DP v R

1. [1]

   THE COURT: DP (the applicant) seeks leave to appeal against his convictions for sex offences committed against his daughter (JP or the complainant) and for a separate offence of possession of child abuse material depicting naked female children. The applicant was convicted after a trial by jury conducted by Beckett DCJ between 2 November 2020 and 20 November 2020. There were eleven counts on the indictment, of which two were alternative counts: count 3 was an alternative to count 2 and count 9 was an alternative to count 8. The applicant was convicted of counts 1, 3, 4, 5, 6, 7, 8, 10 and 11.

2. [2]

   On 18 June 2021, the trial judge sentenced the applicant to an aggregate sentence of 10 years’ imprisonment, commencing on 12 August 2020 and expiring on 11 August 2030, with a non-parole period of 6 years and 6 months. The applicant will be eligible to apply for release to parole on 11 February 2027. The applicant makes no complaint against the sentence imposed.

3. [3]

   All references to legislation in these reasons are references to the Crimes Act 1900 (NSW) (the Act) unless otherwise stated.

4. [4]

   The applicant was convicted of the following nine counts, which related to four separate incidents:

The grounds of appeal

1. [5]

   This appeal turns on the treatment of certain evidence of uncharged acts and other sexualised conduct (the alleged context evidence) which was accepted to be relevant for a tendency purpose but which was not, ultimately, relied on for that purpose.

2. [6]

   The applicant seeks leave to appeal on the following grounds:

   1. (1)

      a miscarriage of justice was occasioned by the trial judge’s failure to direct the jury as to the proper use of the alleged context evidence (including to warn them against engaging in tendency reasoning); and

   2. (2)

      a miscarriage of justice was occasioned by the manner in which the asserted tendencies and evidence relied upon in support of them was dealt with at trial.

3. [7]

   The notice of appeal as filed also included a complaint about the admission of the alleged context evidence but this was not pressed at the hearing. This approach was adopted after counsel for the respondent identified (for the first time in this Court) the bases upon which the various items of “context” evidence were relevant and admissible other than as tendency evidence. Mr Parkin, who appeared for the applicant with Ms Yates, submitted in this Court that, given that the evidence of the allegations was admitted, the absence of an anti-tendency direction resulted in a departure from a trial according to law which had a meaningful potential to affect the result of the trial.

4. [8]

   As each of these grounds, in terms, requires the applicant to establish not only error or irregularity but also a miscarriage of justice, the applicant must demonstrate that there was a “real chance” that the error or irregularity affected the jury’s verdict: see the cases referred to in Zhou v R [2021] NSWCCA 278 at [22] (Beech-Jones CJ at CL, Davies and Wilson JJ agreeing). In Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 Gageler J (as his Honour then was) said at [118] “[w]hat is essential to the finding of miscarriage of justice is that the irregularity had the meaningful potential or tendency to have affected the result of the trial.”

5. [9]

   Leave to appeal is required under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) as neither of the grounds involves a question of law alone. Leave is also required under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (r 4.15) as no objection was made by the applicant’s trial counsel at the trial to the directions given or directions alleged not to have been given. The applicant also requires an extension of time as his notice of appeal was filed on 29 November 2024, four years after his conviction.

6. [10]

   The explanation given on behalf of the applicant for an extension of time is, in substance, that over several years since his convictions he has sought legal advice on his prospects of appeal from several counsel. While this explanation would not usually provide a satisfactory reason to extend time, we consider that, in the interests of finality, it is appropriate to extend time, having regard to the extensive oral and written submissions on the substantive appeal.

The tendency notice

1. [11]

   On 4 September 2020 the Crown served a tendency notice pursuant to s 97 of the Evidence Act 1995 (NSW) in which it identified that it sought to prove that the applicant had a tendency to have a sexual interest in the complainant when she was between the ages of 4 and 15 years and a tendency to act on that interest by indecently assaulting her, sexually assaulting her and grooming her for unlawful sexual activity. The evidence which the Crown identified in the notice as being evidence which it intended to adduce to prove the tendency included the whole of JP’s Joint Investigation Response Team (JIRT) interviews (discussed below) and evidence of JP’s complaints to various family members and friends. This evidence comprised evidence of the charged counts as well as the alleged context evidence. It did not, however, include the evidence on which the Crown proposed to rely for counts 10 and 11 (which related to the material found on the applicant’s computer, the location, properties and contents of which were the subject of evidence from police officers and an expert analyst).

2. [12]

   As will be discussed below under ground 2, the prosecutor re-framed its tendency case during the trial.

The Crown case at trial

1. [13]

   In support of its case, the Crown called:

   1. (1)

      JP (to prove counts 1-9), whose evidence in chief was largely comprised by two JIRT interviews which were conducted and filmed by police on 25 October 2018 (the morning after JP first reported the matter to police) and 5 February 2019 and played to the jury in accordance with s 306U of the Criminal Procedure Act 1986 (NSW);

   2. (2)

      family members: JP’s older brother; YP (JP’s mother and DP’s wife); and CP (DP’s mother and JP’s grandmother);

   3. (3)

      three friends of JP to whom she complained about the applicant’s conduct;

   4. (4)

      the police officers to whom the complainant initially reported the matter on the evening of 24 October 2018 and other police witnesses involved in the investigation; and

   5. (5)

      Bruce Horsley, a digital forensic analyst employed by the NSW Police force (to prove counts 10 and 11).

