Director of Public Prosecutions v Roder (a pseudonym)
[2023] VSCA 262
•31 October 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0153 |
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| BENJAMIN RODER (a pseudonym)[1] | Respondent |
[1]To avoid the possibility of prejudice in the respondent’s trial, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
---
| JUDGES: | PRIEST, NIALL and TAYLOR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 October 2023 |
| DATE OF JUDGMENT: | 31 October 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 262 |
| JUDGMENT APPEALED FROM: | DPP v [Roder] (Unreported, County Court of Victoria, 12 September 2023, Judge McInerney) |
---
CRIMINAL LAW – Interlocutory appeal – Sexual offences – Tendency evidence consisting of both charged and uncharged acts – Standard of proof – Whether jury to be directed that charged acts must be proved beyond reasonable doubt – R v Bauer (2018) 266 CLR 56; Dempsey (a pseudonym) v The Queen [2019] VSCA 224; Jury Directions Act 2015, ss 61, 62 considered – Leave to appeal refused.
---
| Counsel | ||
| Applicant | Ms S Clancy | |
| Respondent | Mr CK Wareham | |
| Solicitors | ||
| Applicant | Ms A Hogan, Solicitor for Public Prosecutions | |
| Respondent | Dribbin & Brown Criminal Lawyers | |
PRIEST JA
NIALL JA
TAYLOR JA:
The respondent faces trial in the County Court on an indictment charging him with 27 sexual offences against two brothers, ‘MW’ and ‘EW’, between 1999 and 2011.[2] In the relevant period, MW and EW were the respondent’s step-children, he being in a domestic relationship with their mother.
[2]The charges involve incest (14 charges — charges 2, 5, 6, 7, 8, 9, 10, 13, 15, 16, 19, 21, 22 and 24); committing an indecent act with or in the presence of a child under 16 (eight charges — charges 1, 3, 4, 12, 14, 17, 18, and 20); committing an indecent act with a 16 or 17 year old child (one charge — charge 11); committing an indecent act with a 16 year old child (two charges – 23 and 25); and indecent assault (two charges — 26 and 27). Charges 1 to 11 relate to EW in a period between 1999 and 2011; and charges 12 to 27 relate to MW in a period between 2001 and 2009.
Pursuant to a notice given under s 97(1)(a) of the Evidence Act 2008, dated 12 September 2023 (‘the notice’), the prosecution seeks to rely on the respondent’s tendency to:
2.1 Have a particular state of mind, namely;
(a)To have an improper sexual interest in his step-children [EW] and [MW], and a willingness to act on that sexual interest by engaging in sexual activity with them.
2.2 Act in a particular way, namely;
(a)A tendency to use his position of trust, physical proximity to and relationship with, his step-children to engage in sexual activity with each of them;
(b)A tendency to take advantage of occasions when he was alone with the complainants to engage in sexual activity with them;
(c)A tendency to engage in sexual activity with each of the complainants when others were nearby and in circumstances where there was a high risk of detection; and
(d)A tendency to tell and/or threaten each of the complainants to keep the offending ‘a secret’.
The notice also states that the
issue in the case to which tendency reasoning applies is whether the acts constituting the alleged offences occurred.
Table A of the notice sets out the evidence relied on to establish the alleged tendencies. Significantly, the prosecution relies on every sexual act alleged in every charge in the indictment (‘the charged acts’) as tendency evidence. The prosecution also relies as tendency evidence on six other pieces of sexual misconduct which are not the subject of a charge (‘the uncharged acts’). In that respect, it is noteworthy that, when referring to each charged act relied upon to support the alleged tendencies, Table A of the notice in each case recites:
The [charged] act alleged demonstrates a tendency to show an improper sexual interest in the complainant.
At a pre-trial hearing, the respondent’s counsel conceded that the evidence relating to both the charged acts and the uncharged acts was admissible as tendency evidence.[3] Relying on Dempsey,[4] however, the respondent’s counsel submitted that the trial judge should direct the jury that, before using evidence of the charged acts as tendency evidence, they must be satisfied beyond reasonable doubt that those acts occurred.
