applications for leave and argument on the appeals were heard concurrently on 20 November 2024. At the conclusion of the hearing judgment was reserved. On 24 December 2024 this Court made the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the conviction with respect to count 1 on the indictment dated 7 September 2022.

   4. (4)

      Quash the conviction with respect to the single count on the indictment dated 21 October 2022.

   5. (5)

      Quash the aggregate sentence imposed by O’Rourke DCJ on 23 September 2023.

   6. (6)

      The question whether the Court should direct the entry of verdicts of acquittal on the counts in respect of which the convictions have been quashed or order a new trial on those counts is reserved for determination on the papers, following receipt of submissions from the parties.

   7. (7)

      Direct the Crown to file and serve written submissions on the question of whether there should be acquittals or a new trial by 7 February 2025.

   8. (8)

      Direct the appellant to file and serve written submissions on that question by 14 February 2025.

   9. (9)

      List the appeal before the Court on 28 February 2025 for the making of further orders.

   10. (10)

       The Court’s reasons for decision are reserved.

   11. (11)

       Pursuant to s 10 of the Bail Act 2013 (NSW) bail is dispensed with in respect of further proceedings against the appellant regarding sentence for the offence of doing an act on 29 October 2020 with intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900 (NSW) to which the appellant pleaded guilty on 17 October 2022.

   12. (12)

       Note that in consequence of the quashing of the aggregate sentence by order (5) and the dispensation with bail by order (11), the appellant is entitled to be released from the custody of Corrective Services forthwith.

2. [119]

   My reasons for joining in those orders are set out below. Leave having been granted I will refer to Mr New as the appellant. After setting out those reasons I will consider the remaining question of whether, consequent on the quashing of the convictions, an order for a new trial should be made pursuant to s 8(1) of the Criminal Appeal Act 1912 (NSW).

Background

1. [120]

   After two trials, the appellant was found guilty of the following offences:

   1. (1)

      That he, between 1st March 2019 and 5th April 2019, at Bellevue Hill in the State of New South Wales, did intentionally touch [AP] sexually without her consent and knowing that she was not consenting; and

   2. (2)

      That he, on or about the 14th day of December 2019, at Double Bay in the State of New South Wales, did have sexual intercourse with [EM] without her consent and knowing that she was not consenting to the sexual intercourse.

2. [121]

   The first offence was charged contrary to s 61KC(a) of the Crimes Act 1900 (NSW) (“the Act”) and the second against s 61I of the Act.

3. [122]

   The appellant was also charged with an offence of perverting the course of justice contrary to s 319 of the Act joined on the same indictment. On 17 October 2022, the appellant entered a plea of guilty to that offence. The pervert the course of justice offence was, as a result, severed from the indictment by consent of the parties. The appellant proceeded to trial on an indictment containing the two sexual offences.

4. [123]

   The trial counts relate to offences alleged to have been committed against the complainants, AP and EM respectively. Each was the girlfriend of the appellant at the time of the respective counts. The offence of perverting the course of justice relates to the appellant attempting to remotely delete the contents of his iPad after it was seized by police investigating the sexual offences.

5. [124]

   The appellant first stood trial in respect of the sexual offences before her Honour Judge O’Rourke SC and a jury between 5 September 2022 and 27 September 2022 (“the first trial”). The two matters were heard together on the basis that the evidence of each count was admissible with respect the other count. This was on the basis that the evidence of each complainant, together with the evidence of a further witness, FK, was admissible to prove that the appellant had a “tendency to act in a particular way, namely to intentionally touch the body of an unconscious female …”. The appellant objected prior to trial to the admission of the evidence for a tendency purpose. The admission of the evidence over that objection, and the directions subsequently given are at the centre of the conviction appeal.

6. [125]

   On 27 September 2022, the jury found the appellant guilty of count 1. The jury was unable to reach a verdict in respect of count 2.

7. [126]

   The sexual intercourse without consent offence was the subject of a further trial before the same trial judge and a jury between 4 September 2023 and 12 September 2023 (“the second trial”). The evidence given by AP, EM and FK in the first trial was replayed to the jury in the second trial pursuant to s 306I of the Criminal Procedure Act 1986 (NSW). On 12 September 2023, the jury returned a guilty verdict.

8. [127]

   While the indictment averred that the appellant knew in each case the complainant was not consenting, the jury was directed in accordance with the applicable definition of that term so as to include recklessness and an absence of reasonable grounds for belief the complainant was consenting. In the course of these reasons, I will similarly refer to the requisite mental state as one of knowledge, on the understanding that it incorporates the extended definition.

9. [128]

   On 4 April 2024, the appellant was sentenced for the three offences to an aggregate sentence of 6 years imprisonment with a non-parole period of 3 years and 7 months.

Grounds of Appeal

1. [129]

   The appellant appealed against his convictions on the following grounds:

2. [130]

   The appellant appealed against his sentence on the following grounds:

The conviction appeal: the nature of the appellant’s grounds and what must be established

1. [131]

   The appellant accepted that leave is required for each of the grounds of appeal on the basis that conviction grounds 1 to 3 involve a question of mixed law and fact (see s 5(1)(b) of the Criminal Appeal Act). In addition, conviction grounds 3 and 4 required leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) due to the absence of objection by defence counsel at trial.

2. [132]

   Subject to the grant of the necessary leave, to succeed on a particular ground an appellant must establish one of the three “limbs” of s 6(1) of the Criminal Appeal Act: unreasonable verdict, wrong decision on any question of law or that on any other ground whatsoever there was a miscarriage of justice. If he does so, his appeal may nonetheless be dismissed if this Court is satisfied that no substantial miscarriage of justice has actually occurred (the proviso).

3. [133]

   The appellant’s grounds asserted that “the trial judge erred” (in grounds 1 and 2(a)) in admitting evidence. The evidence was objected to prior to trial. The evidence given was essentially the same, or in one case less specific such that the case for inadmissibility was stronger. The evidence can properly be regarded as having been given over objection. The decision allowing that evidence was thus, according to the appellant, a wrong decision on a question of law, invoking the second limb of s 6(1).

4. [134]

   Grounds 2(b) and 3, by asserting miscarriage invoked the third limb of s 6(1) of the Criminal Appeal Act.

5. [135]

   Ground 4 asserted that particular directions “involved error”. In relation to this ground there was no objection or request for redirections. It might be doubted that this involved a “wrong decision” however the question is not settled.

6. [136]

   On the Crown’s argument as to the proper approach to the second and third limbs of s 6(1), there is, in effect, no practical difference, and hence no utility, for an appellant to establish a wrong decision on a question of law for the purposes of the second limb, as opposed to establishing an error or irregularity for the purposes of the third limb. That is because, whether a wrong decision of law, or error more generally, or an irregularity not amounting to legal error, the Crown submitted the appellant must show, in addition to the wrong decision, error or irregularity, that the decision, error or irregularity had a material impact. The submission is contentious, a matter that was not, but should have been, acknowledged by the Crown in argument. The issue is, in fact currently before the High Court in MDP v The King [2024] HCATrans 84 argued on 3 December 2024.

7. [137]

   Given the impending resolution of the issue I do not propose to engage in a lengthy analysis. For present purposes it is sufficient to observe the following.

8. [138]

   In Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 (at [18]) a miscarriage of justice for the purposes of the third limb of s 6(1) of the Criminal Appeal Act was described as “any departure from trial according to law, regardless of the nature or importance of that departure”. A similarly broad statement was made in GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40 (at [24]).

9. [139]

   The breadth of the above statements led to subsequent clarification. Putting to one side the case of an irregularity involving a failure of the kind sufficiently serious as to of itself be described as a “substantial miscarriage of justice”, (and thus exclude the operation of the proviso) the High Court has subsequently referred, using various formulations, to a requirement to show, for the purposes of third limb miscarriage, that the irregularity had an impact to the prejudice of the accused. Thus, in HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35 at [2], Gageler CJ, Gleeson and Jagot JJ referred to the need to show the irregularity was “prejudicial in the sense that there was a ‘real chance’ that it affected the jury’s verdict … or ‘realistically [could] have affected the verdict of guilt’… or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’”: referring to Zhou v R [2021] NSWCCA 278 at [22] (Beech-Jones CJ at CL). See also Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28 at [74] per Edelman and Steward JJ; Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 at [41] per Kiefel CJ, Keane and Gleeson JJ; [118]-[123] per Gageler J; and in this Court see Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16 per N Adams J at [120]-[141]; AW v R [2023] NSWCCA 92 at [48]-[51] per Mitchelmore JA (with whom Davies and Hamill JJ agreed).

10. [140]

    The Crown, in support of its submission, relied on Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [4]. There, French CJ, Bell, Keane and Nettle JJ said:

11. [141]

    The Crown’s submission, relying on the above, is that the need to find a “miscarriage of justice” at the second stage applies irrespective of whether the court is dealing with the second or third limb of s 6(1). This was accepted by this Court in Pandamooz v R [2023] NSWCCA 221 at [61]. What was said in Filippou at [4], however, must be read with the entirety of the reasons given by their Honours. Their Honours (at [13]) referred to the question under the second limb as being “whether the error constitutes a miscarriage of justice in the sense of a departure from trial according to law” citing Weiss v The Queen at [17]-[18]. Their Honours there appear to have endorsed the view that a “wrong decision of any question of law” is, of itself a miscarriage of justice because that being the result of a trial not conducted according to law (at least for the purposes of the second limb).

12. [142]

    There are various, disparate statements in a number of cases which bear on the question, a question which the High Court is now expected to resolve.

13. [143]

    Ultimately, in the context of this case, it is unnecessary to explore the matter further. That is because, for the reasons which follow, insofar as any grounds are established, the decision, error or irregularity was material in the relevant sense.

The factual background

1. [144]

   Having regard to the limited nature of the grounds of appeal (and the absence of any reliance on the proviso by the Crown in the event that any of the grounds were established), it is unnecessary to canvas the entirety of the evidence given at trial. Some background is however, required.

2. [145]

   At the first trial, each of AP and EM gave evidence in support of the counts relating to them. That evidence, in addition to being relied on as direct evidence of the count, was also relied on for a tendency purpose in support of the count against the other complainant. EM also gave evidence of an earlier incident of non-consensual sexual contact which was relied on as part of the tendency evidence. FK’s evidence was of a number of acts of touching of a sexual nature and also formed part of the tendency evidence. At the second trial AP’s evidence was relevant for a tendency purpose only. A summary of the evidence of AP, EM and FK is set out below.

3. [146]

   AP became friends with the appellant in 2018 and the pair developed a sexual relationship in August or September that year. They moved into an apartment together in February 2019. AP gave evidence that they did not have a happy relationship and would often argue about AP not being as intimate as the appellant would have liked.

4. [147]

   On an occasion in March 2019, AP went out drinking with a friend. She arrived home in the early morning to an empty apartment. She said she removed her pants and passed out horizontally across the foot of the bed. AP gave evidence that the next thing she remembered was waking up and feeling a weight on top of her body. At first, she thought she was dreaming. When she opened her eyes, she could see the appellant on top of her, with his face directly in front of the area of her chest and ribs. The appellant was touching AP underneath her shirt, on her breast and nipples. He was also touching her underneath her underwear, on her vagina. This conduct formed the basis for count 1 on the indictment at the first trial, that is, the sexual touching offence.

5. [148]

   AP could not recall for how long this occurred. She gave evidence that once she had properly woken up, she pushed the appellant away from her and asked him, “what are you doing? I’m asleep.” She said the appellant responded, “you are asking me to” (sic). The conversation went back and forth a couple of times. AP asked, “how could I? I’m asleep”, and the appellant responded, “no, you asked me to.” AP gave evidence that she felt very angry and upset and said she did not consent to the appellant touching her. She said she put on her pants and went for a walk outside.