2. [14]

   The alleged context evidence comprised evidence of seven separate allegations which, adopting the labels employed by counsel on the appeal, were as follows:

3. [15]

   The substance of this allegation was that when JP was young, the applicant would touch her “most days” by placing his hand under her clothes, after he put her younger brother to bed (answers to Q94 to Q114 in the first JIRT interview).

4. [16]

   The substance of these allegations was that when JP was older, the applicant would give her a vibrator, instruct her how to use it, and tell her to go to her room and play with herself (answer to Q121 and Q186 to Q216).

5. [17]

   The substance of the car allegation was that on one occasion when the applicant and JP were driving back from Auburn, JP woke up to find the applicant rubbing her thigh, near her vagina. This caused her to wonder whether she should report it or “just stay quiet again” (answers to Q167 and 168, Q225, Q250 to 255).

6. [18]

   The substance of this allegation was that the applicant would tell JP to go to her room and play with herself (answers to Q120, and Q122).

7. [19]

   The substance of this allegation was that the applicant would bribe JP by placing money (usually a $50 note) in her underwear to let him touch her or take photos of her (answers to Q131 to 140).

8. [20]

   The substance of the towel allegation was that one night, the applicant walked towards JP’s room while dressed in a towel (answers to Q553).

9. [21]

   The substance of the dog allegation was that the applicant attempted to bribe JP with a pet dog in exchange for her coming to his room at night (answers to Q555 to Q556).

10. [22]

    In its opening, the Crown did not refer to tendency reasoning or indicate that it relied on the tendency alleged in the tendency notice as part of its circumstantial case against the applicant. Nor did it refer to the alleged context evidence since its opening was confined to the evidence of the counts on the indictment.

11. [23]

    The Crown did not refer to “tendency” in terms in closing. However the Crown said:

12. [24]

    By specifically referring to the evidence which was the subject of count 10 and by referring to “various sexual and indecent assaults that occurred to her … before she’d even started school” (which can be taken to include at least the touching allegation, since this occurred before the complainant started school) this passage, taken in isolation, indicates that the Crown relied on this evidence for the tendency purpose to prove that the applicant had a sexual interest in JP.

13. [25]

    The prosecutor also made reference to the car allegation when reminding the jury of the chronology of events which preceded her complaint to the police on 24 October 2017 as follows:

14. [26]

    The prosecutor addressed counts 10 and 11 (without referring to tendency) as follows:

The defence case

1. [27]

   As to counts 1-9, the applicant’s case was that JP fabricated the allegations because she did not want to move with the family to Maitland which would also entail leaving her boyfriend who lived in Sydney. He also contended that JP was not credible and instanced occasions when she was alleged to have lied to various family members and stolen items from CP (her paternal grandmother). The applicant gave evidence in his defence. He described his relationship with JP as “up and down” and gave evidence of her behaviour at home which he found concerning, such as her alleged reluctance to do chores, her self-harming behaviour (cutting herself and an eating disorder) and her relationship with her boyfriend.

2. [28]

   As to counts 10 and 11, the applicant’s case was that he did not know how any of the child abuse material came to be on his computer, hard-drive or phone and that, because his passwords were known to other members of the family who had access to his computer, the images and videos could not be shown to have been in his possession.

3. [29]

   The applicant also relied on the lack of complaint by JP to either her mother or her aunt. He also relied on evidence that he was a serving NSW police officer and had no criminal record as evidence of good character.

4. [30]

   The defence closing address focussed on the credibility of the complainant, including inconsistencies in her evidence and why she complained to friends but not to her mother or her aunt, as well as the view of some family members that she would tell lies and steal from family members. The applicant’s trial counsel referred to the vibrator allegations, the touching allegation and the underwear allegation in the context of other evidence, including complaint evidence, as a way of seeking to impugn her credit, as appears from the following example:

Discussion as to what directions ought be given

1. [31]

   When the trial judge raised the question of tendency with the Crown after the Crown’s closing had been completed and before the defence closing had begun, the prosecutor informed her Honour that the Crown relied on the “cross-admissibility” of evidence of counts 1-10 for a tendency purpose; that this should be the subject of a direction; and that the applicant’s trial counsel had no difficulty with a tendency direction limited to counts 1-10 and accepted that the evidence could be used for that purpose. When the trial judge subsequently asked counsel whether a context (that is, anti-tendency) direction ought be given (implicitly in respect of the alleged context evidence), the prosecutor said that he did not consider such a direction was necessary but that it was a matter for the trial judge whether the direction ought be given. The applicant’s trial counsel said nothing at all in response to her Honour’s question.