[3]The judge was satisfied that the concession was properly made. It was not challenged in this Court.
[4]Dempsey (a pseudonym) v The Queen [2019] VSCA 224 (Beach, Kaye and Ashley JJA) (‘Dempsey’).
The prosecutor took a different stance, however, contending that the direction sought by the respondent’s counsel was prohibited by s 61 of the Jury Directions Act 2015 (‘JDA’), and that Dempsey had no application.
In an ex tempore ruling delivered on 12 September 2023 (‘the ruling’ or ‘the interlocutory decision’), the judge accepted the principal submissions of the respondent’s counsel, and rejected those advanced by the prosecution. Among other things, the judge said:[5]
[5]Emphasis added.
… I find that to apply in this case two different standards [of proof] to each charged act would be an act of sophistry and would undermine the criminal standard of proof.
Where a finding as to the charged acts occurring requires satisfaction of the elements which the jury will be instructed upon, I find s 61 of the [JDA] must apply.
To instruct the jury to apply a lesser standard of satisfaction as to the charged acts for the purpose of tendency/probability reasoning and then instruct them to be satisfied beyond reasonable doubt as to the individual charges would not only be confusing for the jury but may well lead to the risk of injustice to the accused. I therefore intend to charge as I indicated … .
I find that charging in such way, will at least intellectually discriminate between [uncharged] sexual misconduct and charged acts which would justify discrimination as to standard of proof, that is, that the [uncharged] sexual misconduct evidence must be found to have occurred to be used as tendency evidence and the charged acts must be proved beyond reasonable doubt.
…
In this case, the prosecution has chosen to be used, as evidence of tendency, the particularity of the acts as detailed in the notice being each actual charge [in the indictment].
In such circumstances, to charge [i.e. to direct the jury] as the prosecutor submits would, as I have said, be an act of sophistry.
Hence, I have determined the jury will be instructed sequentially as follows: firstly, I would recommend to the jury — not that I can determine how and what they do — when they are in the jury room that they decide firstly as to whether they are satisfied that the six [uncharged] acts of sexual misconduct occurred. I would not suggest to them that there is any standard [of proof] involved in that consideration. In particular, I would not charge them that they must be satisfied as to the civil standard.
Secondly, when they come to Charge 1, I would tell them that they can take account of the principles of tendency and probability reasoning as put in the prosecution case, as I would explain to them what that means, based upon the number of the six acts of [uncharged] sexual misconduct that they are satisfied occurred.
When we [sic] then come to Charge 2, I will direct them that they can take into account the principles of tendency and probability reasoning as put in the prosecution case upon the number of the six acts of [uncharged] sexual misconduct which they find occurred and Charge 1 if proved beyond reasonable doubt, and so on, sequentially.
And that would obviously, depending on the number of charges found proved, increase the incidence, if I put it that way, of evidence relied on to prove the tendency and to allow such tendency to be utilised as probability reasoning. And I so find.
From the above, we would venture that the principal holdings in the interlocutory decision are as follows.
·First, to apply two different standards of proof to each charged act ‘would be an act of sophistry and would undermine the criminal standard of proof’. By this we take the judge to mean that it would be fallacious to permit the jury to apply different standards of proof to any given charge, depending on whether the jury were determining the guilt or non-guilt of the respondent on that particular charge, or, alternatively, were using the evidence of the conduct embraced by the charge for the purposes of tendency reasoning. Indeed, the judge’s ruling must be understood as holding that to instruct the jury in effect to apply a lesser standard of proof when considering evidence of the charged acts for the purposes of tendency reasoning, whilst in the same breath directing the jury that they needed to be satisfied beyond reasonable doubt that the relevant charged act occurred in order to convict on any particular charge, ‘would not only be confusing for the jury but may well lead to the risk of injustice to the [respondent]’.
·Secondly, s 61 of the JDA must apply when directing the jury whether the prosecution has proved the elements of any particular charge. In other words, the jury must be directed that, in order to find the respondent guilty of any particular charge, the elements of that charge must be proven to their satisfaction beyond reasonable doubt.
