Heng v The King

The appeal concerned a criminal conviction for sexual offences, brought by the appellant, Heng, against The King. The appeal was heard by Livesey P, S Doyle and Stanley JJ. The central dispute revolved around the admissibility and treatment of certain evidence by the trial judge, particularly evidence of discreditable conduct and the complainant's subsequent actions.

The legal issues before the appellate court included whether the trial judge had adequately directed the jury regarding the use of evidence of discreditable conduct, specifically concerning the prohibition against "bad person" reasoning. The court was also required to determine if the trial judge had erred in his treatment of the complainant's conduct following the alleged offences, including her complaint to her mother, and whether any such errors amounted to a miscarriage of justice.

The court reasoned that the trial judge had adequately identified the discreditable conduct, its relevance, and its permissible and impermissible uses. It was noted that the judge had warned himself against "bad person" reasoning and had used the evidence of discreditable conduct in a manner consistent with permissible contextual uses, such as demonstrating a credible escalation of behaviours and highlighting the brazenness of the appellant's actions. The court also considered whether certain touching during a basketball game could be characterised as discreditable conduct, concluding that in the context of the age difference and the nature of the interactions, it could be. Furthermore, the court doubted whether much of the conduct relied upon as uncharged discreditable conduct could be meaningfully separated from the charged conduct to attract the operation of s 34P of the Evidence Act, referencing the reasoning in *Police v Rosales* where prior conduct was considered part of the *res gestae* of the charged offence.

The appeal was dismissed. The court found no inadequacy in the judge's directions or treatment of the evidence of discreditable conduct, nor any error of law or miscarriage of justice established in relation to the grounds concerning the complainant's conduct after the alleged offending.