The summing up

1. [32]

   Early in the summing up, the trial judge referred to the parties’ respective cases. Her Honour said of the prosecution case in respect of counts 10 and 11 as follows:

2. [33]

   Because of the significance of the tendency direction, which was given for the first time in the summing up, we propose to set it out in full. We have inserted paragraph numbers for ease of reference and highlighted in bold those passages particularly relied on by the Crown and in italics those passages particularly relied on by the applicant:

3. [34]

   It was common ground on the appeal that the tendency direction was unduly favourable to the applicant on two bases. First, it required the jury to look at the evidence in support of each count in isolation from all the facts and circumstances to work out whether the tendency could be established (instead of viewing all the tendency evidence relied on as a whole).

4. [35]

   Second, it included a requirement that, before one count could be used as tendency evidence to support another count, the first count had to be proved beyond reasonable doubt. The second requirement is contrary to The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [86] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); see also Director of Public Prosecutions v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644 at [26]-[28] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ) which concerned the Jury Directions Act 2015 (Vic). That aspect of the direction appears to have been based on decisions of this Court including DJS v R [2010] NSWCCA 200 at [54]-[55] (Hodgson JA, Kirby and Whealy JJ agreeing), which were disapproved in The Queen v Bauer. Section 161A of the Criminal Procedure Act, which prohibits such a direction, took effect after the applicant’s trial: see JS v R [2022] NSWCCA 145.

The alleged context evidence

1. [36]

   Before turning to the grounds, it is necessary to identify the non-tendency relevance of the alleged context evidence. It was accepted that the Crown did not clearly articulate the relevance of the alleged context evidence when it was tendered in the trial. What follows is the Crown’s articulation in this Court of the relevance of that evidence.

2. [37]

   The touching allegation and the play with herself allegation demonstrated the duration of the applicant’s sexual conduct towards JP and the extent to which he had, from JP’s early childhood, fostered an environment whereby JP was encouraged to keep the conduct secret. It also served to explain why JP did not react to the conduct which constituted count 1, which was alleged to have occurred when she was 7 or 8 years old, in the way in which the jury might have expected her to react had it been the first occasion on which the applicant had engaged in sexualised conduct towards her and treated her as an object to be used for his sexual gratification.

3. [38]

   The evidence of the underwear and dog allegations provided context to counts 1 and 7 which also involved allegations that the applicant offered JP an incentive to engage in sexualised conduct. The underwear allegation was relatively close in time to count 1 and the dog allegation was relatively close in time to count 7. The Crown submitted that the evidence of these allegations enabled the jury to place into context JP’s conduct in accompanying the applicant to have her phone repaired after the conduct which constituted count 7: because of his previous attempts to offer her incentives to engage in sexual conduct, she had an understandable expectation that since the conduct in count 7 had, on her evidence, occurred, she was entitled to have the applicant pay for her phone to be repaired because she had, in that context, earned it. Although she had not agreed to comply with his request, he had performed the acts anyway and delivered on his promise of having her phone fixed.

4. [39]

   The evidence of the underwear and dog allegations was also relevant to the jury’s assessment of JP’s credibility in the context of her complaints on 11 March 2017 to her older brother (which included the dog allegation) and to her grandmother (CP) and in about September 2017 to her older brother (which included the underwear allegation). The probative value of this evidence was increased by the way in which the defence case was conducted. The applicant’s trial counsel opened the case on the basis that JP had fabricated all of the allegations and was falsely accusing her father of the charged crimes because she did not want to have to move with the family to Maitland, including because it would involve a separation from her boyfriend.

5. [40]

   The evidence of the underwear and dog allegations was also relevant for a tendency purpose (and fell within the tendency notice) although this purpose was not, ultimately, relied on by the Crown. If accepted, this evidence tended to show that the applicant engaged in bribery or attempted bribery of JP in return for acts which would give him sexual gratification and which demonstrated his tendency to be attracted to girls aged between 4 and 15 and to act on that tendency.

6. [41]

   The towel allegation is in a separate category. It merely involved the applicant walking towards JP’s room while he was dressed in a towel. We accept the Crown’s submission that this evidence was neutral and contained no allegation of sexual conduct or sexual interest. It need not be addressed further.

Ground 1: alleged error in failing to give an anti-tendency direction in respect of the use of the alleged context evidence

1. [42]

   Mr Parkin submitted that the alleged context evidence was capable of being used as tendency evidence (and indeed had originally been included in the tendency notice served by the DPP) in that:

   1. (1)

      the evidence of the touching allegation, the play with herself allegation and the car allegation had a clear capacity to demonstrate that the applicant had a sexual interest not just in JP but also in female children generally;

   2. (2)

      the underwear allegation and the dog allegation had a clear capacity to demonstrate that the applicant was prepared to offer JP incentives to engage in sexual behaviour because of his sexual interest in JP and female children generally; and

   3. (3)

      the car allegation, which was alleged to have related to conduct in 2016 or 2017, was incapable of providing context to the charges which were the subject of counts 1-6 because it occurred after they are alleged to have occurred and that this circumstance gave rise to the risk that the car allegation would be misused for a tendency purpose.