·Thirdly, and allied to the above, the judge held that he would direct the jury that, in order to use the uncharged acts for tendency purposes, they must find that those acts occurred; but in order to use the charged conduct for tendency purposes, the jury must find the conduct alleged to have been proved beyond reasonable doubt.
·Fourthly, the judge said that he would direct the jury ‘sequentially’, by recommending to the jury that they first decide whether they are satisfied that the six uncharged acts occurred — the judge said he ‘would not suggest to them that there is any standard [of proof] involved in that consideration’ — and, once they had done so, turn to consider the first charge. The judge said that he would instruct the jury that, when they are considering the first charge, they could ‘take account of the principles of tendency … reasoning as put in the prosecution case’, if satisfied the uncharged acts occurred. Next, the judge said that he would instruct the jury that, when considering the second charge, they could take into account the evidence of the uncharged acts if satisfied that it occurred, together with the acts embraced by the first charge if satisfied beyond reasonable doubt that they occurred. The judge said he would instruct the jury to carry out that exercise ‘sequentially’. He also said — it is not clear that he was saying that he was going to direct the jury to this effect — that ‘depending on the number of charges found proved’, that would obviously ‘increase the incidence … of evidence relied on to prove the tendency and to allow such tendency to be utilised as probability reasoning’.
Pursuant to certification by the trial judge given that same day under s 295(3)(b) of the Criminal Procedure Act 2009 (‘CPA’), the applicant seeks leave to appeal against the interlocutory decision on a somewhat inelegantly expressed ground as follows:
His Honour erred in law in finding that the exception to the Standard of Proof required for Tendency Evidence, as per the finding in Dempsey v R [2019] VSCA 224, applied in this case.
In our view, leave to appeal should refused, since we consider that the central pillar of the judge’s ruling is sound.
Sections 61 and 62 of the Jury Directions Act
The starting point of any analysis must be ss 61 and 62 of the JDA, which are in the following terms:
61 What must be proved beyond reasonable doubt
Unless an enactment otherwise provides, the only matters that the trial judge may direct the jury must be proved beyond reasonable doubt are—
(a) the elements of the offence charged or an alternative offence; and
(b) the absence of any relevant defence.
Notes
1 If the trial judge directs the jury about a matter referred to in paragraph (a) or (b) in the form of a factual question under section 67(2) or (3), the trial judge must direct the jury that it must be satisfied of that matter beyond reasonable doubt.
2 Section 46(4)(b) refers to specific matters that must be proved beyond reasonable doubt.
Examples
The trial judge may relate the evidence in the trial to directions under section 61 in many different ways, for example—
• when directing the jury that an element must be proved beyond reasonable doubt, the trial judge may refer to the evidence relied on by the prosecution to prove that element and direct the jury that it must be satisfied that that evidence proves that element beyond reasonable doubt; or
• where the only evidence relied on by the prosecution to prove an element is an alleged admission made by the accused, the trial judge may refer to the alleged admission and direct the jury that it must be satisfied that that evidence proves that element beyond reasonable doubt.
62 Abolition of common law obligation to give certain directions
Any rule of common law under which a trial judge in a criminal trial is required to direct the jury that a matter, other than a matter referred to in section 61, must be proved beyond reasonable doubt is abolished.
Notes
1 This provision abolishes—
• the rule attributed to Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 that in appropriate cases a jury must be directed that it must be satisfied beyond reasonable doubt of an indispensable intermediate fact; and
• the rule attributed to R v Sadler [2008] VSCA 198 that a jury must be directed that it must be satisfied beyond reasonable doubt of uncharged acts that the jury would use as a step in their process of reasoning towards guilt; and
• any other rule that requires a jury to be directed that it must be satisfied beyond reasonable doubt of any matter other than a matter referred to in section 61.
2 Section 4 applies generally to override any rule of law or practice to the contrary of this Act.
So far as relevant, s 61 provides that the only matters that the trial judge may direct the jury must be proved beyond reasonable doubt are ‘the elements of the offence charged’. Section 62 in turn abolishes any common law rule which provided that a trial judge was required to direct the jury that a matter other than the elements of the offence charged had to be proved beyond reasonable doubt.
