New v The King

[2025] NSWCCA 32

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

New v R [2025] NSWCCA 32

Hearing dates:

20 November 2024

Date of orders:

24 December 2024 and 12 March 2025

Decision date:

12 March 2025

Before:

Mitchelmore JA at [1]
Fagan J at [20]
Dhanji J at [117]

Decision:

Orders made on 24 December 2024:

(1)    Grant leave to appeal.

(2)    Allow the appeal.

(3)    Quash the conviction with respect to count 1 on the indictment dated 7 September 2022.

(4)    Quash the conviction with respect to the single count on the indictment dated 21 October 2022.

(5)    Quash the aggregate sentence imposed by O’Rourke DCJ on 23 September 2023.

(6)    The question whether the Court should direct the entry of verdicts of acquittal on the counts in respect of which the convictions have been quashed or order a new trial on those counts is reserved for determination on the papers, following receipt of submissions from the parties.

Additional orders:

(1)    With respect to the offence in count 1 on the indictment dated 7 September 2022, enter a verdict of acquittal;

(2)    With respect to the offence in the single count on the indictment dated 21 October 2022, enter a verdict of acquittal;

(3)    With respect to the offence that the appellant on 29 October 2020 did an act with the intention of perverting the course of justice, the appellant is sentenced to imprisonment for 14 months, with a non-parole period of 10 months commencing on 12 September 2023. The non-parole period expired on 11 July 2024. The total sentence expired on 11 November 2024.

Catchwords:

CRIME – appeals – appeal against convictions – sexual offences – distinction between second and third limbs of s 6(1) of the Criminal Appeal Act 1912 (NSW) – wrong decision on any question of law – miscarriage of justice – leave to appeal granted – appeal allowed in part – convictions quashed – whether Court should enter verdicts of acquittal or order new trial – verdicts of acquittal entered – resentenced for pervert the course of justice offence

CRIME – appeals – appeal against sentence – successful conviction appeal – aggregate sentence quashed – not necessary to determine sentence appeal

EVIDENCE – admissibility – tendency – whether trial judge erred by admitting tendency evidence – whether miscarriage of justice occasioned – tendency to intentionally touch body of unconscious female – where tendency suffered from degree of generality – where Crown relied on significantly less serious conduct alleged by tendency witness to prove offence – where evidence did not directly support tendency – weighing of probative value against prejudicial effect

EVIDENCE – tendency directions to jury – whether omission to direct jury occasioned miscarriage of justice – whether direction involved error – where jury directed to make anterior findings as to charged and uncharged conduct – standard of proof undermined – real risk jury deflected from fundamental task

Legislation Cited:

Appeals Act 1972 (Nauru), s 14(3)

Bail Act 2013 (NSW), s 10

Crimes Act 1900 (NSW), s 61HE, s 61HI, s 61HK, s 61l, s 61KC(a), s 319

Crimes (Appeal and Review) Act 2001 (NSW), s 68A

Criminal Appeal Act 1912 (NSW), s 5(1)(b), s 6, s 7(1A), s 8

Criminal Procedure Act 1986 (NSW), s 161A(1), s 306I

Evidence Act 1995 (NSW), s 4, s 97(1), s 101, s 192A

Evidence Regulation 2020 (NSW), Reg 5

Jury Directions Act 2015 (Vic)

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:

AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8

ALS v R [2013] NSWCCA 63

AW v R [2023] NSWCCA 92

Burns-Dederer v R [2023] NSWCCA 191

Col v R (2013) 237 A Crim R 67; [2013] NSWCCA 302

Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60

Dao v R (2011) 81 NSWLR 568; [2011] NSWCCA 63

Decision Restricted [2022] NSWCCA 246

Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; [1984] HCA 48

Director of Public Prosecutions v Benjamin Roder (a pseudonym) (2024) 98 ALJR 644; [2024] HCA 15

Doggett v The Queen (2001) 208 CLR 343; [2001] HCA 46

Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28

Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40

Gilham v R [2012] NSWCCA 131; 224 A Crim R 22

Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44

Harrigan v R [2005] NSWCCA 449

HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35

Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20

Huxley v The Queen (2023) 98 ALJR 62; [2023] HCA 40

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14

JS v R [2022] NSWCCA 145

Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60

MDP v The King [2024] HCATrans 84 (3 December 2024)