2. [43]

   Mr Parkin also submitted that, as the relevance of the alleged context evidence had not been identified by the Crown in its opening, when it was tendered or in closing, there was a real risk of the evidence being used for a tendency purpose. On this basis, Mr Parkin submitted that there was a substantial risk that the jury in fact used the evidence for a tendency purpose when reasoning towards conviction, and that, as no anti-tendency direction had been given, there was a miscarriage of justice.

3. [44]

   In support of the application for leave pursuant to r 4.15, Mr Parkin relied on Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463 at [80] where this Court (McClellan CJ at CL, Howie and Latham JJ agreeing) held that the forensic decision of trial counsel not to seek an anti-tendency direction (or, one might add, an unexplained omission on the part of trial counsel to seek such a direction) was not an answer to the grounds if the Court was otherwise satisfied that the risk of the context evidence being used for a tendency purpose was such as to give rise to a miscarriage of justice if, as occurred, no anti-tendency direction was given in respect of it.

4. [45]

   Mr Parkin submitted that there were several aspects of the tendency direction (which are highlighted in italics in the extract above) which operated to undermine any implication that the jury was not permitted to engage in tendency reasoning except in relation to counts 1-10. He submitted that, in the absence of a direction that the alleged context evidence could not be used for a tendency purpose, the words “being an act of a sexual nature against [JP]” which follow “one or more of those counts” in paragraph 4 of the direction positively invited the jury to engage in such reasoning because the alleged context evidence comprised evidence of a sexual nature against JP. He also submitted that the prosecutor, in referring to count 10, if established, being capable of being used by the jury in support of the alleged tendency that the applicant had a sexual attraction to girls aged between 6 and 14 years was outside the tendency notice, which had not referred to the evidence in support of count 10 (this matter is also relied on as the third particular of ground 2, considered below).

5. [46]

   While Mr Parkin accepted that the passage in bold in paragraph 8 could, if read in isolation, go some way to amounting to an anti-tendency direction, he submitted that any ameliorative effect of those words was undone by the addition of “guilty of one piece of misconduct” in paragraph 9. He submitted that those words were apt to distinguish between the charged conduct (in the words “has committed one offence”) and uncharged conduct (in the words “guilty of one piece of misconduct”). Thus, he argued that the trial judge had, in effect, directed the jury that tendency reasoning was available in respect of both categories when it had only been relied on for that purpose in respect of the first. He submitted that the further italicised direction in paragraph 9 illegitimately broadened the range of matters which the jury could take into account in deciding whether the tendency had been proved and, in substance, told the jury that they could use the alleged context evidence for the tendency purpose.

6. [47]

   Further, Mr Parkin submitted that the trial judge’s invitation to the jury in paragraph 11 of the direction to use “common sense” was also apt to lead the jury astray since it compounded the danger that the jury would use the alleged context evidence for a tendency purpose. He argued, in effect, that it was “common sense” to use such evidence for a tendency purpose, which is why an anti-tendency direction is required whenever there is a risk of a jury reasoning in that way. Mr Parkin submitted that the alleged context evidence remained “a discrete category of problematic evidence” for the jury in respect of which they had not been given a direction which would constrain their use of it to a non-tendency purpose.

7. [48]

   Mr Parkin sought to distinguish Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33 (Hamilton) from the present case on the following bases:

   1. (1)

      Hamilton concerned ten counts in respect of three complainants (who were sons of the appellant);

   2. (2)

      in Hamilton the counts were tried together because the appellant’s case was that his sons had conspired with his ex-wife to concoct false allegations against him;

   3. (3)

      in Hamilton, unlike the present case, an anti-tendency direction was given in respect of context evidence but none was given in respect of the evidence of each of the counts;

   4. (4)

      in Hamilton, the majority described the risk that the jury would use the evidence of one count for a tendency purpose in respect of another count as having “an air of unreality” ([44] (Kiefel CJ, Keane and Steward JJ)) since the issue of the credibility as between the appellant on the one hand and the complainants and their mother on the other was “overwhelmingly likely to be decisive of the appellant’s guilt on any count” ([45]);

   5. (5)

      in Hamilton, the Murray direction (so called after R v Murray (1987) 11 NSWLR 12) – that the jury could not convict the appellant unless they were satisfied beyond reasonable doubt that the evidence of each child was honest and reliable in relation to each of the counts concerning the child – was regarded as having an ameliorative effect ([45]) whereas it would not have a similar effect in the present case which is a single-complainant case; and

   6. (6)

      in Hamilton the majority considered it to be “distinctly unlikely” that a doubt about the reliability of any one of the complainants could be resolved by tendency reasoning ([46]); whereas Mr Parkin submitted that the risk in the present case was both significant and real.

8. [49]

   Mr Parkin submitted that none of the other directions identified by the Crown was sufficient to make up for the lack of anti-tendency direction in respect of the alleged context evidence. Further, he submitted that there was no conceivable forensic benefit to the applicant in his counsel not applying for an anti-tendency direction in respect of the alleged context evidence.