6. [149]

   AP ended the relationship after the above incident.

7. [150]

   In the course of cross-examination, it was put to AP that the event had not occurred at all.

8. [151]

   On 14 December 2019, the appellant and EM stayed overnight at a hotel in Double Bay for EM’s birthday. They were in an intimate relationship at the time. They had dinner at the hotel before returning to their room, where they shared a bottle of champagne and two capsules of MDMA. After engaging in consensual intercourse twice, EM said she was tired and wanted a break. She rolled over onto her side and fell asleep. She said she awoke to the appellant having penile-vaginal intercourse with her. This is the conduct for the purposes of count 2 on the indictment at the first trial, being the sexual intercourse offence.

9. [152]

   EM said that when she awoke, she was lying on her stomach. She gave evidence that she froze initially and could not really say anything. At some point however, she started to say “stop” but was mumbling at first. She said when she was able to say it “clear enough” the appellant stopped. EM described having a traumatic reaction to what had occurred as a result of an event in her past. EM said she asked the appellant why he “had done that” and that he said he thought she “was there”. The following morning when the appellant attempted to engage in sexual activity with her again, she asked him why he had had sex with her while she was asleep, and he again repeated that he thought she “was there”.

10. [153]

    It was not suggested in cross-examination that the intercourse the subject of this charge did not occur. It was the appellant’s case, as put in cross-examination that the intercourse was consensual, or that he at least reasonably held that belief.

11. [154]

    In addition to the evidence of the counts set out above, the Crown relied on the following uncharged acts as part of a body of tendency evidence.

12. [155]

    EM gave evidence of an incident which she said occurred in July 2019 involving the appellant touching her without her consent. It was not the subject of any charge.

13. [156]

    This incident was alleged to have occurred prior to the appellant and EM entering into a relationship. EM gave evidence of having seen the appellant socially on a number of occasions. She gave evidence that in July 2019 the appellant invited her to his home for dinner. The appellant’s sister and her partner were also present however they left at some point while EM remained. EM had been drinking and smoking cannabis. She said she and the appellant were on his bed watching a movie when he asked if he could kiss her to which she said “no”. She said he was grumpy and suggested they turn the movie off and go to sleep. EM decided to stay and sleep in the appellant’s bed due to her intoxication.

14. [157]

    EM said she fell asleep fully clothed but woke up at some point in the morning, to the appellant lying behind her touching her chest and rubbing his penis against her “butt”. She said she initially was not sure if the appellant was awake so she tried to get away from him by turning onto her stomach. She said he continued, at which point she asked him what he was doing. The appellant said that his sister, through whom he met EM would not have a problem with it, and then said “I just really want to fuck you”. EM said she told the appellant she did not “want that”, and that she did not see him “like that”. EM said the conversation continued with the appellant saying that he wanted more than sex and would like to start a relationship with her. She said that would not make any sense because she was on a temporary visa and he was going to go to Japan for work, and that it would complicate things between the appellant’s sister and her.

15. [158]

    In cross-examination, it was put to EM that, after she and the appellant decided to stop the movie and go to sleep, they fell asleep with the appellant lying behind her but in physical contact with her. EM did not accept this to have been the case.

16. [159]

    Given the importance of FK’s evidence to my reasons it is set out in some detail. FK gave evidence that she first met the appellant at a bar in March 2018. They exchanged numbers for the purposes of the appellant helping FK to obtain work in the hospitality industry. They subsequently met up several times with groups of friends at different bars. FK said there were occasions when the appellant visited FK’s house or when she attended the appellant’s house. She said that the appellant would often stay over at her house after a night out.

17. [160]

    FK gave evidence that on the occasions she allowed the appellant to stay over in her bed it was on the basis that they were “just friends” and that she made it clear she was not consenting to any sexual activity. The following evidence was given with respect to a time after FK first met the appellant in March 2018:

18. [161]

    FK continued to socialise with the appellant, and on occasions when they were out and had been drinking, she and the appellant would kiss. She said that, while she continued to allow the appellant to sleep in her bed, she continued to make it clear she was not consenting to sexual activity. The following exchange occurred:

19. [162]

    And further:

20. [163]

    The above evidence was essentially consistent with what had been set out by FK in her statement, with the exception that, in her statement, FK, rather than describing the appellant simply pressing up against her, referred to him pressing his erect penis into her back. The ruling on the admissibility of FK’s evidence was based on the statement. I mention the difference to confirm my observation later in these reasons that the evidence ultimately given was more general than that set out in the statement.

21. [164]

    FK went on to give evidence she had consensual sex with the appellant on, according to her recollection, three occasions. The following evidence was given:

22. [165]

    Evidence was also given of a video call between FK and the appellant in which the allegation the subject of the sexual intercourse offence against EM was raised, as well as the relationship between FK and the appellant. Insofar as the evidence related to EM, it was admitted as an admission of the offence alleged against her (which, in turn, was relied on as tendency evidence). Insofar as the discussion related to the relationship between the appellant and FK, it was only relevant to the asserted tendency. The evidence in this regard was:

The application to rely on tendency evidence

1. [166]

   Before considering the grounds of appeal relied on by the appellant it is convenient to set out, in the context of the relevant provisions, the tendency sought to be proved and the pre-trial process by which the evidence was ruled to be admissible. An issue to be resolved is whether the Court must consider the admissibility of the evidence tendered on the pre-trial application in addition to the evidence ultimately adduced, or whether the issue of error is limited to the evidence led at trial.

2. [167]

   By notice dated 20 July 2022, but apparently served on 23 August 2022, the prosecution indicated its intention to rely on “tendency evidence”. This notice was given pursuant to s 97(1)(a) of the Evidence Act 1995 (NSW). Section 97(1) relevantly provides:

3. [168]

   Thus, the notice was given on the basis that the prosecution intended to adduce evidence of “the character, reputation or conduct of a person, or a tendency that” the appellant had, in order to prove that he had a tendency “to act in a particular way, or to have a particular state of mind”.

4. [169]

   The notice set out a number of matters, in purported compliance with Reg 5 of the Evidence Regulation 2020 (NSW). Having indicated it was the appellant’s tendency that was sought to be proved, the notice then stated:

5. [170]

   The appellant indicated his objection to the tendency evidence. The issue was separately determined prior to the appellant’s trial, presumably pursuant to s 192A of the Evidence Act. Argument proceeded on the basis that the ruling would resolve not only the question of admissibility but also any application for separate trials. The appellant in written submissions pointed out that the notice did not “identify with precision” the evidence said to support the tendency, the notice having simply referred to the entirety of the various witness statements. The Crown acknowledged this failing in response and set out a table in its written submissions. This table identified “the evidence” for the purposes of the question under s 97 of the Evidence Act. This was done by reference to particular paragraphs in the statements of AP, EM and FK.

6. [171]

   The appellant was arraigned before the trial judge on 7 September 2022 and the pre-trial argument with respect to the tendency evidence was heard on that date. As is usual, admissibility was determined on the basis of the statements of the tendency witnesses and such other evidence as was relevant to the argument in documentary form.

7. [172]

   The next morning, 8 September 2022, the trial judge gave her ruling stating “… in relation to the tendency evidence I find that it satisfies being significantly probative and satisfies s 101, and that is in accordance with what the Crown was proposing … in accordance with those paragraphs set out [in the table in the Crown submissions]”. Her Honour indicated that she would give reasons “in the next few days”. The jury was then empanelled, and the appellant’s (first) trial commenced.

8. [173]

   Her Honour’s approach in giving a ruling and providing reasons later is understandable in the circumstances where the appellant’s trial was ready to proceed before her. The pressure on her Honour to give a ruling in advance of reasons was, however, unfortunate as, in a case where there is a degree of complexity, giving a ruling in advance of reasons carries an inherent danger. Doing so denies the possibility that, in the formulation of reasons, a different result may be revealed: see, for example, AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [108].

9. [174]

   As observed above, the tendency asserted by the prosecution was the appellant’s tendency to intentionally touch the body of an unconscious female (unconscious because the female was sleeping or highly intoxicated and/or drug affected) with his hands and/or penis.

10. [175]

    Before turning to the grounds of appeal it is convenient to deal with an issue with respect to the meaning to be given to the tendency as expressed in the Crown’s notice. The appellant submitted that the generality of the alleged tendency was such as to diminish its significance in proof of the charges, necessarily impacting on the question of whether the evidence in support of the tendency had “significant probative value”.

11. [176]

    It can be accepted that the terms of the tendency sought to be proved were broad. It is not clear why the notice added the potential reasons for the state of unconsciousness, being that the person was either asleep or intoxicated. It did nothing to narrow the tendency. More pertinently, read literally, the tendency would include an attempt to rouse a sleeping woman by shaking her shoulder. Additionally, in the appellant’s submission, while the tendency alleged intentional touching, it said nothing about the appellant’s state of mind as to whether the woman was unconscious. That is, it was submitted the intention referred to in the notice was simply an intention to touch, not an intention to touch the person while they were unconscious.

12. [177]

    The notice was not, given its potential breadth, a model of drafting. Read at its broadest it is difficult to see how such a tendency could have significant probative value in proof of the allegations against the appellant. It is clear, however, that that is not how the notice was understood. The written submissions in reply provided to the trial judge on behalf of the appellant on the pre-trial argument, stated:

13. [178]

    It can be seen from the above that it was understood the tendency was to touch in a sexual fashion. So much was plain from the nature of the evidence relied on in support of the tendency.

14. [179]

    It is also, in my view, clear that the word “intentionally” was understood to qualify both the touching and the fact that the woman was unconscious. That is, the tendency alleged was to sexually touch unconscious women knowing they were unconscious. A tendency to touch the body of an unconscious female necessarily implies knowing that the person was not conscious. It was the tendency of the appellant to behave in a particular way that was in issue. A tendency to touch women who happen to be unconscious is bordering on meaningless. Absent the appellant’s awareness the woman was not conscious the asserted tendency would essentially be a tendency to touch women in a sexual manner (including two with whom he was in a relationship). There was no suggestion at trial that the tendency might be understood in this way.

15. [180]

    It is regrettable that this Court is in the position of analysing the tendency notice with a view to determining the tendency sought to be relied on. Clear articulation of the tendency sought to be proved is the cornerstone for the determination of whether the evidence is admissible for a tendency purpose. In response to a not dissimilar situation, in TL v The King (2022) 275 CLR 83; [2022] HCA 35 the High Court said (at [33]):

16. [181]

    While the drafting of the notice is not to be condoned, to the extent that the appellant sought to make good his argument on the basis of a broad reading of the notice, given the manner in which the notice was understood at trial, I do not accept the argument.

17. [182]

    The proper approach to the determination of the admissibility of the tendency evidence is to take it at its highest. In doing so, it is not necessary that the evidence establish the fact it is led to prove. As the High Court explained, in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 (at [44]-[45]):

18. [183]

    It was submitted with respect to the evidence in the present case that it was unclear whether the tendency witnesses were unconscious at relevant times, or simply suffering from a blackout or lack of memory. It can be accepted that the absence of memory with respect to a period of time, particularly where the person has consumed alcohol or other drugs, does not establish that the person was unconscious during that period. Here however, the tendency witnesses gave versions indicating an awareness of waking up from sleep. While there was room to question the accuracy of this awareness, it was not incapable of acceptance. Indeed, if the evidence was not capable of establishing the relevant complainant was unconscious at the time of the charged act, the evidence would not be capable of sustaining the counts against the appellant. There was no suggestion on the appeal that this was the case.