Dempsey
Section 61 was briefly considered in Dempsey, a case in which charged conduct was relied upon by the prosecution as tendency evidence. In that case — an application for leave to appeal against two interlocutory decisions — the applicant had been charged with armed robbery (charge 1), murder (charge 2) and intentionally causing injury (charge 3). The murder and intentionally causing injury were alleged to have occurred a week after the armed robbery. All three offences were alleged to have occurred at the same premises, and the victims were allegedly lured to those premises in the same manner. It was alleged that the applicant acted alone in committing the first offence (armed robbery), but that he acted in company with a co-accused in committing the other offences.
The prosecution in Dempsey had filed a notice of tendency evidence pursuant to s 97(1)(a) of the Evidence Act 2008, notifying its intention to adduce tendency evidence in respect of charges 1 (armed robbery) and 2 (murder). The tendency relied on by the prosecution comprised what was said to be strikingly similar conduct that was engaged in to set up the encounter with each victim, so as to create the opportunity to commit an armed robbery on that victim. It was contended that the tendency of the applicant to act in the particular manner in which he did to set up each meeting, made it more likely that he was the offender on the first charge. When the application for leave to appeal first came before this Court for oral argument, however, the Court expressed concern that the reasoning that the prosecution sought to employ — in particular by using the evidence on charge 2 (murder) as tendency evidence to prove the identity of the offender in charge 1 (armed robbery) — was closely akin to coincidence reasoning. As a result of that expressed concern, the application was adjourned, and the prosecution served a notice of coincidence evidence pursuant to s 98(1)(a) of the Evidence Act 2008.
Subsequently, in giving judgment, the Court in Dempsey made the (uncontroversial) observation that tendency evidence is a form of circumstantial evidence. When the prosecution relies on tendency evidence, it seeks to establish that, because a person has or had a tendency to act in a particular way or to have a particular state of mind, it might be inferred that that person acted in the same way, or had the same state of mind, on the occasion of the offence which the person is alleged to have committed.[6] Importantly, when dealing with the grounds of appeal which challenged the admissibility of the alleged tendency evidence relied upon in that case, the Court said:[7]
As a preliminary observation, plainly the prosecution would not be able to use the evidence on charge 1, to prove the relevant intention of the applicant on charge 2, unless the jury is first satisfied that the applicant is the person who committed the armed robbery that is the subject of charge 1. Strictly, under s 61 of the Jury Directions Act 2015, it might not be necessary for the prosecution to prove that fact beyond reasonable doubt for that purpose.[8] However, if directions were given to the jury, regarding the use that might be made of the evidence on charge 1 as coincidence or tendency evidence on charge 2, by reference to a standard of proof lower than the criminal standard, that would confuse, and would be calculated to undermine, the criminal standard of proof that must be applied by the jury for it to convict the applicant on charge 1. Accordingly, in order that the evidence on charge 1 be admissible in proof of the intention of the applicant to commit the offence which is the subject of charge 2, it would be necessary for the jury, first, to be satisfied beyond reasonable doubt of the guilt of the applicant on charge 1.
[6]Dempsey, [57].
[7]Ibid [76] (emphasis added).
[8]Cf Shepherd v The Queen (1990) 170 CLR 573.
The applicant’s submissions in this Court
As we have said, the prosecution in the present case relies on each charged act in the indictment as tendency evidence. But whilst accepting that the jury will necessarily have to be directed that before they can convict the respondent on any given charge they will need to be satisfied that the prosecution has proved each element of that charge beyond reasonable doubt, the applicant’s counsel submitted in this Court — as had been submitted to the trial judge — that the jury must not be directed that they must be satisfied beyond reasonable doubt when using the charged conduct for tendency purposes. The applicant’s counsel submitted that the trial judge cannot direct the jury that they must be satisfied beyond reasonable doubt that the respondent had any of the asserted tendencies, nor direct the jury that in order to rely on any piece of evidence in proof of the asserted tendency, they must first be satisfied of that piece of evidence beyond reasonable doubt. Apart from being prohibited by the operation of s 61 of the JDA, counsel submitted, the proposed directions would impermissibly limit the evidence that the jury could take into account in considering whether the alleged tendencies have been established, to the uncharged acts and the charges that precede the charge then under consideration on the indictment.