9. [50]

   Context evidence is commonly adduced to put into a meaningful context a complainant’s account about conduct which is the subject of a specific charge, without which the jury might have difficulty believing the complainant’s evidence: HML v The Queen (2008) 235 CLR 334; [2008] HCA 16 at [2]-[11] (Gleeson CJ). Such evidence may also serve to explain why a complainant expresses no surprise at a charged act and does not immediately complain or why an applicant’s brazen opportunism in sexually offending against a young child is not, in the circumstances, implausible: Hughes v The Queen (2017) 263 CLR 388; [2017] HCA 20 at [58]-[60] (Kiefel CJ, Bell, Keane and Edelman JJ). Evidence of such conduct over years may demonstrate the extent to which an applicant has habituated a complainant to an environment in which sexual conduct may occur: see, for example, KJS v R (2014) 86 NSWLR 603; [2014] NSWCCA 27 at [32]-[39] (Hoeben CJ at CL, Adams and R A Hulme JJ agreeing).

10. [51]

    Because the question whether there is a real or significant risk that the jury will engage in tendency reasoning with respect to the alleged context evidence depends on the circumstances of the trial, it is important to consider whether there was an objectively reasonable forensic basis for the applicant’s trial counsel not to seek an anti-tendency direction in respect of such evidence: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [16]-[17] (Gleeson CJ). The approach taken by counsel in the trial is also relevant to the question whether there was a miscarriage of justice: BQ v The King (2024) 279 CLR 124; [2024] HCA 29 at [56] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ).

11. [52]

    Depending on the nature of context evidence, there may be a risk that it will be used by the jury for a tendency purpose and, depending on the circumstances, require an anti-tendency direction to be given to the jury in order to preserve the fairness of the trial to the accused. As this Court said in Qualtieri v R at [73]:

12. [53]

    The purpose of a context direction and the requirements for such a direction were summarised in R v ATM [2000] NSWCCA 475 by Howie J (Sully and Whealy JJ agreeing) as follows:

13. [54]

    There is no universal rule that a context (or so-called anti-tendency) direction must be given in every case where possible tendency reasoning can be identified: Hamilton at [42]; KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 at [33] and [37] (McHugh J); at [72] (Gummow and Callinan JJ); at [114] (Kirby J); at [133]-[134] (Hayne J); Latu v R [2023] NSWCCA 19 at [69], [79]-[80] (Davies J, Bell CJ and Fagan J agreeing). In order to establish error arising from the absence of an anti-tendency direction, the applicant must show that there was a “real chance” (BRS v The Queen (1997) 191 CLR 275 at 306 (McHugh J); [1997] HCA 47) or “significant risk” (Toalepai v R [2009] NSWCCA 270 at [49] (Howie J)) that the jury reasoned towards guilt by impermissible tendency reasoning. The majority in Hamilton identified the relevant issue in the following terms at [52]:

14. [55]

    We consider there to be an objectively reasonable basis for the applicant’s trial counsel not to have sought an anti-tendency direction. First, the Crown’s tendency notice was broad enough to cover the use of the alleged context evidence for a tendency purpose. Second, the Crown had neither identified the basis on which the alleged context evidence was relevant to the jury’s deliberations nor referred to tendency reasoning in its closing address. Third, after the Crown’s closing address and before the defence closing, it was the trial judge who raised what directions ought be given as to whether and what evidence could be used for a tendency purpose and what evidence could not be used for such a purpose. The transcript would appear to record that it was common ground that a tendency direction was appropriate in respect of counts 1-10 and that no context direction (that is, no anti-tendency direction in respect of the alleged context evidence) need be given.

15. [56]

    In these circumstances, it was objectively open to the applicant’s trial counsel (whether or not he subjectively engaged in these thought processes) to have considered that:

    1. (1)

       it was highly beneficial to the applicant for the tendency direction to be limited to the charged counts rather than to extend to encompass the alleged context evidence as would have been open, having regard to the width of the tendency notice;

    2. (2)

       the tendency direction which was given was unduly favourable to the applicant in two major respects (as outlined above) and, if reformulated, might have jeopardised the advantages which it gave the applicant in its original form;

    3. (3)

       it was preferable that no reference be made to the use that could be made of the alleged context evidence since the giving of such a direction would have required the trial judge to identify the alleged context evidence which comprised a litany of occasions which were similar to the charged counts and which reflected the substance of the complaints made by JP to family and friends, thereby potentially enhancing JP’s credibility in the minds of the jurors as well as supporting the inference of a sexual interest in JP as alleged by the Crown. In other words, any direction – no matter how favourable to the applicant or legally correct – would serve to highlight the evidence;

    4. (4)

       in circumstances where the applicant relied on his good character, the jury might have given the fact of his being a serving police officer with no criminal record little or no weight in light of the alleged context evidence if an anti-tendency direction had been given;

    5. (5)

       any direction relating to this evidence was bound to include a direction that one use to which it could properly be put was to rebut the applicant’s case that he was a person of good character; and

    6. (6)

       since the applicant himself had relied in the defence closing address on at least the car, underwear and vibrator allegations for the purposes of impugning the complainant’s credit (by suggesting that inconsistencies in JP’s versions showed that she had fabricated them), an anti-tendency direction which included these allegations might detract from the force of his submission.