19. [184]

    The appellant also submitted that the evidence was equivocal as to the appellant’s awareness that the witnesses were unconscious at the times they said they were. It is not enough that the evidence was equivocal. Taking the evidence at its highest, there was evidence capable of sustaining the inference that the appellant was aware the tendency witnesses were unconscious at relevant times.

20. [185]

    The evidence is thus to be considered on the basis that the events asserted by the witnesses occurred as indicated by them, in circumstances where the appellant knew that the witness was unconscious at the relevant times.

What is the “the tendency evidence” on which this Court should rule?

1. [186]

   Admissibility pursuant to s 97 of the Evidence Act is dependent on notice having been given of the intention to adduce “the evidence” and “the evidence” having significant probative value. The evidence in this regard is generally taken to be, as it was here, the entirety of the evidence sought to be relied on to establish the asserted tendency. That evidence is to be considered with other evidence to be adduced in the trial to determine its probative value. That does not, of course, mean that the whole of the “tendency evidence” is necessarily admissible or inadmissible. It may be that part of the evidence is admissible and part of the evidence is not. Where objection is taken to tendency evidence, it will generally be assumed that the objection is to both the whole and the constituent parts of the evidence. In the context of an appeal, it is necessary to determine whether all the evidence that was admitted was admissible. The dissenting judgments in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 provide an example of this approach.

2. [187]

   A further question arises as to the identification of the tendency evidence to be reviewed by this Court. The ruling in relation to the evidence was, as noted above, based on the statements of the witnesses. Her Honour did not decide that the actual evidence given on the pre-trial application was admissible. Clearly it was not. That evidence, in the form of statements, was hearsay, in circumstances where there was no suggestion there was any consent to the evidence being led in that form at trial. Rather, the statements were no more than an indication of the evidence it was anticipated would be led and provided a convenient means by which the issue of admissibility (and separate trials) could be efficiently resolved. Her Honour’s decision was that the witnesses could give the evidence indicated in their statements.

3. [188]

   The appellant, nonetheless, submitted that it was necessary for this Court to consider the correctness of the trial judge’s ruling on the admissibility of the anticipated evidence as well as the admissibility of the evidence actually given. He submitted that the pre-trial ruling was a “wrong decision of [a] question of law” within the second limb of s 6(1) of the Criminal Appeal Act and that review of this decision necessarily requires consideration of the evidence which, by that ruling, was determined to be admissible. His first ground of appeal, consistent with this contention asserts the trial judge “erred by admitting” the evidence, which is a complaint within the second limb of s 6(1) of the Criminal Appeal Act. The issue is made explicit in the context of ground 2, where, by ground 2(a), the appellant makes a complaint that the trial judge “erred by admitting the entirety of FK’s evidence” by reference to the contents of FK’s statement and by ground 2(b) asserts that a “miscarriage of justice was occasioned because the evidence FK gave at trial was not ruled inadmissible and withdrawn from the jury”.

4. [189]

   The appellant’s position is supported by a number of decisions of this Court. In R v Fletcher (2005) 156 A Crim R 308; [2005] NSWCCA 338, Simpson J said (with the concurrence of McClellan CJ at CL) (at [36]-[38]):

5. [190]

   In making the above observations, Simpson J did not deny the need to additionally consider whether the admission of the evidence in fact given resulted in a miscarriage of justice. Rather, her Honour was clear that the issue arose at both stages.

6. [191]

   Subsequently, in Col v R (2013) 237 A Crim R 67; [2013] NSWCCA 302 (at [35]) Latham J (with whom Rothman and Davies JJ agreed) said:

7. [192]

   A similar observation was made in Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303 per Bathurst CJ, Hoeben CJ at CL and Simpson J at [165], a decision to which I will return.

8. [193]

   The understanding of the nature of the exercise on appeal with respect to a challenge to the admissibility of tendency evidence at the time of Fletcher, Col and Elomar was different to that which now pertains. In Fletcher, Simpson J referred to the nature of the determination to admit tendency evidence as an exercise that did not yield “one correct answer”. Her Honour described it as an exercise on which “reasonable minds will, on occasions, arrive at different results” the import being that it may be that neither are wrong. It followed from this conceptualisation of the nature of the exercise that the appellant would need to show House v The King (1936) 55 CLR 499; [1936] HCA 40 error. That is, an appellant was required to establish that the primary judge either mistook the facts, made an error of principle, or the decision ultimately made was one that was not open in the sense that the result itself was unreasonable so as to allow the appellate court to infer that some error of principle must have been made.

9. [194]

   Subsequent to the decisions referred to above, however, the High Court in The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 clarified that while the exercise may involve an evaluation, there is only one correct result (at [61]). In Hughes v The Queen, the majority (at [42]) acknowledged that the exercise is one where reasonable minds might differ with the result that an appellate court required to consider the matter for itself may take a different view. Their Honours, in this context, counselled a conservative approach to the tender of evidence for a tendency purpose in borderline cases (at [42]).

10. [195]

    Where review was understood to be limited to House v The King error, the importance of reviewing the reasons for the admission of the evidence is clear. In circumstances where it might have been considered “open” to admit the evidence given in the trial, the appellant could only succeed by establishing error of fact or principle in the decision to admit the (anticipated) evidence, even if the appellate court would not have admitted the evidence if considering the matter for itself. Given the present understanding of the exercise, however, it is difficult to see the utility in establishing error in the reasons determining admission. If, despite the error, the decision was nonetheless correct, absent some unusual feature it is presently difficult to predict, the ground will fail on the basis there has been no miscarriage of justice (should this need to be established, noting the discussion above in relation to s 6(1) of the Criminal Appeal Act), or at least no substantial miscarriage of justice. If, on the other hand, despite the absence of any patent error of fact or principle in the reasons given admitting the evidence, the evidence the subject of the pre-trial ruling was not admissible, then the appeal will not necessarily succeed. It will remain necessary to consider the evidence ultimately given, as this will impact the issues of miscarriage (if relevant) and substantial miscarriage.

11. [196]

    Obviously, if the witnesses ultimately give evidence in accordance with those parts of their statements determined to be admissible for a tendency purpose, no question of difference arises. In the nature of things, precise correlation between witness statements and evidence is unlikely, although commonly there is no difference of substance. That said, the evidence ultimately given may be either more or less probative of the asserted tendency.

12. [197]

    Where the evidence ultimately given is weaker than the anticipated evidence which formed the basis of the ruling, it is possible that there will have been no error in the ruling but that the evidence ultimately given was inadmissible. This circumstance may mean that there was no error within the second limb of s 6(1) of the Criminal Appeal Act in the decision to admit the evidence, but that there has been, nonetheless, a miscarriage of justice within the third limb on the basis of the admission of inadmissible evidence: see Hughes v The Queen at [42]. Of course, such an event may also lead to the decision to admit the evidence being reopened: see Dao v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [13]. In such circumstances, an application to have the evidence withdrawn, or to discharge the jury, if wrongly refused will result in second limb error.

13. [198]

    In the present case, with respect to the evidence of FK, the evidence ultimately given was less specific than that which had been forecast in the statement, and consequently less probative of the asserted tendency. It was not suggested by either party that the evidence actually given by either AP or EM was any more probative or less probative of the asserted tendency than that contained in their statements tendered on the application. In these circumstances, having regard to the variation in FK’s evidence, the appellant’s case that the evidence was inadmissible is stronger with respect to the evidence actually given. (I describe the evidence as “inadmissible” on the basis that, while the evidence given did not precisely reflect the evidence on the pre-trial argument, it is still properly regarded as being given over that earlier objection: cf R v Perish (2016) 92 NSWLR 161; [2016] NSWCCA 89 at [261]-[269]).

14. [199]

    Where the evidence ultimately given is more probative of the asserted tendency, it is possible the pre-trial ruling was in error, but the evidence ultimately given was admissible. That was not suggested to be the case here, and it is consequently unnecessary to express a final view on the question. Nonetheless, in my view, the admissibility of the evidence in fact given should be the focus. There may, in such a case, be a question as to admissibility based on the failure to give the notice required by s 97(1)(a) and Reg 5. Putting the notice issue to one side, in such a case, while it might be argued that had the pre-trial ruling been correct, the evidence would never have been given, it is not easy to see how the proviso would not be applied in this situation. That is, even if the error could be described as a “wrong decision of any question of law”, it is difficult to see how the error could defeat a finding that there had been no substantial miscarriage of justice: see Decision Restricted [2022] NSWCCA 246 per Beech-Jones CJ at CL at [4].

15. [200]

    None of the above is to deny that it remains necessary to bring an appropriate discipline to framing grounds of appeal by reference to the three limbs of s 6(1) and the point of the trial to which the ground is directed. In Elomar, Bathurst CJ, Hoeben CJ at CL and Simpson J referred (at [165]) to the need to determine error based on what was before the judge at the time of the impugned decision and said (at [166]-[167]):

16. [201]

    More recently (and importantly, after The Queen v Bauer), Kirk JA in Decision Restricted [2022] NSWCCA 246 referred to the above statement and noted the potential impact of identifying an error of law in a pre-trial ruling as opposed to a miscarriage of justice as a result of the evidence actually given on the requirement for leave pursuant to s 5(1) of the Criminal Appeal Act, leave not being required with respect to “a question of law alone”. As his Honour acknowledged, this question is not straight-forward. It is perhaps less straight-forward in the context of tendency evidence where the admissibility of the evidence is to be considered in the context of all the evidence to be adduced by the tendering party, potentially muting the significance of identifying a wrong decision rather than a miscarriage. Putting to one side technical complexities, however, it would, in my view, be an unusual case in which, in the context of the wrongful admission of tendency evidence, the requirement for leave under s 5(1) was determinative.

17. [202]

    While not arriving at a conclusion on the issue, after a discussion of the authorities Kirk JA expressed the view that the change of approach brought by The Queen v Bauer does not necessarily assist with identifying the evidence on which the question of admissibility is determined, stating (at [63]), “[t]hat there is only one correct answer to these questions does not determine the evidence by reference to which the answer is to be found”. In coming to this view his Honour doubted the correctness of what was said in Vagg v R [2020] NSWCCA 134 at [45], by Simpson AJA (with the agreement of Rothman and Adams JJ), insofar as her Honour might be understood as stating that a complaint of second limb error might be determined by the evidence actually given. What her Honour said was:

18. [203]

    The logic of the earlier decisions such as Fletcher and Elomar cannot be faulted. The same point was again made more recently in Burns-Dederer v R [2023] NSWCCA 191 at [48], per Simpson AJA, with the agreement of Fagan J and myself. I also accept, as Kirk JA points out, the nature of the complaint might potentially have implications for the need for leave. But my view is that it is necessary to focus on what is actually in issue. A determination of the admissibility of evidence that was never actually admitted is likely to be inutile, at least in the ordinary case, and will, in any case, certainly not obviate the need to consider the evidence actually given. I would read Simpson AJA in Vagg as taking an approach to an unsuitably formulated ground of appeal that recognised this reality. Thus, in my view, having regard to the clarification brought by The Queen v Bauer, resolution of complaints as to tendency evidence, absent some unusual feature, should be concerned with the evidence actually admitted. It may be the issue is most easily resolved by proper attention being given to the framing of appeal grounds directed to that evidence, what was said in Elomar above remaining relevant in a new context; and see Decision Restricted [2022] NSWCCA 246 per Beech-Jones CJ at CL at [5].