Bauer
In advancing the submissions set out immediately above, counsel for the applicant placed substantial reliance on a passage from the High Court’s reasons in Bauer,[9] a case in which the prosecution successfully appealed against this Court’s judgment in Bauer (No 2).[10] In Bauer (No 2), the Court considered the admissibility of tendency evidence relied upon by the prosecution in a case of alleged sexual offending involving a single child complainant. The tendency evidence principally consisted of evidence from the complainant (and, to a lesser extent, her sister) and embraced both charged and uncharged acts. Ultimately, this Court determined that the tendency evidence did not have significant probative value, and should therefore have been excluded by the trial judge.[11] Significantly, this Court was not called upon to consider, however, s 61 of the JDA and its application to a situation in which the relevant tendency evidence consisted of both charged acts and uncharged acts.
[9]R v Bauer (2018) 266 CLR 56, 97–8 [86] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Bauer’).
[10]Bauer (a pseudonym) v The Queen (No 2) [2017] VSCA 176 (Priest, Kyrou and Kaye JJA) (‘Bauer (No 2)’).
[11]See ibid [80]–[83].
The High Court in Bauer upheld (among others) ground 2, which contended that this Court erred in holding that a substantial miscarriage of justice was occasioned by the admission of the relevant tendency evidence, and determined that this Court was wrong to hold that the relevant tendency evidence was inadmissible on the basis that it did not possess significant probative value.[12] Having done so, the Court went on to make certain obiter observations, upon which the applicant relied heavily in the present application, concerning the appropriate directions to be given in ‘single complainant sexual offences cases’. The Court said:[13]
Before departing from Ground 2, however, it is appropriate to say something further of the directions ordinarily to be given to a jury in a single complainant sexual offences case where the Crown is permitted to adduce evidence of uncharged acts as evidence of the accused having a sexual interest in the complainant and a tendency to act upon it. Where evidence is admitted on that basis, the trial judge should direct the jury that the Crown argues that the evidence establishes that the accused had a sexual interest in the complainant and a tendency to act upon it which the Crown contends makes it more likely that the accused committed the charged offence or offences. If the Crown also relies on the evidence as putting the charged offence or offences in context in some other identified fashion or respects, the trial judge should further direct the jury that the Crown contends that the evidence serves also to put the charged offence or offences in context and identify the manner or respects in which the Crown contends that it does so. The trial judge should stress that the evidence of uncharged acts has been admitted for those purposes and, if the jury are persuaded by it, that it is open to the jury to use the evidence in those ways, although no other. The trial judge should further stress that it is not enough, however, to convict the accused that the jury may be satisfied of the commission of the uncharged acts or that they establish that the accused had a sexual interest in the complainant on which the accused had acted in the past; it remains that the jury cannot find the accused guilty of any charged offence unless upon their consideration of all of the evidence relevant to the charge they are satisfied of the accused’s guilt of that offence beyond reasonable doubt. Contrary to the practice which has operated for some time in New South Wales,[14] trial judges in that State should not ordinarily direct a jury that, before they may act on evidence of uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt. Such a direction should not be necessary or desirable unless it is apprehended that, in the particular circumstances of the case, there is a significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt.[15] And, as explained earlier in these reasons, a trial judge is precluded from giving such a direction in Victoria.[16]
[12]Bauer, 89 [63]; 93–7 [72]–[82].
[13]Ibid 97–8 [86] (citations as in original).
[14]See, eg, DJV v The Queen (2008) 200 A Crim R 206 at 217 [30] per McClellan CJ at CL (Hidden J and Fullerton J agreeing at 227 [58], [59]); R v FDP (2008) 74 NSWLR 645 at 654 [38]; DJS v The Queen [2010] NSWCCA 200 at [54]-[55] per Hodgson JA (Kirby J and Whealy J agreeing at [86], [87]).