16. [57]

    In circumstances where there were powerful forensic reasons for defence counsel not to seek an anti-tendency direction, it was not incumbent on the trial judge to override the defence choice not to have such a direction given. Indeed, had her Honour given such a direction, it may have been adverse to the interests of the applicant, having regard to the matters set out above. Although we would be inclined to refuse leave under r 4.15, the detailed consideration given to this ground would indicate that leave under r 4.15 ought be granted.

17. [58]

    As referred to above, a forensic decision not to seek an anti-tendency direction does not determine whether there has been a miscarriage of justice. The tendency direction given in respect of the counts carried with it a necessary implication that evidence other than evidence in support of the counts could not be used for a tendency purpose. As set out above, Mr Parkin, in his detailed textual analysis of the direction, has identified words which he submitted undermined the force of the trial judge’s admonitions to the jury:

    1. (1)

       “[t]he evidence must not be used in any other way than the way I have explained” (paragraph 8 of the direction);

    2. (2)

       the jury was “concerned with the particular and precise occasion alleged in each of the charges” (paragraph 10 of the direction); and

    3. (3)

       if they found that the applicant had a sexual interest in JP that may indicate that the particular allegation (in the count) was true (paragraph 10 of the direction).

18. [59]

    However, reading the summing up as a whole, we consider that the jury would have understood, to take the example which the trial judge gave, that if they were satisfied that the applicant was guilty of count 10, they could infer that he had a sexual interest in JP and, accordingly, use that inference of sexual interest to reason that it was, accordingly, more likely that he had committed the offences in counts 1-9. This was the tendency reasoning which the Crown referred to in its closing address and which her Honour identified in the summing up. We do not consider that the inclusion of the word “misconduct”, when read in the context of the direction as a whole, which otherwise focussed exclusively on counts 1-10, had the effect for which Mr Parkin contended. We regard the suggestion that this word was sufficient to divert the jury away from counts 1-10 and make them consider that they were entitled to use the alleged context evidence (which had not been referred to in this context) to be unrealistic.

19. [60]

    In all of the circumstances, we are not persuaded that the risk that, in the absence of a dedicated stand-alone anti-tendency direction, the jury would engage in tendency reasoning based on, say, the touching allegation, or the car allegation was such as to occasion a miscarriage of justice. The evidence which the jury was entitled to use for a tendency purpose was the relatively powerful evidence of the various counts and, in particular, count 10, which, once proved beyond reasonable doubt (as the jury had been told, incorrectly, was the relevant standard before it could be used for a tendency purpose), provided powerful evidence of a tendency to have a sexual interest in JP and to act on that interest by taking photographs and videos of her from outside her window for his sexual gratification. The alleged context evidence was principally relevant because it corresponded with some of the complaints JP had made to friends and family and was, therefore, relevant to the jury’s assessment of the credibility of her accounts.

20. [61]

    In these circumstances, we are not persuaded that, notwithstanding the absence of a stand-alone anti-tendency direction, there is significant chance that the jury reasoned towards guilt by an impermissible path of reasoning. Nor are we persuaded that the absence of such a direction had any real capacity to affect the result of the trial.

Ground 2: alleged miscarriage of justice occasioned by the way in which the alleged tendencies and evidence in support of them was dealt with at trial

1. [62]

   Mr Parkin submitted that the treatment of the alleged tendencies and the evidence relied on by the Crown in support of them was irregular in the following particularised respects:

2. [63]

   As to particulars 1, 2 and 4, the trial judge in the summing up identified the relevant tendencies relied on by the Crown at the beginning of the tendency direction as “a sexual interest in his daughter between the ages of 6 and 14 and that he was willing to act on it”. This differed from the tendency alleged in the notice in that the age range was narrower (in the notice it was between the ages of 4 and 15) and it did not provide the particulars given in the notice (that he acted on that interest by indecently assaulting, sexually assaulting and grooming JP). The narrowing of the tendency can have had no prejudicial effect on the fairness of the applicant’s trial.

3. [64]

   As to particular 3, it is plain from the text of the trial judge’s tendency direction that her Honour accepted that the Crown was also relying on the evidence of count 10 (the images and videos of JP which were found on the applicant’s computer) to establish that the accused had those tendencies. The evidence in support of this count had not been referred to in the tendency notice and therefore fell outside it although it plainly supported both tendencies. In the course of the discussion between the end of the Crown closing and the beginning of the defence closing, the applicant’s trial counsel raised no objection to count 10 being relied on as tendency evidence on that basis.