19. [204]

    Returning to the present case, as noted above, ground 1 complains of error of law. The second ground of appeal is split so as to capture both error of law in the admissibility ruling and miscarriage based on the evidence actually given. The argument in each case is the evidence was inadmissible in the sense that the conclusion was wrong, not that there was some patent error in the process of determination. Given this, and that the evidence at trial supporting the asserted tendency was weaker (due to the change in FK’s evidence) the practical solution is to put to one side in the first instance the framing of the ground and proceed based on the evidence given at trial (as was done in Vagg). In the event that the evidence given was admissible, the grounds must fail, given the evidence on which the trial judge ruled was stronger, and thus, in this circumstance, necessarily, admissible. If the evidence was not admissible, determination of ground 1 may require that consideration be given to what impact the terms of the appellant’s grounds should have on the resolution of the appeal. The terms of ground two are sufficient to capture both error and miscarriage.

20. [205]

    I propose then, to consider the grounds having regard to the evidence actually admitted in proof of the asserted tendency.

Ground 1: the trial judge erred by admitting evidence that the appellant had a tendency to act in a particular way, namely, “to intentionally touch the body of an unconscious female (unconscious because the female was sleeping or highly intoxicated) with his hands and/or his penis”

1. [206]

   This ground of appeal complains that the trial judge erred by “admitting evidence of the appellant’s tendency to intentionally touch the body of an unconscious female”. In the manner in which the appeal was argued, this ground attacked the admission of any of the evidence for a tendency purpose – that is, none of the evidence identified as supporting the tendency should have been admitted. I proceed to determine the ground on this basis, noting that it will be necessary in due course to determine ground 2 which attacks a subset of the evidence.

2. [207]

   To be admissible, the evidence must pass the tests in both s 97(1) and s 101(2) of the Evidence Act.

3. [208]

   Section 97(1) has been set out above. There is no issue with notice having been given. The question, for the purposes of s 97(1), is whether the evidence, either by itself or together with other evidence, has significant probative value.

4. [209]

   The starting point for the probative value of the evidence is the extent to which the evidence could rationally affect the probability of a fact in issue: Evidence Act, Dictionary; Hughes v The Queen at [16]. The use of the word “could” requires, as discussed above, the evidence to be taken at its highest. In a criminal case, the facts in issue are those which establish the elements of the offence: Hughes v The Queen at [16].

5. [210]

   The issue is whether the tendency evidence, “together with other evidence makes significantly more likely any facts making up the elements of the offence charged”: Hughes v The Queen at [40]. In assessing this, the majority judges in Hughes v The Queen said (at [41]):

6. [211]

   In TL v The King, the High Court said (at [28]-[29]):

7. [212]

   Section 101 of the Evidence Act provides:

8. [213]

   In Hughes v The Queen the majority said, with respect to this provision (at [17]):

9. [214]

   The matters to be proved by the Crown against which the probative value of the tendency was to be assessed were:

   1. (1)

      Whether the appellant deliberately acted as alleged;

   2. (2)

      Whether the complainant was consenting; and

   3. (3)

      The appellant’s knowledge (in the extended sense) of the complainant’s lack of consent.

10. [215]

    At the time of the pre-trial argument, it is not clear that the appellant had made his case known. By the time AP was cross-examined it was apparent the appellant’s case was that the event did not occur. By the time EM was cross-examined it was apparent that the appellant’s case was that the act of intercourse occurred but that it was consensual.

11. [216]

    Properly understood, however, in the context of a criminal trial, the appellant’s “case” was that the Crown had not proven the offences beyond reasonable doubt. Having regard to the onus of proof, the accounts of the complainants, and the entirety of the cross-examination, it remained necessary for the jury to determine whether, in addition to determining that the event the subject of the particular count occurred, in each case the complainant was unconscious and therefore not consenting, and the appellant’s knowledge as to this. This was particularly so in light of the evidence given by each of the complainants that, on waking and questioning the appellant, he indicated that the complainant had not been unconscious (and, in the case of AP, he was doing as he was asked).

12. [217]

    In the case of the offence alleged against AP, it was entirely possible that the jury may, contrary to the questions asked in cross-examination, have accepted that the event the subject of that count occurred but not been satisfied that the contact was not consensual or that the appellant knew it was not consensual. This is particularly so in circumstances where the appellant did not give evidence such that his case was made apparent only through the questions put in cross-examination. In these circumstances, I do not accept there should be a narrow view taken of the facts in issue based simply on that questioning.

13. [218]

    In the case of the offence alleged against EM, given there was no dispute as to the occurrence of the act of intercourse alleged, and no alternative possibility presented itself on the evidence, it was possible to proceed on the basis that the act would be accepted by the jury. On this basis, it can be accepted, putting to one side when this was known, the tendency evidence did not possess significant probative value as to the fact of intercourse: Stubley v State of Western Australia (2011) 242 CLR 374; [2011] HCA 7 at [65]. This does not impact the admissibility of the evidence for a tendency purpose provided it had the necessary quality with respect to other facts in issue.

14. [219]

    Further, and relevant to counts 1 and 2, there was no issue that the appellant had, at the relevant times, an interest in sexual contact with the complainants and with FK. Not unlike the situation in Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, it can be accepted that the appellant’s interest (and presumably his preference) extended to consensual sexual contact. The tendency did not, therefore, make it more likely that he would engage in the physical acts charged. This conclusion is (somewhat unnaturally) dependent on viewing the act as divorced from the complainant’s state of consciousness.

15. [220]

    The appellant relied on Phillips v The Queen with respect to the limits of what the appellant’s sexual interest in the complainants and FK could prove. Phillips v The Queen was decided in the context of the common law. The provisions of the Evidence Act substantially altered the common law in this area: Hughes v The Queen at [13]. The Evidence Act did not, of course, alter the rules of logic. But it is important to understand the impermissible reasoning identified in Phillips v The Queen. The difficulty identified in Phillips v The Queen was the use of improbability reasoning to prove a lack of consent: Phillips v The Queen at [43]-[50]. Similarly here, proof that AP was unconscious did not make it more or less likely that EM was unconscious. A tendency on the part of the appellant to sexually touch unconscious women, however, made it more likely that the appellant did touch both AP and EM in the manner they alleged.

16. [221]

    On the facts of the present case, the complainants’ lack of consent was reasonably likely to have been plain from their lack of consciousness. That a person with whom each respective complainant was in a relationship, with the attended care that that entails, would have sexual contact with her in that state is inherently unlikely. Thus the reasoning obtains its force not by reasoning from the complainant’s state of mind, but by reasoning from the appellant’s act: cf Phillips v The Queen at [46]. The evidence that the appellant had a tendency to sexually touch women while they were unconscious, by permissible inductive reasoning, made it more likely that he did so on the occasions alleged in the counts.

17. [222]

    Of course, to be admissible, the tendency evidence must be more than relevant for a tendency purpose. Section 97(1)(b) requires the court to measure the degree to which it is relevant in accordance with the two steps identified in Hughes v The Queen.

18. [223]

    The tendency alleged suffered from a degree of generality. It can be contrasted with, for example a tendency to sexually touch unconscious women in a particular way, or a tendency related to persons with whom he was in a particular relationship. Such generality was of course necessary, given the different acts the subject of the tendency evidence and the intention to rely on the uncharged acts against EM and FK when the appellant was not in an intimate relationship with those witnesses at the relevant time.

19. [224]

    In the circumstances of the present case, the probative value of the tendency evidence can best be considered by assessing what the evidence added to the prosecution case. (See, for example, Hughes v The Queen at [59]-[60].)

20. [225]

    In relation to both count 1 and count 2, the appellant was, at the time of the event, in a relationship with the complainant which involved consensual sexual activity. AP and EM both gave evidence that they awoke to find the appellant engaging in sexual activity to which they had not consented.

21. [226]

    The Crown was required to prove in each case that the complainant was not consenting and that the appellant knew she was not consenting. Each count, when viewed as a single event, suffered a particular weakness. The evidence of both complainants was that, on becoming aware of the physical act and raising an objection with the appellant, the appellant immediately asserted his belief (in effect) that the complainant was a willing participant. Four aspects of the context in which the appellant made this assertion are important. Firstly, the complainant was the only witness to the event. Secondly, the complainant and the appellant had previously engaged consensually in activity of the type alleged in the counts. Thirdly, the complainant was intoxicated by alcohol and/or drugs. Fourthly, the complainant was a person with whom the appellant was in a relationship (and supposedly cared for and would not be likely to sexually touch if she was in fact unconscious). These circumstances raised the very real possibility that while the complainant may have honestly believed herself to have been unconscious, she was mistaken and had in fact suffered a loss of memory.

22. [227]

    The analysis above applies to both counts, despite the appellant’s case being different with respect to each count. As discussed above, in relation to AP, despite the cross-examination suggesting the event did not occur, it would have been open for the jury to accept that the event occurred but not be satisfied the complainant did not consent, or, if she did not, that the Crown had proved the requisite state of mind on the part of the appellant. This was particularly so in circumstances where the appellant did not give evidence.

23. [228]

    In the above circumstances, a tendency to sexually touch unconscious women had significant probative value.

24. [229]

    The level of generality of the tendency alleged has an impact on the evidence required to prove that tendency. Had, for example, the evidence been limited to two occasions on which it was asserted the tendency manifested in physical contact, given that generality, a question would undoubtably arise as to the capacity of the evidence to prove the tendency.

25. [230]

    As discussed, the evidence given by FK at trial was less specific than that which had been anticipated at the time of the ruling on admissibility. However, despite FK not describing the appellant’s penis as pressing into her back, contrary to the appellant’s submission, her evidence was capable of being understood as involving an intentional sexual touching by the appellant. She said that the appellant “often would press up against [her] while [she] slept”. More pertinently, FK also gave evidence describing the conduct as “he would press up against me while I slept and touch my body and try to initiate sex”. She also said that she would “move away or say ‘no’ and then move away”, a response more consistent with a sexual touching, given their friendship. FK’s evidence, considered in its entirety, suggested intentional sexual touching.

26. [231]

    Thus, the evidence of each of AP, EM and FK had at least the capacity to establish that each complainant regained consciousness to find the appellant touching her in a sexual manner. If that evidence was accepted the inevitable inference to be drawn was that the appellant sexually touched them while they were unconscious. EM gave evidence of two separate occasions. FK was not specific as to the number of occasions on which conduct of the type she described occurred. Her evidence was that the appellant would “often” act in the manner she described. Taking FK’s evidence as, conservatively, more than once, there was thus evidence of at least five separate occasions in a period of one year and nine months (March 2018 to December 2019) where the evidence suggested the appellant conducted himself in accordance with the asserted tendency.

27. [232]

    FK also gave evidence, admitted as part of the tendency evidence, of the appellant persisting in his conduct after she awoke. This part of the tendency evidence is the subject of ground 2 and will be considered in that context. For the purposes of this ground, consideration will be limited to the evidence of the witnesses that the appellant touched them in a sexual manner while they were unconscious.

28. [233]

    There was some dissimilarity in the sexual acts relied on, in part leading to the generality in the asserted tendency. As was established in Hughes v The Queen, similarity between the acts is not required by s 97(1) though it will commonly be present: see at [39]. Further, this was not a case involving proof of the identity of the offender for a known offence where proof of close similarity will ordinarily be required: Hughes v The Queen at [39]; cf TL v The King. Further, there was a degree of similarity between the events in that all occurred when the appellant and complainant were willingly sharing a bed. I include the incident involving AP in this assessment where the bed was shared due to their relationship, albeit the appellant was not present when AP fell asleep. The evidence of the occasions that the appellant acted in conformity with the asserted tendency, viewed together, made it more likely the appellant possessed the tendency alleged.