[15]Shepherd v The Queen (1990) 170 CLR 573 at 584–585 per Dawson J; Gipp v The Queen (1998) 194 CLR 106 at 133 [79] per McHugh and Hayne JJ; HML v The Queen (2008) 235 CLR 334 at 360-361 [31]-[32] per Gleeson CJ in diss on point; at 490 [477] per Crennan J in diss on point.
[16]See Jury Directions Act, ss 61, 62; Beqiri v The Queen [2017] VSCA 112 at [121], [130].
It is plain that the observations in the passage above are obiter dicta, albeit ‘seriously considered dicta’.[17] Importantly, they are limited to the directions ordinarily to be given to a jury in a single complainant sexual offences case in which the prosecution is permitted to adduce evidence of uncharged acts as tendency evidence. The Court made the following clear:
·First, where evidence of uncharged acts is admitted, the trial judge should direct the jury that the prosecution argues that the evidence establishes that the accused had a sexual interest in the complainant and a tendency to act upon it, making it more likely that the accused committed the charged offence or offences.
·Secondly, if the evidence of uncharged acts is also relied upon as context evidence (or similar), the trial judge should further direct the jury that the prosecution argues that the evidence also puts the charged offences in context (and identify how it is said that it does so).
·Thirdly, the trial judge should stress that the evidence of uncharged acts has been admitted for the identified purposes; and that, if the jury are persuaded by it, it is open to the jury to use the evidence in the identified ways (but no other).
·Fourthly, the trial judge should also stress that, if satisfied of the commission of the uncharged acts, or that they establish a sexual interest in the complainant on which the accused had acted in the past, it remains the case that the jury cannot find the accused guilty unless they are satisfied of the accused’s guilt beyond reasonable doubt on all of the evidence.
·Fifthly, in trials conducted in New South Wales — and, presumably other jurisdictions where s 97 of the Evidence Act applies — unless there is a significant possibility that the jury will treat the uncharged acts as an indispensable link in their chain of reasoning to guilt, trial judges ordinarily should not direct the jury that they must be satisfied of the proof of the uncharged acts beyond reasonable doubt.
·Sixthly, the situation in Victoria is governed by ss 61 and 62 of the JDA.
[17]Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 150–1 [134] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ); Vunilagi v The King [2023] HCA 24, [155] (Edelman J).
Post-Bauer
In the wake of Bauer, s 161A was introduced into the Criminal Procedure Act 1986 (NSW).[18] It provides:
[18]See Stronger Communities Legislation Amendment (Miscellaneous) Act 2020, sch 1, 1.8 [8]. The provision was introduced on 1 March 2021.
161A Direction not to be given regarding tendency or coincidence evidence
(1) A jury must not be directed that evidence needs to be proved beyond reasonable doubt to the extent that it is adduced as tendency evidence or coincidence evidence.
(2) If evidence is adduced as both tendency evidence or coincidence evidence and as proof of an element or essential fact of a charge before the jury, the jury may be directed that the evidence needs to be proved beyond reasonable doubt, but only to the extent that it is adduced as proof of the element or essential fact.
(3) Subsection (1) does not apply if a court is satisfied—
(a) there is a significant possibility that a jury will rely on an act or omission as being essential to its reasoning in reaching a finding of guilt, and
(b) evidence of the act or omission has been adduced as tendency evidence or coincidence evidence.
It will be noticed at the outset that s 161A is expressed in different terms to s 61 of the JDA,[19] which, to risk repetition, provides that the ‘only matters that the trial judge may direct the jury must be proved beyond reasonable doubt are … the elements of the offence charged’. The effect of s 161A is that, unless there is a significant possibility that the jury will rely on an act (or omission) introduced as tendency (or coincidence) evidence as being essential to its reasoning in reaching a finding of guilt, to the extent that the evidence is adduced as tendency (or coincidence) evidence the jury must not be directed that evidence needs to be proved beyond reasonable doubt. If evidence is adduced as both tendency (or coincidence) evidence and to prove an element of a charge, the jury may be directed that the evidence needs to be proved beyond reasonable doubt, but only to the extent that it is adduced as proof of the element of the charge.
[19]Cf JS v R [2022] NSWCCA 145, [45]–[46] (Basten JA, Hamill and Dhanji JJ agreeing) (‘JS’).
