Director of Public Prosecutions v Roder (a pseudonym)

The case of Director of Public Prosecutions v Roder concerns an interlocutory appeal regarding sexual offences and the admissibility of tendency evidence. The defendant, Roder, was charged with various sexual offences. The prosecution sought to introduce both charged and uncharged acts as tendency evidence, aiming to establish a pattern of behaviour. The legal issues at the heart of the case revolve around the standard of proof applicable to such evidence and whether the jury should be directed that the charged acts must be proved beyond reasonable doubt, as per the principles established in R v Bauer (2018) 266 CLR 56 and Dempsey (a pseudonym) v The Queen [2019] VSCA 224. These issues are particularly relevant given the introduction of s 161A of the Criminal Procedure Act 1986 (NSW), which was enacted in response to Bauer and seeks to clarify the direction to be given to juries in relation to tendency evidence.

The court was tasked with interpreting s 161A, which was introduced to address the confusion caused by Bauer regarding the standard of proof for tendency evidence. The court examined the legislative history and purpose of s 161A, ultimately determining that unless there is a significant possibility that the jury will rely on the tendency evidence as essential to its reasoning in reaching a finding of guilt, the jury must not be directed that such evidence needs to be proved beyond reasonable doubt. However, if evidence is adduced as both tendency evidence and to prove an element of the 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. The court found that the trial judge should have provided clear directions to the jury to avoid any potential prejudice from the tendency evidence, particularly given the single complainant and the inclusion of acts forming the basis of the charges.

The appeal was dismissed, and the matter was remitted to the trial court for further consideration of the directions to be given to the jury. The court emphasised the need for trial judges to formulate careful and precise directions in cases involving tendency evidence to ensure the proper use of such evidence and to mitigate the risk of prejudice. The case underscores the importance of clear judicial directions in criminal trials, particularly in cases involving sensitive and potentially prejudicial evidence.