4. [65]

   Section 97(1) of the Evidence Act prohibits evidence of conduct to prove a tendency unless notice has been given of the party’s intention to adduce that evidence and the court thinks that the evidence will have significant probative value. The requirement for notice does not apply if the court dispenses with notice requirements by direction: ss 97(2) and 100. Regulation 5(2)(a) of the Evidence Regulation 2020 (NSW) provides that the notice of tendency given under s 97(1)(a) must state, among other matters, “the substance of the evidence to which the notice relates”. As referred to above, the tendency notice given did not include the evidence of counts 10 or 11.

5. [66]

   The trial judge did not make a formal direction dispensing with the notice requirements in respect of the evidence of count 10. However, in the discussion with counsel regarding what evidence would be covered by the tendency direction, counsel for the applicant plainly acquiesced in the inclusion of count 10 in the evidence that could be relied on for a tendency purpose and which needed, therefore, to be included in the direction.

6. [67]

   The applicant’s trial counsel’s decision not to object to the inclusion of count 10 in the tendency direction was objectively reasonable: the defence case was that the prosecution could not prove to the requisite standard that he was responsible for taking the images of JP which were found on his computer (and that therefore they were in his possession). This was the only issue regarding count 10, it being self-evident that the person who created and stored such images had the tendencies alleged by the Crown: that is, not only to have a sexual interest in girls aged between 6 and 14, but also a tendency to act on that interest (by secretly observing JP through her bedroom window when she was naked and photographing or filming her in that state and then retaining those images and videos on his computer). An alternative possibility that the person who had taken and stored them had done so for someone else was, in the circumstances, fanciful. In these circumstances no miscarriage of justice arises from the inclusion of the evidence of count 10 in the tendency direction. Had the applicant’s trial counsel objected to the inclusion of count 10 in the tendency direction, it is almost inevitable that the notice requirement would have been dispensed with as there was no relevant prejudice to the applicant in its inclusion.

7. [68]

   Mr Parkin submitted that the highlighted passage from the trial judge’s summary of the prosecution case on counts 10 and 11 (extracted at [32] above) carried with it an implicit direction that the tendency alleged (sexual interest in JP) could be used as evidence in support of count 11. He submitted that this was erroneous because the Crown did not rely on count 11 for a tendency purpose and it had not been the subject of a tendency notice.

8. [69]

   In paragraphs 4 and 5 of the tendency direction, the trial judge was careful to distinguish between counts 1-10 (which could be used for a tendency purpose) and count 11, which was “different” (paragraph 5 of the direction, see [33] above). We consider the terms of the tendency direction to be sufficient to make it clear to the jury that they could use evidence of each of counts 1-10 in support of the alleged tendencies to have a sexual interest in females between 6 and 14 and to act on that interest but that they could not use that tendency, if it be found, in support of count 11. Nor could they use the evidence of count 11 to establish the tendency and reason that it was accordingly more likely that the applicant was guilty of counts 1-10.

9. [70]

   We regard the reading for which Mr Parkin contended of that portion of summary of the prosecution case on counts 10 and 11 as highly artificial. These counts were distinct from counts 1-9 because they concerned possession of child abuse material. However, when it came to giving the tendency direction towards the end of the summing up (on the second day of its delivery), the trial judge clearly distinguished between counts 1-10, in respect of which tendency reasoning was available, and count 11, where it was not. No objection was taken by the applicant’s trial counsel to these aspects of the summing up and therefore leave under r 4.15 is required. Leave ought only be granted in the interests of finality.

The proviso

1. [71]

   As neither of the appeal grounds has been made out, it is not strictly necessary to address the proviso. The proviso arises under s 6(1) of the Criminal Appeal Act which relevantly provides that where this Court has found error, it may dismiss an appeal against conviction “if it considers that no substantial miscarriage of justice has actually occurred.” However, we propose to address it briefly as the present is a case where, had either of the grounds been made out, the proviso would have been applicable.

2. [72]

   Mr Parkin submitted that because the jury’s verdicts were dependent on the credibility of the complainant, it was difficult to see how this Court could form a view on the basis of the record that the applicant’s guilt had been proved beyond reasonable doubt and therefore, if error were established, the only appropriate order would be for a re-trial to be ordered. He relied on the principle that the jury is best placed as the “constitutional arbiter of fact” to make such a judgment. He submitted that, in these circumstances, the proviso ought not be applied. Further, he submitted that counts 1 to 9 depended on JP’s credibility but that counts 10 and 11 were also affected by findings of guilt on those counts because the jury was entitled to use their findings of guilt on those grounds in support of the Crown case on counts 10 and 11.

3. [73]

   This task is to be performed by the appellate court on the basis of the record of the trial: Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 (Weiss) at [39] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ). The High Court in Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 7 at [13] (Kiefel CJ, Bell, Keane and Gordon JJ) described the approach to be taken by this Court as follows at [12]:

4. [74]

   A necessary, but not sufficient, condition for the operation of the proviso is that this Court is satisfied that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty: Weiss at [44].