Since its introduction, s 161A has been considered by the New South Wales Court of Criminal Appeal in a number of cases.[20] In the most recent of those, Rassi, the appellant was convicted of four counts of sexual offending against a step-child sometime between 1995 and 1998. The prosecution relied on both charged acts and uncharged acts as tendency evidence. Hamill J, with whom Beech-Jones CJ at CL (‘subject to … six matters’) and Button J agreed, observed that in cases where the prosecution relies on tendency evidence, trial judges must formulate careful directions fashioned to address the particular circumstances of the case.[21] Such directions must guard against the improper use of tendency evidence and the potential for prejudice which is inherent in such evidence.[22] The fact that there was a single complainant, and that the acts relied upon to prove the asserted tendency included those forming the basis of the counts in the indictment, made it particularly important for the directions to be clear and precise.[23]
[20]JS; Kanbut v R [2022] NSWCCA 259 (Beech-Jones CJ at CL, Adamson and Campbell JJ); Gardiner v R [2023] NSWCCA 89 (Adamson JA, Button and McNaughton JJ); and Rassi v R [2023] NSWCCA 119 (Beech-Jones CJ at CL, Button and Hamill JJ) (‘Rassi’).
[21]Rassi, [73].
[22]Ibid [74].
[23]Ibid [77].
Further, Hamill J observed:[24]
With recent developments in the case law, and the introduction of s 161A of the Criminal Procedure Act, directions must also guard against the improper use of tendency evidence and ensure that the jury understands the onus and standard of proof. The directions must protect the accused against the risk that the jury may adopt a less rigorous standard of proof in relation to the charged offences.
[24]Ibid [78] (emphasis added to this and following passages).
Hamill J said[25] that s 161A
requires the jury to be directed clearly as to the standard of proof where the evidence is led in proof of an element or where it is an essential part of the circumstantial reasoning process. I accept there is a risk of inviting an impermissible and circular process of reasoning when the evidence is led for both purposes and where different standards of proof apparently apply to the same evidence, depending on the purpose for which it is being used. I also accept that the problem may be particularly acute in cases where there is a cascading level of seriousness in the allegations being relied on as tendency evidence.
[25]Ibid [99].
And he added:[26]
The provision creates significant difficulties for trial judges in formulating directions which both (a) comply with the prohibition is s 161A(1) and (b) do not invite the jury to engage in an impermissible circular reasoning process or to apply a less rigorous standard of proof to the counts on the indictment. However, the terms of the section leave little room for doubt that the Parliament intended that the evidence adduced in proof of the counts on the indictment can also be used in proof of the tendency asserted and that, in the latter regard, it is not incumbent on the Prosecutor to establish the relevant event(s) beyond reasonable doubt.
[26]Ibid [101].
Moreover, Hamill J observed that there is a concern that the jury may make a finding about the relevant conduct to some lesser standard, and then reason to a conclusion on the charges based on the finding made to the lesser standard.[27] Framing appropriate directions requiring the jury to disregard parts of the evidence — the acts giving rise to the charge under consideration — in deciding whether the alleged tendency exists, may result in confusion and lead the jury to approach the tendency case in an erroneous manner.[28] Hamill J said[29] he maintained his agreement generally with the judgment of Basten JA in JS, in particular, the following:[30]
It is the tendency that is relied on as circumstantial evidence in proof of the charge on the indictment. The proper approach is to have regard to all the evidence of relied on in proof of the tendency as evidence of the tendency alleged. To the extent that the jury is satisfied of the existence of the tendency, the tendency may be relied on in proof of the charge. Given this process, it is preferable not to direct a jury to make findings as to the conduct relied on in proof of a charge. Rather the jury should be directed with respect to finding the alleged tendency.
[27]Ibid [104].
[28]Ibid [106].
[29]Ibid [115].
[30]JS, [43].
Hamill J made the final observation:
Of course, the jury must also be directed — as occurred in the present case — that, in the end, the elements of each offence on the indictment must be established beyond reasonable doubt.
