Hamilton (a pseudonym) v The Queen

The High Court of Australia considered an appeal by a man, referred to pseudonymously as Hamilton, against his conviction for ten counts of aggravated indecent assault. The charges involved three of his children. Hamilton did not request that the counts be tried separately, and his defence at trial was that the complainants' evidence was inconsistent and had been fabricated.

The central legal issue before the High Court was whether the trial had miscarried due to the trial judge's failure to give an "anti-tendency" direction to the jury. The appellant argued that such a direction was necessary to prevent the jury from impermissibly using evidence relating to one count to infer guilt on another count, particularly given the multiple complainants and the stark contest of credibility. The trial judge had instead given a "Murray direction," requiring the jury to be satisfied of the honesty and reliability of each child's evidence in relation to each specific count, and had directed the jury to consider each count separately.

The High Court reasoned that the "Murray direction" and the separate consideration direction effectively focused the jury on the honesty and reliability of each complainant's evidence for each count. If the jury were satisfied of the honesty and reliability of each complainant's evidence in accordance with these directions, then convictions would follow directly, and there would be no occasion to resort to tendency reasoning. The Court noted that the failure of the appellant's trial counsel to seek an anti-tendency direction was a deliberate forensic strategy, not an oversight, and that counsel had successfully resisted the Crown's own tendency application. The Court found that this strategic decision, coupled with the directions that were given, meant there was no perceptible risk of a miscarriage of justice.

The appeal was dismissed.