29. [234]

    Based on the above, the evidence made it more likely that the appellant possessed the tendency and therefore more likely that he acted on it on the occasions alleged in the counts. It must be acknowledged that, as Gageler J (as the Chief Justice then was) said in Hughes v The Queen, “how much more likely is not easy to tell, in part because common experience provides no sure guide, and the abhorrence any normal person naturally feels for such a tendency highlights the risk that any subjective estimation of the likelihood will be greater than is objectively warranted”.

30. [235]

    The risk of overestimation is, of course, at the heart of the problem and the basis for entrusting the evaluation of the probative value of the evidence to the trial judge in the first instance. While “common experience” provides no sure guide, the need to make my own evaluation of human conduct is unavoidable. The sexual touching of an unconscious person to the extent alleged and in the particular circumstances, is, in my view, unusual, at least in the absence of any evidence of a pre-existing understanding that the conduct was within, or even proximate to, the bounds of what the parties were content with in the context of their relationship. The inference to be drawn from the evidence of AP and EM was that there was no such understanding. Given this, the extent of the touching with respect to AP and EM went beyond anything that might be regarded as normal contact in the context of a pre-existing sexual relationship. The touching of FK was not as extreme, however the appellant’s relationship with FK was not the same as it was with AP and EM at the relevant times. The appellant was not in an ongoing sexual relationship with FK and she had made her lack of consent clear. I am of the view that the evidence strongly supported the existence of the asserted tendency and the existence of such a tendency added significant strength to what would have otherwise been a weak Crown case. The tendency evidence made “more likely, to a significant extent, the facts” that the Crown was required to prove: R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306, set out in Hughes v The Queen at [40]. The evidence satisfied s 97(1) of the Evidence Act.

31. [236]

    As McHugh J observed, the weighing of the probative value of evidence against its prejudicial effect involves the weighing of incommensurables: Pfennig v The Queen (1995) 182 CLR 461 at 528; [1995] HCA 7 at [39]. Nonetheless, an assessment must be made. This involves assessing the capacity of the evidence to prove, on the basis of the asserted tendency, a fact or facts in issue, the risk of the evidence being used against the accused on some other basis and applying those results to what might be considered a type of cost/benefit analysis.

32. [237]

    The appellant submitted on appeal that the risk in this case was that the jury might reason that the appellant, by intentionally sexually touching an unconscious woman, was guilty, irrespective of whether he was aware the complainant was unconscious. It is true that, because the appellant may have touched an unconscious woman on one occasion, that did not establish that on some other occasion a woman whom the appellant touched was unconscious, or if so, that he knew her to be unconscious. The jury was directed in each case (and the evidence was admitted on the basis that the jury would be so directed), that they needed to be satisfied of each of the elements of the offence. That they may be more readily satisfied of the elements as a result of the tendency did not mean that the jury would not separately assess the elements of each offence. While there was a risk that the jury might reason in the manner suggested, I do not regard that risk as significant.

33. [238]

    The appellant also submitted that there was a risk that the jury would engage in impermissible coincidence reasoning. That is, the jury might reason that, because of the similarities between the various events, it was improbable they occurred coincidentally, with the result that it could be inferred the appellant did a particular act or had a particular state of mind. This was not a case where identity was in issue. Thus, there was no danger of coincidence use of the evidence to prove that it was the appellant that did the particular act. There was some danger that a jury would reason that it was improbable that the three witnesses would make similar complaints if those complaints were not true. Such reasoning is, in the circumstances of this case, to my mind less obvious, and less compelling, than use of the evidence as tendency evidence. That is particularly so given the focus at trial on the acts and state of mind of the appellant.

34. [239]

    There was a danger of impermissible prejudice having regard to the different levels of seriousness of the conduct alleged. FK alleged the appellant, while in bed, and apparently clothed, “pressed” into her without her consent. While such conduct is to be condemned this is a far cry from the allegation of EM that she regained consciousness to find the appellant engaging in penile vaginal intercourse with her. To reason that the appellant pressed his body into FK, so he must have had intercourse with EM, is not sound. To reason that he was more likely to do so is dangerous, in the sense that too much weight might be given to that likelihood.

35. [240]

    Two things however should be observed. The touching of FK was contrary to the explicit instruction of FK. It was not the product of a misunderstanding of acceptable contact within the context of a relationship. Second, it was not a matter of reasoning from FK’s evidence of a single occasion, to a finding of non-consensual intercourse with EM. It was, rather, a matter of establishing the tendency, to which FK’s evidence of multiple incidents contributed, to reason to guilt in the case of EM: Director of Public Prosecutions v Benjamin Roder (a pseudonym) (2024) 98 ALJR 644; [2024] HCA 15 (“Roder”). This, it must be acknowledged, involved going further than the evidence of FK, AP, or the uncharged act against EM would on its own permit. The evidence was ultimately to be considered with the evidence of EM as to the charged act against her, and in particular what it added to proof of her account. There was a danger, however, in the use of the evidence of less serious conduct supporting the tendency, to prove the most extreme conduct, that being the charged conduct against EM. The difference in the nature of the alleged conduct on other occasions when compared with the sexual intercourse count against EM was something that would have been obvious to the jury. If there was any concern in this regard it was easily pointed out.

36. [241]

    The various dangers of impermissible reasoning must, of course, be considered in combination for the purpose of the balancing exercise mandated by s 101(2). Viewed together, however, the danger of unfair prejudice did not outweigh the probative value of the evidence.

37. [242]

    I would not uphold this ground.

Ground 2(b): miscarriage of justice was occasioned because the evidence FK gave at trial was not ruled inadmissible and withdrawn from the jury.

1. [243]

   It is convenient to deal with these grounds together. As discussed above, the distinction between the grounds is drawn on the basis that the evidence given by FK did not include the same level of detail as that set out in her statement.

2. [244]

   Turning to the present matter, I have already considered, in the context of ground 1, the admissibility of the evidence of FK to the effect that she woke to find the appellant touching her in a sexual manner (or at least capable of sustaining that inference). That evidence, with the tendency evidence of AP and EM was admissible. The evidence of FK, however, went further. In the pre-trial argument the prosecution identified as part of the evidence relied on for a tendency purpose an incident described in FK’s statement at [11]. The evidence given at trial in accordance with the decision to admit this part of the evidence for a tendency purpose has been set out above. It is convenient to reproduce it here:

3. [245]

   This was not evidence which, beyond the first touching (as to which FK had already given general evidence), directly supported a tendency to sexually touch unconscious women. It was, rather, evidence of the non-consensual sexual touching of a conscious woman in an apparent attempt to engage in further, consensual, sexual activity.

4. [246]

   The Crown submitted the evidence of FK with respect to the occasion on which the appellant followed her across the bed (while she was awake) was relevant and admissible as part of the tendency evidence as it supported the inference that the first touching (while FK was asleep, leading to her waking) was intentional. The relevance of the evidence for that purpose can be accepted. Whether it is sufficient to give the evidence significant probative value is another question. The evidence of FK, as discussed above, was that the conduct, which was repeated on multiple different occasions, was an attempt by the appellant, commenced while she was asleep, to initiate sex. The clear inference is that the contact was intentional. The evidence was also to be viewed as part of the body of tendency evidence, which, viewed as a whole, tended to rebut any lack of intention. The evidence that the appellant persisted after FK woke therefore added little. To the extent that it could be said to support the tendency it did not give the evidence significant probative value.

5. [247]

   Further to the above the evidence was given greater prominence in the trial as a result of the evidence of the conversation between FK and the appellant in relation to it. That conversation has been set out above, but is again, repeated for convenience:

6. [248]

   Evidence that the appellant acknowledged that he had “a problem” and that it was to a level that he needed “help for it” was extremely damaging. If admissible, it was on the basis that it supported the asserted tendency, given this was the primary relevance of FK’s evidence. But the “pressuring” referred to was more apt to refer to the actions of the appellant while FK was awake. (The evidence was of marginal, if any value with respect to the evidence of FK relied on as an admission with respect to the sexual intercourse offence alleged against EM.) The evidence was thus both extremely damaging, and not probative of the asserted tendency.

7. [249]

   I pause to note the admission above also supported the grudging nature of FK’s consent to the consensual sexual encounters between them. But for the reasons given above, this did not add to its relevance. Indeed, that FK’s consent to those encounters was given grudgingly was not relevant to the asserted tendency and served as an additional distraction.

8. [250]

   The evidence of FK, the subject of this ground, did not have significant probative value. I am of the view that her Honour erred in admitting the evidence of FK the subject of this ground. While my conclusion in this regard is the same, whether by reference to the evidence tendered on the pre-trial application or that given at trial, consistent with what I have said above, the relevant evidence was that given in the trial. Nonetheless, the evidence was given over objection such that it was admitted pursuant to a wrong decision of law for the purpose of ground 2(a). The introduction of the evidence which was less probative than that which was ruled on also occasioned a miscarriage of justice within the third limb for the purposes of ground 2(b). I would grant such leave as is required and uphold these grounds.

Ground 3: a miscarriage of justice was occasioned by the trial judge omitting to direct the jury to ensure that the tendency evidence was not misused.

1. [251]

   As noted above, the appellant, by this ground, asserts miscarriage within the third limb of s 6(1) of the Criminal Appeal Act. In the context of an assertion of an inadequacy in the summing up to the jury, in Huxley v The Queen (2023) 98 ALJR 62; [2023] HCA 40 at [41], quoting from Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44 the majority (Gordon, Steward and Gleeson JJ) observed that “‘[i]n every case, the ultimate question must be whether, taken as a whole, the judge’s instructions to the jury’ deflected the jury ‘from its fundamental task of deciding whether the prosecution proved the elements of the charged offence beyond reasonable doubt’”. Their Honours emphasised that this was to be considered having regard to the whole of the judge’s summing up to the jury.

2. [252]

   The appellant complains that the directions of the trial judge failed to adequately direct the jury so as to avoid unfair prejudice to him arising from the different level of seriousness of the acts between all the counts on the indictment and the allegations of FK, whose evidence was adduced solely for a tendency purpose. This was described as “most urgent” in relation to the offence alleged to have been committed against EM, based on the serious conduct sought to be proved to establish this offence and the contrast between that event and the tendency evidence relied on to support it.

3. [253]

   I have already, in the context of ground 1, discussed the danger that too much weight might be given to the conduct involving FK, and to a lesser extent AP and the uncharged act against EM, to find the appellant engaged in the significantly more serious conduct with respect to EM. The question is whether, viewing the summing up as a whole, the jury was deflected from its fundamental task. The jury will have been so deflected, if in reaching verdicts of guilty, there was a “real chance” they misused the evidence in a manner that could have affected their verdict: see HCF v The Queen at [2].

4. [254]

   As discussed, the appellant’s argument is strongest with respect to the sexual intercourse offence alleged to have been committed against EM. No miscarriage of justice with respect to this conviction can arise from the summing up in the first trial. No appeal lies from the jury’s failure to reach a verdict in that trial. In issue for these purposes are the directions given at the second trial.

5. [255]

   Her Honour did not specifically draw to the jury’s attention the fact that the conduct charged against EM was significantly more serious than the other conduct relied on to establish the asserted tendency. That is, the jury was not warned that there was a potential danger in finding that the appellant committed the serious offence alleged by EM, on the basis that he was more likely to have done so due to a tendency framed in general terms, supported by conduct that was significantly less serious than that alleged in the charge.