5. [75]

   Whether there has been a substantial miscarriage of justice does not depend on generalisations or categories. It depends on the facts, circumstances and error established in the particular case. Thus, the circumstance that the complainant’s credibility was in issue at the trial (as will commonly be the case in sexual assault trials) does not prohibit the application of the proviso. However, where credibility issues are crucial to the outcome, its application may in practice be less frequent having regard to the jury’s constitutional role and the “fundamental precept” of a criminal trial: cf the separate judgments of Deane J and Gaudron J (dissenting in the outcome) in Wilde v The Queen (1988) 164 CLR 365 at 357, 377-378; [1988] HCA 6 (Deane J) and 382-384 (Gaudron J).

6. [76]

   For example, in Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44, the High Court refused to apply the proviso because the relevant error (the admission of irrelevant evidence) may have affected the jury’s assessment of a complainant’s credibility, which was fundamental to the prosecution case. At [20], Kiefel CJ and Keane J emphasised the ”nature and effect of the error which gives rise to the miscarriage of justice”, because some errors (for example those that involve issues of contested credibility) might prevent the appellate court from effectively assessing the evidence. At [41], Gordon, Steward and Gleeson JJ, citing Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, referred to the “natural limitations” on the ability of appellate courts to assess aspects of the evidence at trial, for example the credibility of witnesses.

7. [77]

   In Hofer v The Queen, Gageler J summarised the effect of Weiss as follows at [93]:

8. [78]

   The prosecution case was based on the following undisputed evidence:

   1. (1)

      the history of complaints made by JP to close friends and family (CP and her older brother, which were corroborated by text messages) over many years prior to her eventual report of the matter to police in October 2018;

   2. (2)

      the presence of a vibrator in the home which largely matched the description JP had given to police;

   3. (3)

      the presence of the video she described to police (which became count 6) on the applicant’s computer;

   4. (4)

      the images and videos of JP when she was naked in her bedroom which were taken from outside her bedroom window and which focussed on her genitalia (as observed by the trial judge; the actual images were pixilated when shown to the jury to make clear the part of JP’s body which was the focus without actually depicting it);

   5. (5)

      the evidence of Mr Horsley, a senior digital forensic analyst, which established that the images and videos of JP found on the applicant’s computer matched images and videos which had been taken on the applicant’s mobile phone; and

   6. (6)

      the records of the phone shop corroborated JP’s version that the applicant had agreed to pay for her phone to be fixed.

9. [79]

   The inference that the applicant had taken the images and videos of JP from outside her window (having regard to (4) and (5) above) was compelling. Once this is accepted, the applicant’s sexual interest in JP and willingness to act on it was nigh incontrovertible. We are satisfied that the evidence adduced at trial, including the evidence of tendency (based on evidence of the charged conduct) and the complaint evidence, established the applicant’s guilt of the charges of which he was convicted beyond reasonable doubt. The strength of the prosecution case on the charged conduct was such that, even if an anti-tendency direction had been given, the case against the applicant would not have been weaker in any appreciable sense.

10. [80]

    Further, the forensic choices made by trial counsel were objectively open to him. This undermines the suggestion that the matters now complained of interfered with the precepts of a criminal trial and militates in favour of a finding that “no substantial miscarriage of justice” has actually occurred.

11. [81]

    For these reasons, we consider that, had either of the grounds been made out, the proviso would have applied and the appeal ought to have been dismissed.

Additional matters

1. [82]

   Although the conduct of the Crown in running the trial was not the subject of criticism in this appeal, it is important to record that when evidence is relied upon for a tendency purpose, it is at least highly desirable that it be identified as such in the Crown’s opening and that the Crown make clear to the jury that, as part of its circumstantial case, it relies on a particular tendency, which should be articulated. To flag the evidence at the outset also serves to alert the trial judge to the possible need to give an anti-tendency direction in respect of other evidence which could potentially be used for a tendency purpose, at the time at which it is adduced.

2. [83]

   Further, it is important, as a matter of fairness, for the Crown in closing to be clear about what evidence it relies on to establish the tendency for which it contends so that the defence has an opportunity to respond and to assist the trial judge in summing up the prosecution case to the jury. It would have been open to the trial judge, when her Honour raised the issue of tendency at the end of the Crown closing, to require the Crown to address the jury further on that topic (which could have been done without prejudice to the applicant as the defence closing had not yet begun) to outline the extent to which the Crown invited the jury to engage in tendency evidence and on what basis it did so.

3. [84]

   In effect, the Crown in the present case cast the obligation on the trial judge to tell the jury, effectively for the first time, what evidence was relied on by the Crown in its circumstantial case on tendency; how it could use that evidence to decide whether there was such a tendency; and how the tendency, if found, was relevant to their deliberations. It was the prosecutor’s obligation to open and close the case with reference to the evidence relied on for a tendency purpose.

4. [85]

   However, because of the way the trial judge dealt with the matter in the circumstances of the present case, the Crown’s omissions did not deleteriously affect the fairness of the applicant’s trial and was not, in any event, the subject of challenge.

Orders:

1. [86]

   The Court orders:

   1. (1)

      Extend the time for filing of the notice of appeal to 29 November 2024.

   2. (2)

      Grant leave to appeal, including pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

   3. (3)

      Dismiss the appeal.