Pandamooz v R [2023] NSWCCA 221

Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7

Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4

R v Anderson (1991) 53 A Crim R 421

R v Fletcher (2005) 156 A Crim R 308; [2005] NSWCCA 338

R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306

R v Lazarus [2017] NSWCCA 279

R v Perish (2016) 92 NSWLR 161; [2016] NSWCCA 89

R v Thomas (No 3) [2006] VSCA 300

Reid v The Queen [1980] AC 343; [1979] 2 All ER 904

Spies v The Queen (2001) 201 CLR 603; [2000] HCA 43

Stubley v State of Western Australia (2011) 242 CLR 374; [2011] HCA 7

The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35

The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40

The Queen v Taufahema (2007) 228 CLR 232; [2007] HCA 11

TL v The King (2022) 275 CLR 83; [2022] HCA 35

Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16

Vagg v R [2020] NSWCCA 134

Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81

WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142

Zhou v R [2021] NSWCCA 278

Category:

Principal judgment

Parties:

Jack New (Appellant)
Rex (Respondent)

Representation:

Counsel:
S Buchen SC with A Burkitt (Appellant)
E Nicholson with E McGinness (Respondent)

Solicitors:
J Sutton Associates (Appellant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2020/309541; 2020/309553; 2022/10078

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

27 September 2022

Before:

O’Rourke SC DCJ

File Number(s):

2020/00309541; 2020/00309553; 2021/00010078

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant was found guilty of two sexual offences against two different complainants, AP and EM, following two trials by jury conducted in September 2022 and September 2023. Count 1 alleged that the appellant intentionally touched AP sexually without her consent and knowing that she was not consenting, contrary to s 61KC(a) of the Crimes Act 1900 (NSW). Count 2 alleged that the appellant had sexual intercourse with EM without her consent and knowing that she was not consenting, contrary to s 61I of the Crimes Act. O’Rourke DCJ sentenced the appellant to an aggregate sentence of 6 years’ imprisonment with a non-parole period of 3 years and 7 months for the two sexual offences and for an additional offence of perverting the course of justice contrary to s 319 of the Crimes Act, to which the appellant had pleaded guilty on 17 October 2022.

The appellant sought leave to appeal against his convictions for the sexual offences on the basis of four grounds. The grounds of appeal all related to tendency evidence given over objection. The appellant also sought leave to appeal against the aggregate sentence imposed on him by O’Rourke DCJ on the basis of three grounds.

On 24 December 2024, the Court made orders granting leave to appeal, allowing the appeal, quashing the convictions with respect to the sexual offences, and quashing the aggregate sentence imposed by O’Rourke DCJ.

The Court held, providing reasons for joining the orders on 24 December 2024, entering verdicts of acquittal with respect to the sexual offences and resentencing for the pervert the course of justice offence:

As to all grounds, per Dhanji J (Mitchelmore JA and Fagan J agreeing):

The relevant evidence for this Court’s consideration of a ground based on the admission of tendency evidence is the evidence actually admitted at trial (at [204]). Grounds of appeal should be framed with this in mind.

R v Fletcher (2005) 156 A Crim R 308; [2005] NSWCCA 338 and Col v R (2013) 237 A Crim R 67; [2013] NSWCCA 302 not followed.

As to ground 1, per Dhanji J (Mitchelmore JA agreeing)

1. The evidence that the appellant had a tendency to sexually touch women while they were unconscious made it more likely that he did so on the occasions alleged in the counts (at [221]) and had significant probative value satisfying s 97(1) Evidence Act 1995 (NSW) (at [228]).

While there was a danger of unfair prejudice to the appellant, it did not outweigh the probative value of the evidence: s 101 of the Evidence Act. Ground 1 was not upheld (at [234]-[242]).

Per Fagan J:

The learned judge should not have admitted the evidence that was adduced for tendency purposes for counts 1 and 2 as it did not have substantial probative value. The evidence should also have been rejected under s 101, upon weighing the danger of unfair prejudice against such minimal probative value as the tendency material might have contributed. Ground 1 should be upheld (at [91]-[96]).