6. [256]

   Whilst not making direct reference to the above concern, directions were given cautioning the jury as to the use of the evidence. The jury was instructed as to the process of finding that the appellant possessed the alleged tendency. On the assumption that such a tendency was established the jury was directed to the effect that the existence of that tendency was available to be used in support of proof of the charge. Her Honour qualified that direction. The directions included the following:

7. [257]

   More could have been done to tailor the direction to the circumstances of the case. In conformity with the discussion above, it might have been pointed out that the Crown was relying on the significantly less serious conduct alleged by AP and FK to prove the offence against EM. It might have been pointed out that to the extent the existence of the tendency was based on these witnesses, that tendency was of limited assistance in proving the appellant went so far as to engage in penile/vaginal intercourse with EM and there was, therefore, a danger in giving the evidence too much weight.

8. [258]

   That more could have been done, however, is not the test. The question is what was required to be done. The weight to be given to evidence once admitted is generally a matter for the jury. In some circumstances, however, there is a need for a direction warning the jury against the potential dangers. Such judicial warnings are required where the courts have, through experience, an appreciation of the dangers of particular evidence unlikely to be shared by the jury: see Longman v The Queen (1989) 168 CLR 79 at 95-96; [1989] HCA 60 per Deane J; Doggett v The Queen (2001) 208 CLR 343; [2001] HCA 46 at [85] per McHugh J; Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60 at [126] per Kirby J. Identification evidence and evidence of accomplices are obvious examples. Tendency evidence is also an area where it is necessary to direct the jury with respect to the potential misuse, or overvaluing, of evidence: Hughes v The Queen at [71]. The particular circumstances where a warning will be required are not capable of classification. The role of the judge (and counsel) is to be astute as to the need for a warning in the particular circumstances of the case.

9. [259]

   The omission to direct the subject of this ground is, in essence a complaint that, while the commonly given directions with respect to the misuse of tendency evidence were given, the jury required additional direction in the circumstances based on the danger of impermissibly extrapolating from a tendency based on less serious conduct to reason that the accused committed a more serious act on the particular occasion. This is different to reasoning that, because an accused had a tendency to act in a particular way or have a particular state of mind in the past, they were more likely to have acted in the same way or had the same state of mind on the occasion the subject of the charge: cf Hughes v The Queen at [70]. (That is not to say that the tendency relied on here did not make it more likely that the appellant committed the offence against EM, as discussed in the context of ground 1.)

10. [260]

    Having articulated the danger, the issue is whether it was necessary that the jury be directed as to this. This turns on whether the jury would not have appreciated this additional danger with respect to the tendency evidence in this case, or to put the matter in terms taken from Huxley v The Queen, discussed above, whether, taken as a whole, the jury was deflected “from its fundamental task of deciding whether the prosecution proved the elements of the charged offence beyond reasonable doubt”.

11. [261]

    The difference in the evidence was pointed out to the jury by senior counsel for the appellant. In her closing address to the jury, counsel pointed out the generality of the tendency relied on by the Crown, stating:

12. [262]

    A short while later, counsel said this:

13. [263]

    The jury thus had pointed out to them the logical difficulty in reasoning from the tendency based on the evidence of AP and FK to the commission of the offence against EM. Of course, where there is a need for a judicial warning, submissions made by counsel are no substitute.

14. [264]

    The directions given by the trial judge stressed the need to be satisfied beyond reasonable doubt of the offence. More particularly, the jury was directed the tendency could not prove the offence on its own. The jury was directed that a finding of guilt was to be based on the evidence relevant to that count, that is the evidence of EM as to the event, as well as the tendency evidence. These directions, while not doing so explicitly, necessarily directed the jury to consider how they might reason from the tendency to guilt. The difference between the allegation with respect to EM, and the other evidence relied on in support of the tendency was obvious (and had, further, been pointed out by counsel). In reasoning from the tendency to guilt, it is, in my view unlikely that the jury lost sight of this difference.

15. [265]

    The jury was, in my view, unlikely to have failed to appreciate the limitations of the tendency as support for the charge relating to EM. I am not satisfied the absence of directions said to be required would have deflected the jury from their task. This conclusion is additionally reinforced by the absence of any request by the appellant that the jury be given further directions.

16. [266]

    While the concern raised by the appellant was most acute with respect to the second trial, resulting in the conviction with respect to EM, the appellant did not limit this ground to the reasoning process relating to that conviction. Insofar as the complaint is made with respect to the first trial, any similar danger in reasoning to guilt in relation to the offence alleged against AP is more tenuous. It is true that the evidence of FK involved less serious conduct than that sought to be proved to found the charge involving AP and that the uncharged act against EM relied on for a tendency purpose was also less serious than the allegation with respect to AP. The conduct the subject of the charge with respect to EM was, however, more serious. The directions given to the jury were similar to those given at the second trial. For the reasons I have given with respect to that trial, I am not satisfied that there was any omission to direct relevant to reasoning with respect to the allegation of AP so as to occasion a miscarriage of justice with respect to the first trial.

17. [267]

    I would grant leave as required to rely on this ground but would reject it.

Ground 4: the tendency direction involved error as the jury in each trial was directed to make anterior findings as to whether charged and uncharged conduct occurred and to do so after considering all the evidence.

1. [268]

   As observed above this ground is framed in terms of “error” with the result that it is not explicit as to whether it is intended to invoke the second or third limb of s 6(1) of the Criminal Appeal Act. Irrespective of which limb is sought to be engaged, as was made clear in Huxley v The Queen, where the complaint is as to a misdirection, both error (including a wrong decision) and miscarriage will only be established where the jury has been deflected from its fundamental task of deciding whether the prosecution proved the elements of the charged offence beyond reasonable doubt.

2. [269]

   The directions to be given to juries with respect to tendency evidence were the subject of recent consideration by the High Court in Roder. That decision involved an appeal from an interlocutory ruling given by the trial judge. The prosecution relied on tendency reasoning based on a combination of charged and uncharged acts. The trial judge ruled that the jury was to be directed that (unlike the uncharged acts) before the charged acts could be used to support the asserted tendency, the jury would need to be satisfied beyond reasonable doubt of the commission of those acts. The Victorian Court of Appeal upheld the proposed direction.

3. [270]

   The High Court held that the direction proposed was contrary to the Jury Directions Act 2015 (Vic), and, independently of that conclusion, and relevant for present purposes, wrong. It was not submitted on the present appeal that there was anything in the Victorian context that distinguished the second conclusion. Indeed, the reasoning of the High Court with respect to this issue relied on the decision of this Court in JS v R [2022] NSWCCA 145.

4. [271]

   Significantly for present purposes, in Roder, the High Court recognised the potential for the burden of proof to be undermined by instructions permitting a jury to take into account charged conduct (for the purposes of determining the existence of the asserted tendency) without being satisfied of that conduct beyond reasonable doubt. In addressing this concern the Court said (at [26]-[28]):

5. [272]

   The High Court in Roder gave the following guidance with respect to the directions to be given (at [37]):

6. [273]

   The directions in the present matter (which were given prior to the High Court’s decision in Roder, although after this Court’s decision in JS), did not conform with the above. This does not of itself establish error. It is, rather, necessary to consider whether there is a real risk that the jury, acting in conformity with the directions they were given, were “deflected from their task”. As no directions had in fact been given in Roder, this was not a question considered by the High Court in that case.

7. [274]

   JS, by contrast, was an appeal after trial. In JS it was contended that it was necessary for the jury to be satisfied beyond reasonable doubt as to each of the items of tendency evidence before that evidence could be used in proof of each of the charges. This complaint was rejected (including the contention that s 161A(1) of the Criminal Procedure Act was limited in its application to uncharged acts). It was, however, also submitted that the tendency direction undermined the general direction as to proof beyond reasonable doubt with respect to each of the charged offences. That submission was made in circumstances where, as here, the jury was directed to make factual findings with respect to the acts relied on to support the asserted tendency, including the charged acts. The complaint as to the undermining of the standard of proof captures a concern raised by the present appellant’s ground of appeal.

8. [275]

   In JS, Basten AJA accepted (at [40]) that the direction was “apt to undermine the general directions concerning proof beyond reasonable doubt with respect to each charge”. That is because of the potential that the jury, having made a finding, as instructed, at some lesser standard of proof, would be more likely to reach that same finding at the higher standard of beyond reasonable doubt. It was this concern that led to his Honour’s observations as to the need for careful directions. Consistent with his Honour’s observation that it is “preferable” that the jury not be directed to make findings with respect to conduct relied on to support the existence of a tendency, his Honour found the summing up did not fail to correctly direct the jury. His Honour said (at [44], in a passage referred to in Roder at [28]):

9. [276]

   It follows from the above that it is necessary to determine a complaint such as that here having regard to the entirety of the summing up. It is also necessary to consider the facts of the case as the effect of the directions may vary depending upon those facts. For example, directions requiring the jury to make findings of fact where there are two acts relied on for a tendency purpose, each of which is one of two counts on the indictment may be more problematic. Clearly, in such a case, the evidence relied on to establish an offence forms a substantial part of the tendency evidence. It may be more difficult for a jury to separate a finding as to that conduct for the purposes of the tendency given the weight that it will have been given in finding the tendency (particularly when it is then likely to be considered at the second stage in conjunction with the established tendency). By contrast, in a case with twenty separate acts, many of which are also relied upon in proof of an offence, individual acts will have a reduced significance in finding the tendency proved. In these circumstances, an antecedent finding made for the purposes of proving the tendency may be less likely to interfere in the process of reasoning when considering guilt with respect to the particular offence.

10. [277]

    Before turning to the impact of the directions on the standard of proof, I pause to observe the appellant’s submissions went beyond a complaint that the directions undermined the standard of proof. It was submitted that because the jury was told to consider “all the evidence” when determining whether the conduct (including the charged conduct) occurred, they were, in essence invited to use tendency reasoning at a primary fact-finding stage to determine the intermediate question of whether the asserted tendency was established. This, it was submitted, invited an illogical, and therefore impermissible form of reasoning. It was also submitted, perhaps relatedly, that the directions were apt to result in confusion, and therefore misuse of the evidence.

11. [278]

    There is no doubt that all of the evidence is available in determining whether the tendency has been established (including the evidence of a particular charge where the tendency is to be used in the proof of that charge). That is established by Roder, as discussed above (and see also at [35] of the decision). The use of evidence in this way is consistent with the ordinary use of circumstantial evidence. That the tendency is then itself used as a piece of circumstantial evidence to prove an offence does not change this.

12. [279]

    The appellant’s complaint is that here, the jury was instructed to consider all the evidence for the purpose of finding a particular act proved (at an undefined standard of proof and necessarily engaging in tendency reasoning), using that finding to make a finding that the appellant had the asserted tendency, and then in turn using that tendency together with the evidence of the count to find the count proved. The complaint is that doing so involves using tendency reasoning at two stages of the reasoning process which, it was contended, involved illogicality.

13. [280]

    As is clear, the various items of tendency evidence do not need to be proved beyond reasonable doubt before being used to support an asserted tendency. Say, (for the purposes of argument only), it was considered that the acts relied on for a tendency purpose should be established on the balance of probabilities before being used in proof of the asserted tendency. There would be no illogicality in considering all the evidence for the purpose of determining whether a particular act was established on the balance of probabilities. Those acts established on the balance of probabilities could then be used to determine satisfaction of the asserted tendency (either by reference to a defined standard or not). That tendency could then be employed, together with the evidence specific to a particular count, to establish whether that count was proved beyond reasonable doubt. Whilst not strictly illogical, it might be thought confusing. If actually applied, the process is more demanding than that actually required. It is doubtful that such a process would be applied in the absence of clear directions requiring it. But, to answer this aspect of the appellant’s complaint, there is no necessary illogicality.

14. [281]

    I turn then to the directions given in the present case and the question of whether the burden of proof was undermined.

15. [282]

    Argument focussed on the directions given in the first trial. Similar directions were given at the second trial. It was not suggested by the Crown that any differentiation should be made. It is convenient therefore, to determine this ground on the basis of the directions given at the first trial noting that the ground, in its terms, applies to both trials.

