DPP v Roder

Case [2024] HCA 15

HIGH COURT OF AUSTRALIA

GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ

THE DIRECTOR OF PUBLIC PROSECUTIONS  APPLICANT

AND

BENJAMIN RODER (A PSEUDONYM)  RESPONDENT

Director of Public Prosecutions v Benjamin Roder (a pseudonym)

[2024] HCA 15

Date of Hearing: 13 March 2024
Date of Judgment: 17 April 2024

M85/2023

ORDER

1.Special leave to appeal is granted.

2.Appeal allowed.

3.Set aside the order of the Court of Appeal of the Supreme Court of Victoria made on 31 October 2023 and, in its place, order that:

(a)leave to appeal be granted and the appeal be allowed;

(b)the interlocutory decision of the County Court of Victoria made on 12 September 2023 be set aside; and

(c)the matter be remitted to the County Court of Victoria.

On appeal from the Supreme Court of Victoria

Representation

R J Orr KC, Solicitor-General for the State of Victoria, with S C Clancy and M-Q T Nguyen for the applicant (instructed by Office of Public Prosecutions (Vic))

T Kassimatis KC with C K Wareham for the respondent (instructed by Dribbin & Brown Criminal Lawyers)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Director of Public Prosecutions v Benjamin Roder (a pseudonym)

Criminal practice – Trial – Directions to jury – Tendency – Where respondent due to stand trial on charges of sexual offences committed against two children of former partner – Where prosecution served tendency notice stating intention to rely on evidence of uncharged and charged acts to support alleged tendency on part of respondent – Where respondent applied to trial judge for ruling about form of direction to be given to jury regarding standard of proof to be applied when addressing evidence of charged acts to determine whether alleged tendency established – Where trial judge ruled jury be directed that, before they use charged acts for tendency purposes, they must find that conduct to be proved beyond reasonable doubt – Where Court of Appeal upheld trial judge's proposed direction and found to direct otherwise would invite jury to engage in "circular reasoning" and "apply a less rigorous standard of proof" to charges than beyond reasonable doubt – Whether trial judge's proposed direction precluded by s 61 of Jury Directions Act 2015 (Vic) – Whether, in any event, erroneous for trial judge to give proposed direction.

Words and phrases – "beyond reasonable doubt", "charged act", "elements of the offence", "intermediate fact", "jury", "jury direction", "standard of proof", "tendency", "tendency direction", "tendency evidence".

Jury Directions Act 2015 (Vic), ss 61, 62.

  1. GAGELER CJ, GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH-JONES JJ.   In R v Dennis Bauer (a pseudonym), this Court observed that trial judges in New South Wales should not ordinarily direct a jury that, before they may act on evidence of uncharged acts adduced to support an alleged tendency on the part of an accused, they must be satisfied of proof of the uncharged…

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AGLC
Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15
Case
[2024] HCA 15
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the Director of Public Prosecutions against an interlocutory decision of the Victorian Court of Appeal concerning jury directions in a criminal trial. The respondent, Benjamin Roder, faced 27 charges of sexual offences against two children. The prosecution sought to adduce evidence of both uncharged and charged acts to establish a tendency on the part of the respondent. The central dispute revolved around the standard of proof the jury should apply when considering the charged acts as evidence of this alleged tendency.

The legal issues before the High Court were whether the trial judge's proposed direction, which required the jury to find charged acts proved beyond reasonable doubt before using them for tendency purposes, was precluded by section 61 of the *Jury Directions Act 2015* (Vic), and whether, in any event, such a direction was erroneous. The Court of Appeal had held that the trial judge's proposed direction was not precluded by the Act and that to direct otherwise would invite circular reasoning and a less rigorous standard of proof for the charges.

The High Court allowed the appeal, finding that the trial judge's proposed direction was indeed precluded by section 61 of the *Jury Directions Act 2015* (Vic), consistent with previous High Court authority in *Bauer*. The Court reasoned that the Act mandates that evidence of charged acts relied upon for tendency purposes must be proved to the same standard as the elements of the offence, which is beyond reasonable doubt. The Court of Appeal erred in concluding that a different approach was permissible for charged acts when used for tendency purposes, as this would undermine the statutory requirement and the principle that all elements of a charge must be proved beyond reasonable doubt. Consequently, the High Court set aside the order of the Court of Appeal and remitted the matter to the County Court of Victoria.