Discussion
We consider it to be plain that the observations from Bauer relied upon by the applicant,[31] are limited to the directions ordinarily to be given to a jury in a single complainant sexual offences case in which the prosecution is permitted to adduce evidence of uncharged acts as tendency evidence. The observations do not purport to extend to cases in which charged acts are relied upon as tendency evidence.[32] Nothing in them provides a mandate for a trial judge to direct the jury that they do not have to find a charged act relied upon by the prosecution to establish a relevant tendency to be proved beyond reasonable doubt. Since the tendency evidence in Bauer consisted of both charged and uncharged acts, had the Court been of the view that directions on charged acts relied upon to establish tendency evidence were to mirror those to be given when uncharged acts were so relied upon, presumably the Court would have said so.
[31]See [18]–[19] above.
[32]C.f. JS, [37]–[39] (Basten JA, Hamill and Dhanji JJ agreeing).
In our opinion, the circumstances of the present case are indistinguishable in any relevant sense from those of Dempsey. If the judge were to direct the jury that they need not be satisfied beyond reasonable doubt of the existence of any charged act in order to use it for tendency purposes, whilst concomitantly directing that they could not find the respondent guilty of any particular charge unless satisfied that the elements of that charge (including the particular charged act) had been proven beyond reasonable doubt, the criminal standard of proof would doubtlessly be confused, and unacceptably undermined.
During oral argument in this Court, in answer to a question from the Court, counsel for the applicant submitted that ‘to the extent that it provides that the judge is entitled to direct the jury that they must be satisfied of tendency evidence beyond reasonable doubt then [Dempsey] is not correctly decided’.
And we further note the following observations of Beech-Jones CJ at CL in Rassi:[33]
So far as the onus of proof is concerned, it is not circular reasoning for the jury to first consider whether, based on all the evidence adduced in support of the tendency, including the evidence adduced in support of the counts on the indictment, the asserted tendency is established and then consider whether each of the counts on the indictment is proven beyond reasonable doubt including by reference to the asserted tendency if the jury considers it to be established. This may involve the jury reconsidering the evidence on each count but if it does it will be undertaking each consideration at different stages of its deliberations with a different onus of proof and for a different purpose.
[33]Rassi, [9].
These observations from Rassi were made, however, against the backdrop of the regime created by the terms of s 161A of the Criminal Procedure Act 1986 (NSW). In the same case, as set out above,[34] Hamill J acknowledged that ‘there is a risk of inviting an impermissible and circular process of reasoning’ when evidence of charged acts is led both in proof of an element and as circumstantial evidence, ‘where different standards of proof apparently apply to the same evidence, depending on the purpose for which it is being used’. And he lamented that the provision ‘creates significant difficulties for trial judges in formulating directions which both (a) comply with the prohibition is s 161A(1) and (b) do not invite the jury to engage in an impermissible circular reasoning process or to apply a less rigorous standard of proof to the counts on the indictment’.
[34]See [24]–[25].
In our view, Dempsey should be followed. Section 61 of the JDA differs from the provision considered in Rassi and the cases that preceded it. By its clear terms, s 61 requires a trial judge to direct the jury that ‘the elements of the offence charged’ must be proved beyond reasonable doubt. In the present case, every sexual act alleged in every charge on the indictment is an element of that charge. A direction that any such element must be proved beyond reasonable doubt — no matter the use sought to be made of the evidence — would not offend s 61 of the JDA. Indeed, such a direction would plainly be in conformity with the section.
For these reasons, we consider that the judge was correct to hold that the jury should be directed that every charged act relied upon by the prosecution as tendency evidence must be proved beyond reasonable doubt before it can be so used. To direct differently would be to risk confusing, and unacceptably undermining, the criminal standard of proof. Indeed, we consider that to direct differently would be an invitation to the jury to indulge in an impermissible circular reasoning process, and to apply a less rigorous standard of proof to the charges on the indictment. We would add that the judge will not need to direct the jury ‘sequentially’, so long as it is made clear that none of the charged conduct may be used by the jury for the purposes of tendency reasoning unless the particular conduct has been proved to the jury’s satisfaction beyond reasonable doubt.
Conclusion
Leave to appeal against the interlocutory decision should be refused.
---
8
20
0