16. [283]

    It is necessary to refer to some of the directions given prior to the impugned directions in order to fairly assess how those impugned directions are likely to have been received by the jury.

17. [284]

    Early in the summing up, her Honour explained the role of the jury, stressing that it was for them “as to how you evaluate the evidence that you have heard in the case and to decide what evidence you accept and what evidence you reject”. In the course of instructing the jury as to how to go about that process, her Honour told the jury that the “decision about what evidence you accept and what evidence you reject can be based on all types of things”.

18. [285]

    Her Honour stressed to the jury that they were expected to use their “common sense” and “[their] ability to judge [their] fellow citizens” and that their “wisdom and their common sense” was a “critical foundation of the whole jury system”. Shortly after, her Honour gave directions as to the onus and standard of proof. These directions were given emphasis, her Honour telling the jury that they related to “the most important and fundamental features of our criminal justice system”. The jury was told that it was the elements of the offences that required proof beyond reasonable doubt. The combination of these directions made clear to the jury that their common sense and wisdom was to be applied to the question of whether the Crown had established the elements of the offences (and hence guilt) beyond reasonable doubt. The jury was, additionally, directed as to the drawing of inferences in a conventional way and warned not to draw conclusions from evidence on the basis of “guesswork or speculation”.

19. [286]

    The onus and standard of proof were effectively repeated in a direction given with respect to the exculpatory accounts given by the appellant. Her Honour told the jury that “the Crown must satisfy you beyond reasonable doubt that you should reject his evidence as being a reasonable possible version of the facts, and, furthermore, that the evidence the Crown does rely on proves the offence beyond reasonable doubt”. In a similar vein, the jury was told that it was not a matter of preferring one version over another, but that they could not “convict the [appellant] unless … satisfied beyond reasonable doubt as to the reliability of the evidence relied upon by the Crown to prove that count, in particular, the evidence of each particular complainant, and that task is a different one to simply comparing versions and picking one”.

20. [287]

    The jury was directed that the Crown sought to establish the appellant’s guilt “with a case based largely or exclusively on a single witness for each particular count”. Her Honour directed the jury in conventional terms:

21. [288]

    Importantly for the appellant’s argument, immediately after giving this direction her Honour said:

22. [289]

    Her Honour then referred to the submissions on behalf of the appellant that the jury would not find the complainants to be reliable and truthful witnesses based on various aspects of the evidence. The jury was then given a direction to consider each count separately but were told this was subject to the direction they would receive on tendency.

23. [290]

    Directions in relation to tendency reasoning were introduced by reminding the jury that in considering each complainant’s evidence they were entitled to consider whether their evidence was supported by other evidence including tendency evidence. The jury was reminded of the tendency relied on by the Crown before her Honour identified the evidence relied on in support of that tendency. The evidence of count 1; count 2 and the uncharged act against EM; and the evidence of FK, were referred to as three “bodies of evidence”.

24. [291]

    Her Honour directed the jury, in the central part of the directions relied on by the appellant for the purpose of this ground:

25. [292]

    Directions were given with respect to the limitations of tendency evidence. Significantly, against the appellant’s argument, the jury was in this context directed:

26. [293]

    It can be seen from the above, her Honour repeatedly referred to the need to make findings as to the tendency evidence. As discussed, such references do not automatically result in a finding of error or miscarriage. Further, both before and after the impugned directions the jury was directed in clear terms as to the standard of proof and its application to each of the elements, which in turn required acceptance of the particular complainant’s evidence to that standard.

27. [294]

    In analysing the effect of the summing up, it is important not to lose sight of the concerns which arise with respect to tendency evidence more generally. That is, the concern that tendency evidence is a species of evidence which is, by its nature, prone to being given too much weight, a concern which is recognised in the special rules that apply with respect to the admissibility of tendency evidence. The jury was, of course, given directions in a form generally regarded as adequate to address this concern. It is, however, difficult not to question the efficacy of such directions here, where the jury was repeatedly told to make findings (to some unspecified standard) with respect to the “bodies” of tendency evidence, having regard to all of the evidence admitted as tendency evidence including, of course, the evidence of events relied on to support the counts on the indictment.

28. [295]

    Given there was only one conviction at each trial, it is at least theoretically possible that neither jury relied on tendency reasoning. The possibility that they did however, cannot be excluded. It is, highly unlikely in my view, that they did not. Each count was weak in the absence of the tendency evidence. Certainly, the inability of the jury to agree with respect to the count against EM at the first trial would suggest at least some jurors would have found that offence proved to the criminal standard. That being the case those jurors can be expected to have relied on that evidence, the evidence of AP, and, perhaps that of FK, to find the appellant had the asserted tendency in convicting the appellant of the offence against AP.

29. [296]

    Engaging in tendency reasoning as part of finding an offence proved, assuming the directions were followed, would have required the jury to give consideration to the particular count having already made a finding the event occurred for the purpose of finding the tendency proved. (Absent this earlier finding there would have been no finding of guilt.) When determining what weight to give to the tendency (a matter they were told was for them) it is unlikely that any antecedent finding could be put to one side. That is, while it was the tendency that was to be considered as a distinct piece of circumstantial evidence when considering whether a particular count was proved beyond reasonable doubt, it is difficult to escape the real possibility, and perhaps likelihood that an earlier finding that the conduct was established infected the reasoning process. The somewhat artificial distinction between the tendency and the conduct underpinning it will be more difficult to maintain where a finding has been made as to that conduct.

30. [297]

    This risk referred to above was exacerbated by the significant role of the charged acts in proving the tendency. In the context of there being relatively few acts of alleged misconduct, the evidence of the particular count inevitably formed a substantial part of the evidence establishing the tendency.

31. [298]

    One matter peculiar to the second trial, was that the allegation sought to be proved was the most serious of various allegations against the appellant. Evidence relied on in proof of that allegation included a tendency to act in a particular way, the foundation for which was the allegation itself, and other less serious conduct. The risk of circularity of reasoning is potentially greater in such a case. The conduct in issue was, arguably, an outlier in the spread of conduct relied on to prove the tendency. A finding that it occurred was likely to inform not only the tendency as expressed, but also the extent to which the appellant was prepared to act in accordance with the tendency. That is perhaps another way of saying that, as the most serious evidence of the manner in which the tendency was said to have manifested itself, the particular event was likely to have dominated the reasoning process and informed the nature of the tendency. While that quality was inherent in the evidence, the risk of it infecting the process in this way was significantly greater in circumstances where an antecedent finding that the event in fact occurred had been made. Obviously, on the facts of this case, reasoning that the appellant had a tendency to sexually touch unconscious women by engaging in penile-vaginal intercourse with them, based on the incident involving EM, could not support a finding beyond reasonable doubt that he did have penile-vaginal intercourse with EM, knowing she was unconscious.

32. [299]

    The outcome of the first trial suggests that at least some of the jurors in that trial were not misled by the tendency evidence insofar as it was used to support the count relating to EM. That is not to say that the jury at the second trial was not so affected.

33. [300]

    Having regard to the above, I am of the view that there was a real risk in this case that the jury, in following the directions given and making findings as to the occurrence of the events relied on for a tendency purpose was “deflected from its fundamental task”. That is because the directions as to the standard of proof were undermined.

34. [301]

    The conclusion I have reached in this matter is different from that reached in JS. Ultimately, it is, as I have stressed, a question of the impression formed having regard to the entirety of the directions. There is limited utility in analysing the directions against the outcome in some other case. That is particularly so where the argument in JS was not formulated in the same way, the focus being on a contention that the jury should have been told they could only rely on the charged acts to support the asserted tendency if they were satisfied of the act beyond reasonable doubt. With those qualifications, I am of the view the directions here carried a greater risk than the directions given in JS. From the directions in JS set out by Basten AJA (at [42]), it does not appear that the need to make findings for the purpose of establishing the tendency was given the same emphasis as occurred here. There are three occasions in the directions where the jury was instructed to make a factual finding. On the third occasion they were told not to “consider each of these episodes of conduct in isolation but [to] look at them collectively to decide what conduct [they were] satisfied occurred for the purposes of tendency reasoning” but then immediately told “[y]ou consider all three episodes of conduct within this context and consider whether the tendency for which the Crown contends has been established”. This, contrary to the earlier direction, suggested a single step from the evidence to the tendency. It also underscored the point that the jury was not, in this exercise, deciding whether any particular event was proved beyond reasonable doubt, making clear this was a further discrete step. However, as I have said, each case is to be decided on its own merits.

35. [302]

    On the basis of the above I formed the view that leave should be granted to the appellant pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules to rely on this ground. I was also of the view that leave for the purposes of s 5(1)(b) of the Criminal Appeal Act should be granted and the ground upheld.

Conclusion

1. [303]

   For the reasons given above I joined in the orders made by the Court on 24 December 2024.

2. [304]

   Having regard to the appellant’s success with respect to the conviction appeal, it is unnecessary to consider the application for leave to appeal against sentence.

3. [305]

   It remains necessary to consider whether an order for a new trial, as provided for by s 8(1) of the Criminal Appeal Act should be made.

Should a new trial be ordered?

1. [306]

   Section 6(2) of the Criminal Appeal Act provides that the court, if it allows an appeal against conviction, shall “[s]ubject to the special provisions of this act … quash the conviction and direct a judgment and verdict of acquittal to be entered”. Section 8(1) of the Criminal Appeal Act then provides:

2. [307]

   The appellant in his original submissions did not submit that, in the event the appeal was upheld, an acquittal should be entered. Despite this, the circumstances in which the appeal has been upheld were such as to indicate to the Court the issue should be considered. Submissions were received in which the appellant advocated for acquittals while the respondent resisted such orders submitting that the appropriate order was for a new trial. Insofar as the respondent points to the appellant’s initial failure to seek orders acquitting him, any such failure can have no bearing on the merits of the application.

3. [308]

   A further issue has arisen with respect to the determination of this issue. The appellant seeks to rely on further evidence. He relies on the affidavit of his solicitor, Mr Tiedt of 28 October 2024 which was initially admitted provisionally, limited to the question of re-sentencing should the court come to it. That affidavit simply annexed a report of a psychologist, Steven Albert dated 25 October 2024. He also seeks to rely on a further report of Steven Albert dated 13 February 2025. The Crown objects to the receipt of this material on the question of whether a new trial should be ordered.

4. [309]

   The Crown did not contend, correctly in my view, that the evidence is not relevant. The reports of the psychologist deal with the impact of the appellant’s imprisonment on him and the likely impact of an order for retrial. Rather, the objection was that the psychologist’s evidence is hearsay, the psychologist not having himself provided an affidavit. (Even if he had, the evidence would still be hearsay.) It was also submitted that the psychologist’s repetition of the appellant’s representations is second hand hearsay. The evidence is sought to be admitted in an appeal against the appellant’s convictions. This is a proceeding to which the Evidence Act applies: s 4. The evidence as the Crown submits, is hearsay and having been objected to is not admissible. There is no need to examine questions of first-hand, second-hand (and perhaps third-hand) hearsay. (As to the distinction between oral evidence and evidence given by affidavit see Van Zwam v R [2017] NSWCCA 127 at [108]-[110], noting that, unlike the situation that pertained there, these are not proceedings that relate to sentencing). The evidence is not admissible.

5. [310]

   That the evidence in its present form is not admissible does not finally resolve the question of how the objection should be dealt with. That is because of the particular circumstances in which the objection has been taken.