Orders

Orders of the court

1. Special leave to appeal is granted.

2. Appeal allowed.

3. Set aside the order of the Court of Appeal of the Supreme Court of Victoria made on 31 October 2023 and, in its place, order that:

(a) leave to appeal be granted and the appeal be allowed;

(b) the interlocutory decision of the County Court of Victoria made on 12 September 2023 be set aside; and

(c) the matter be remitted to the County Court of Victoria.

Background

Background to the litigation

In Bauer, this Court also observed that the giving of a direction to the effect that such uncharged acts should be proved beyond reasonable doubt is precluded in Victoria by ss 61 and 62 of the Jury Directions Act 2015 (Vic).[4] The principal question raised by this application is whether the same position applies in Victoria in relation to evidence of charged acts relied on to support an alleged tendency on the part of the accused. For the reasons that follow, the answer is "yes". As the Victorian Court of Appeal was wrong to conclude otherwise,[5] special leave to appeal should be granted, the appeal should be allowed and the trial judge's ruling to the contrary should be set aside.[4]Bauer (2018) 266 CLR 56 at 98 [86].[5]Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2023] VSCA 262 ("Roder") at [33].Background The respondent, Benjamin Roder, is due to stand trial in the County Court of Victoria on an indictment charging him with 27 sexual offences committed against two children of his former domestic partner, AB and CD.[6] [6]"Benjamin Roder" is a pseudonym. The initials of the complainants are not "AB" and "CD". The applicant, the Director of Public Prosecutions, served a notice on the respondent pursuant to s 97(1)(a) of the Evidence Act 2008 (Vic) stating an intention to adduce evidence that the respondent had a tendency to have a particular state of mind and to act in a particular way, which were both said to be applicable to proof of whether the acts constituting the alleged offences occurred (ie, a tendency notice). The particular state of mind was described in the notice as "an improper sexual interest" in AB and CD and a willingness to act on that interest "by engaging in sexual activity with them". The particular way of acting was described in the notice as the respondent using his "position of trust, physical proximity to and relationship with [AB and CD] to engage in sexual activity with each of them", "tak[ing] advantage of occasions when he was alone" with them to the same end, "engag[ing] in sexual activity with [AB and CD] when others were nearby and in circumstances where there was a high risk of detection", and "tell[ing] and/or threaten[ing] each of [AB and CD] to keep the offending 'a secret'". The tendency notice included a table specifying 33 pieces of evidence that were said to support the alleged tendency. Six of the entries concerned alleged incidents involving the respondent and either AB or CD that were not the subject of any of the charges on the indictment (ie, "uncharged acts"). The other 27 entries corresponded with an incident the subject of the charges on the indictment. Although these charged incidents were referred to as the "charged acts", several of those incidents included a combination of acts some of which do and some of which do not constitute the physical elements of the charged offence, although all acts are said to have occurred during the same incident. The trial judge's ruling Prior to the trial, the respondent applied to the trial judge for a ruling about the form of the direction to be given to the jury about the standard of proof to be applied when addressing the evidence of the charged acts for the purpose of determining whether the alleged tendency was established. The respondent conceded that the evidence of both the charged and uncharged acts was "cross‑admissib[le]" as tendency evidence.