6. [311]

   Having heard full argument the Court made orders upholding the appeal, quashing the convictions and calling for submissions as to the appropriate consequent orders. In order to minimise further delay it was ordered that this question be determined on the papers. As a result, in the absence of the Court sitting with respect to this issue, the appellant has not had the opportunity to call the evidence in the face of the Crown’s objection. The appropriate course would be, ordinarily, to offer the appellant the opportunity to call evidence at a reconvened sitting of the Court. The appellant would then be faced with a choice of yet more delay (and expense) or foregoing potentially important evidence.

7. [312]

   That imprisonment for the first time, delay and the prospect of (at least) a third trial and further imprisonment would have a significant psychological impact might be assumed (cf s 68A, Crimes (Appeal and Review) Act 2001 (NSW)). Reliable evidence as to the extent of that effect would have some, and potentially a significant impact on the question of the appropriate orders. It is regrettable that the Crown would take a technical objection to the evidence. This is particularly so having regard to the lack of objection to the first affidavit “on the usual basis” in relation to sentence, a decision presumably based on a view that there was nothing obviously suggesting unreliability in the annexed report.

8. [313]

   In the circumstances I have taken the view that the fairest course is to consider whether absent the evidence orders for acquittal should be made. If not, the appellant should have the opportunity to call the evidence. What follows are the reasons for my conclusion that, on the material available, no new trial should be ordered.

9. [314]

   The proper approach to s 8(1) of the Criminal Appeal Act was helpfully summarised in Gilham v R [2012] NSWCCA 131; (2012) 224 A Crim R 22 by McClellan CJ at CL, at [648]-[649]:

10. [315]

    The principle in Spies v The Queen (2001) 201 CLR 603; [2000] HCA 43 at [104], referred to above, has more recently been affirmed by the High Court in The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35 at [84].

11. [316]

    For present purposes, I proceed on the basis that the evidence available is of sufficient cogency to justify the convictions. Had I come to a view, contrary to my conclusion in determining ground 1, that tendency reasoning was not available, a real question would have arisen as to this. In so proceeding, I find it unnecessary to comment on the strength of the Crown case. Obviously each jury was satisfied beyond reasonable doubt of the offence with respect to which they convicted the appellant. Equally clearly, it cannot be known what impact the errors in the trial had upon the jurors.

12. [317]

    What can be said in the present matter is that any order for a new trial will result in the appellant facing a third trial. The allegations date from March-April 2019 in the case of AP, and December 2019 in the case of the EM. While the appellant submitted that by the time any retrial is heard in the order of six years will have passed from the time of those allegations, the more significant period is that which will have passed from the time the appellant became aware of the police investigation. It would appear the appellant was aware of this from about September 2020. He subsequently participated in the interview with police in October 2020 before being charged with the sexual offences on 29 October 2020. (He was charged later with the pervert the course of justice offence.) On that basis, I would accept that it is likely that close to five years will have passed by the time a third trial is heard. In the event of a conviction, it is likely that sentence proceedings, and potentially appeal proceedings, will extend the time beyond that.

13. [318]

    By the time any further proceedings are resolved, the appellant will have spent the time referred to above either on bail, or in custody. He was on bail from 29 October 2020. He entered custody on 12 September 2023, on remand, pending sentence. On 4 April 2024, he was sentenced to an aggregate term of imprisonment of 6 years with a non-parole period of 3 years and 7 months, commencing on 12 September 2023. That sentence was imposed with respect to the offences against AP and EM, the subject of the appeal against sentence, together with the offence of perverting the course of justice to which the appellant pleaded guilty. He remained in custody until 24 December 2024 when he was released to bail as a result of the orders made by this Court. As a result, the appellant has spent 1 year, 3 months and 12 days in custody.

14. [319]

    In having regard to the above matters, I do not ignore the fact that the appellant pleaded guilty to an offence of perverting the course of justice and, consequently, the proceedings generally and his time in custody particularly are at least partially referable to this offence. Putting to one side the somewhat unsatisfactory nature of his plea (a matter discussed below) it remains the case that, had the pervert the course of justice offence been dealt with on its own, a sentence of 2 years or less would have been well within the available range. Such a sentence would be amenable to an order that it be served by way of an intensive correction order. Further, the sexual offences, given the nature of the charges and potential outcomes, were likely to have been the primary source of stress in the trial process.

15. [320]

    The delay referred to above is to be seen in the context of the appellant’s age. The appellant was 28 years old when he was charged. He is presently 32 and will be at least 33 by the time any further trial commences. Given his stage of life, the trial process is likely to have caused significant disruption to him. This disruption is to further be seen in the context of the evidence adduced on sentence with respect to the appellant’s psychological state. The sentencing judge recounted a troubled history. She noted that he had been assessed by different practitioners as suffering a range of conditions including depression in the moderate clinical range, bordering on severe; severe anxiety; severe stress; autism spectrum disorder; and complex postal traumatic stress disorder. Her Honour concluded that the appellant “has clearly mental health issues” (sic). The appellant gave evidence that his mental health deteriorated upon entering custody and the sentencing judge accepted that his mental health was such that imprisonment was more burdensome for him.

16. [321]

    The question that arises in the context of that short history is whether this Court should return the appellant for trial. In answering this question the responsibility of the prosecution for the present situation cannot be left out of the equation. The State has had the opportunity to prosecute him. The overturning of the convictions is as a result of the prosecution adducing evidence over objection that clearly went beyond the tendency sought to be proved. To prove the case that the appellant engaged in sexual conduct with EM and AP when they were asleep the prosecution led a significant body of evidence to the effect that the appellant pressured women when they were awake, or at least attempted to do so, until they grudgingly gave into his persistence and engaged in intercourse with him. This conduct was not suggested to be contrary to law. It did, nonetheless, show the appellant in an extremely poor light. Yet it could not have been relevant to the tendency sought to be proved. The result was the reception of inadmissible evidence which presented the appellant as a sexual predator and which was very likely to have caused significant prejudice to him in the determination of the charges.

17. [322]

    The public interest in the determination of criminal offences by a jury, or at least the role of the Director of Public Prosecutions in deciding whether that should occur, weighs heavily in favour of ordering a retrial. That is particularly so in the case of serious offences such as those alleged here. Against this, for the appellant the prospect of returning to custody in the context of the history I have recounted would be, to perhaps understate the matter, extremely burdensome. In my view, despite the powerful factors that might otherwise warrant an order for a further trial, it would be oppressive to submit the appellant to such a trial.

18. [323]

    It is not open to the Court to simply quash the convictions and make no further order. That is, in the event that a new trial is not ordered, it is necessary to finalise the proceedings by entering acquittals: The Queen v A2 at [80]-[83] per Kiefel CJ and Keane J, at [148] per Nettle and Gordon JJ and at [179]-[192] per Edelman J. That, in my view, is the appropriate order in this case.

Resentencing: the pervert the course of justice offence

1. [324]

   The appellant pleaded guilty to the offence of doing an act with the intention to pervert the course of justice contrary to s 319 of the Act. The appellant was sentenced for this offence as part of an aggregate sentence which included the sexual offences. As a result of the quashing of two of the convictions, and the consequent quashing of the aggregate sentence, this Court has the power to resentence with respect to this offence pursuant to s 7(1A) of the Criminal Appeal Act. I am of the view we should do.

2. [325]

   The offence carries a maximum penalty of 14 years imprisonment. There is no standard non-parole period. As noted above, the aggregate sentence imposed was one of 6 years with a non-parole period of 3 years and 7 months. The indicative sentence for the pervert the course of justice offence was 2 years and 2 months. That indicative sentence took into account a 5% discount for the appellant’s late plea of guilty.

3. [326]

   I note the appellant also sought leave to appeal against his sentence. Given the sentence has been quashed, it is unnecessary to determine that appeal. It is however necessary to resolve a complaint made by the appellant with respect to the facts on which he was sentenced, in particular with respect to his understanding of the nature of the act by which he was said to have intended to pervert the course of justice.

4. [327]

   The sentencing judge summarised the facts with respect to this offence as follows:

5. [328]

   An affidavit of the appellant’s mother was tendered on sentence. She is a solicitor. She deposed that she became aware of the investigation and assisted the appellant in obtaining representation. She arranged for a barrister to attend the police station with the appellant when he attended for his interview. She said that she asked the barrister whether it was permissible to “wipe” the contents of the appellant’s phone and iPad. She indicated her concern in this regard was that the devices were connected to the law firm for which she worked. She was told that there was no issue with deleting the contents of the devices. She said the conversation took place “on speaker” outside the Apple Store with the appellant present. She was not cross-examined on her affidavit.

6. [329]

   The appellant gave evidence. He said that he understood the advice given by the barrister in the above conversation was that the data on the devices could be deleted.

7. [330]

   The appellant complained on the sentence appeal that the sentencing judge erred in rejecting his evidence that he was advised it was permissible to delete the contents of the devices. The parties’ submissions dealt with the process of fact finding on sentence. While there may be a real question as to the rejection of unchallenged evidence, the issue to my mind is resolved at a more fundamental level. In my view, acceptance that the appellant was acting under legal advice that it was permissible to delete the contents of the devices is inconsistent with the appellant’s guilt of the offence. If the appellant believed he was entitled to act as he did, there was no intention to pervert the course of justice; he was simply acting within his legal rights. While I have come to the conclusion for different reasons I would not depart from the sentencing judge’s conclusion that the evidence the appellant believed his actions were lawful should not be taken into account.

8. [331]

   The sentencing judge accepted the appellant’s evidence that he was “not thinking clearly and was stressed”. She found the act was “most probably performed in a state of panic”.

9. [332]

   The act, in my view, was a not particularly well thought out attempt to deny evidence to the police. The evidence on the devices was not particularly probative. Arguably the most damaging evidence adduced from the data was inadmissible. Further, any communications deleted from the appellant’s devices would not have prevented recovery of the equivalent evidence from the device of the other participant to the conversation, assuming it had been retained. Those matters, however, do not change the significant fact that the appellant admitted that by his actions he intended to pervert the course of justice.

10. [333]

    While the offence is necessarily serious, having regard primarily to the relative lack of sophistication of the offending, it is well removed from the most serious of such offending. Nonetheless, general deterrence remains an important sentencing consideration: Harrigan v R [2005] NSWCCA 449 at [47].

11. [334]

    I have regard to the appellant’s prior good character. He had a difficult upbringing. I note the evidence of the appellant’s mental conditions. The sentencing judge did not find that these conditions were causally connected to the offending and that finding has not been challenged. I do accept, like the sentencing judge, that general deterrence should be given less weight. Further, imprisonment has been more onerous on him as a result of his mental state.

12. [335]

    Having regard to the various purposes of sentencing, no sentence other than imprisonment is appropriate. Having regard to the length of the sentence I propose, the discount of 5% results in a fraction of a month. This should be subject to rounding. I would impose a sentence of 14 months with a non-parole period of 10 months commencing on 12 September 2023. Given the sentence has already been served it is unnecessary to consider whether that sentence should be served by way of an intensive correction order, or whether there should be a further adjustment to the non-parole period for special circumstances beyond rounding the figure to whole months.

Orders

1. [336]

   I propose the following additional orders:

   1. (1)

      With respect to the offence in count 1 on the indictment dated 7 September 2022, enter a verdict of acquittal;

   2. (2)

      With respect to the offence in the single count on the indictment dated 21 October 2022, enter a verdict of acquittal;

   3. (3)

      With respect to the offence that the appellant on 29 October 2020 did an act with the intention of perverting the course of justice, the appellant is sentenced to imprisonment for 14 months, with a non-parole period of 10 months commencing on 12 September 2023. The non-parole period expired on 11 July 2024. The total sentence expired on 11 November 2024.