Evidence

Evidence Before The Court

It follows that the first proposed ground of appeal should be upheld. However, the second proposed ground of appeal should also be addressed. Charged acts and tendency evidence Section 56(1) of the Evidence Act 2008 (Vic) specifies that, except as otherwise provided, evidence that is relevant (to proving the existence of a fact in issue)[31] in a proceeding is admissible in the proceeding. One provision that otherwise provides is s 97(1) of the Evidence Act. Section 97(1) precludes the admission of evidence of, inter alia, "a tendency that a person has or had ... to act in a particular way, or to have a particular state of mind" to prove that the person has or had that tendency unless "the party seeking to adduce the evidence [has given] reasonable notice in writing" and "the court thinks that the evidence will, either by itself or having regard to other evidence adduced or [sought] to be adduced ... have significant probative value". Section 101(2) precludes the prosecution from adducing such evidence about an accused "unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused". [31]Evidence Act 2008 (Vic), s 55(1). As noted, the cross‑admissibility of the evidence of the charged and uncharged acts as tendency evidence was accepted before the trial judge. Although the above provisions are to be applied by reference to the facts in issue on each charge on the indictment,[32] the acceptance that the evidence was cross‑admissible can be taken as an acceptance that each of the thresholds in those provisions was met in relation to each item of evidence relied on and each charge.[32]Hughes v The Queen (2017) 263 CLR 338 ("Hughes") at 391-392 [153], 423 [216]. Tendency evidence (or propensity evidence) is a form,[33] and indeed a "special class",[34] of circumstantial evidence. Prior to the "uniform" Evidence Acts[35] coming into force, and in recognition of its capacity to be strongly prejudicial, the admissibility of such evidence was treated as being governed by the test to be applied by juries in determining guilt by reference to circumstantial evidence, namely whether there was "no rational view of the evidence consistent with the innocence of the accused".[36] The common law principles governing the admissibility of tendency (or propensity) evidence were abrogated and replaced by the provisions of the relevant form of the Evidence Act,[37] which, for Victoria, have been noted earlier. However, as the passage from Bauer set out in the opening paragraph of this judgment confirms, and leaving aside the Jury Directions Act, the directions applicable to the standard of proof concerning tendency evidence have been treated as still being governed by the principles applicable to circumstantial evidence, specifically those stated in Shepherd. [33]HML v The Queen (2008) 235 CLR 334 at 401-402 [181], 493 [489], 500 [506]; Bauer (2018) 266 CLR 56 at 83 [50].[34]Pfennig v The Queen (1995) 182 CLR 461 ("Pfennig") at 482-483.[35]Evidence Act 1995 (Cth); Evidence Act 1995 (NSW); Evidence Act2001 (Tas); Evidence Act2008 (Vic); Evidence Act2011 (ACT); Evidence (National Uniform Legislation)Act 2011 (NT). [36]HML v The Queen (2008) 235 CLR 334 at 493-494 [489], citing Pfennig (1995) 182 CLR 461 at 482-484. The Court in Pfennig held that "'rational' must be taken to mean 'reasonable'": Pfennig (1995) 182 CLR 461 at 483. [37]Hughes (2017) 263 CLR 338 at 353 [31].

Decision

Reasons for decision

GAGELER CJ, GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH-JONES JJ
The trial judge ruled that the jury would be directed that, before they could use the uncharged acts for tendency purposes, they must find that those acts occurred without his Honour identifying any applicable standard of proof but, in order to use the charged acts for tendency purposes, the jury must find that conduct to be proved beyond reasonable doubt. His Honour also ruled (or at least stated) that the jury would be "instructed sequentially" by, firstly, recommending that they decide whether the six uncharged acts occurred and, secondly, instructing them that, when considering the first charge, they apply the principles concerning tendency reasoning based on the uncharged acts that they accepted, then apply those principles to the second charge based on the uncharged acts that they accepted and the first charge if it was proved beyond reasonable doubt (and so on for each of the 27 charges). The Court of Appeal's decision The applicant applied for leave to appeal from the trial judge's "interlocutory decision",[7] being the ruling described above, to the Court of Appeal. The trial judge certified that the decision was of "sufficient importance to the trial to justify it being determined on an interlocutory appeal".[8] [7]Criminal Procedure Act 2009 (Vic), ss 3, 295(2).[8]Criminal Procedure Act, s 295(3)(b). The Court of Appeal (Priest, Niall and Taylor JJA) noted the effect of the above principles from Bauer, but considered that they were "limited to the directions ordinarily to be given to a jury in a single complainant sexual offences case in which the prosecution [was] permitted to adduce evidence of uncharged acts as tendency evidence".[9] The Court found that 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 also 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 proved beyond reasonable doubt, would be "confusing" and invite the jury to "indulge" in "impermissible circular reasoning" and "apply a less rigorous standard of proof to the charges on the indictment" than beyond reasonable doubt.[10] The Court did not accept that the direction proposed by the trial judge was precluded by s 61 of the Jury Directions Act.[11] The Court added that it was not necessary for the trial judge to direct the jury "sequentially", provided it was made clear that the charged conduct could not be used for tendency purposes unless it had been proved beyond reasonable doubt.[12][9]Roder [2023] VSCA 262 at [28].[10]Roder [2023] VSCA 262 at [29], [34].[11]Roder [2023] VSCA 262 at [33].[12]Roder [2023] VSCA 262 at [34]. The applicant sought special leave to appeal from the Court of Appeal's judgment to this Court. On 7 December 2023, Gordon J referred the application to the Full Court. The applicant raised two proposed grounds of appeal, being that the direction proposed by the trial judge was precluded by s 61 of the Jury Directions Act and that, even if it was not precluded, it would be erroneous for the trial judge to give the proposed direction. Each proposed ground will be addressed in turn. The Jury Directions Act

Ratio Decidendi

Legal Principle Established

Established by: GAGELER CJ, GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH-JONES JJ

Full text does not contain this section.