As to grounds 2(a) and 2(b), per Dhanji J (Mitchelmore JA and Fagan J agreeing)

FK’s further evidence did not directly support a tendency to sexually touch unconscious women. It was, rather, evidence of the non-consensual sexual touching of a conscious woman in an apparent attempt to engage in further, consensual, sexual activity (at [245]).

The evidence was both extremely damaging, and not probative of the asserted tendency. Grounds 2(a) and 2(b) were upheld (at [248]-[250]).

As to ground 3, per Dhanji J (Mitchelmore JA agreeing, Fagan J not deciding)

With respect to the sexual intercourse offence against EM, the absence of directions said to be required would not have deflected the jury from their task (at [265]). Similarly, there was no omission to direct relevant to reasoning with respect to the allegation of AP so as to occasion a miscarriage of justice. Ground 3 was not upheld (at [266]-[267]).

As to ground 4, per Dhanji J (Mitchelmore JA agreeing, Fagan J not deciding)

There was a real risk in this case that the jury, in following the directions given and making findings as to the occurrence of the events relied on for a tendency purpose was “deflected from its fundamental task”. That is because the directions as to the standard of proof were undermined. Ground 4 should be upheld (at [300]).

As to whether to acquit the appellant for the sexual offences or order a new trial, per Dhanji J (Fagan J agreeing in separate reasons, Mitchelmore JA in dissent)

Despite the powerful factors that might otherwise warrant an order for a further trial, it would be oppressive to submit the appellant to such a trial. The appropriate order is to finalise the proceedings by entering acquittals (at [322]).

His Honour imposed a sentence of 14 months with a non-parole period of 10 months commencing on 12 September 2023 (at [335]).

Per Mitchelmore JA:

The matters that support the interests of justice in favour of entering acquittals in the present case are not such as to outweigh the interests in support of an order for a new trial (at [17]).

Subject to her Honour’s different view as to the overall outcome, her Honour agreed with the sentence Dhanji J imposed (at [19]).

JUDGMENT

1. MITCHELMORE JA: The appellant, Jack New, sought leave to appeal against his convictions for an offence contrary to s 61KC(a) of the Crimes Act 1900 (NSW), and an offence contrary s 61I of the Crimes Act. He also sought leave to appeal against the aggregate sentence imposed on him in the District Court for those two offences and a further offence of perverting the course of justice, contrary to s 319 of the Crimes Act, to which he entered a plea of guilty.

2. The offences under ss 61KC(a) and 61I of the Crimes Act involved different complainants. The indictment charged that:

1. between 1 March 2019 and 5 April 2019, the appellant intentionally touched AP sexually without her consent and knowing that she was not consenting (the s 61KC(a) count); and

2. on or about 14 December 2019, the appellant had sexual intercourse with EM without her consent and knowing that she was not consenting (the s 61I count).

3. Following a trial conducted by O’Rourke DCJ sitting with a jury in September 2022, the jury found the appellant guilty on the s 61KC(a) count involving AP, and was unable to reach a verdict on the s 61I count involving EM. A second trial on the s 61I count involving EM was conducted in September 2023, again by O’Rourke DCJ sitting with a jury, following which the jury found the appellant guilty. On 4 April 2024, the appellant was sentenced for those two counts and for the offence of perverting the course of justice. The latter offence had been severed from the original indictment by consent, and the appellant entered a plea of guilty on 17 October 2022, a few weeks after the jury’s verdict in the first trial. Her Honour imposed an aggregate sentence of 6 years imprisonment, with a non-parole period of 3 years and 7 months.

4. On 20 November 2024, this Court heard oral arguments on the conviction and sentence appeals. On 24 December 2024, the Court made orders which are set out in full in the reasons of Dhanji J (at [118]). The orders included granting leave to appeal, allowing the appeal, quashing the convictions for the offences contrary to s 61KC(a) and s 61I of the Crimes Act, and quashing the aggregate sentence.

5. The focus of the appellant’s conviction appeal was the admissibility of tendency evidence which the trial judge ruled was admissible over the appellant’s objection, the scope of the tendency evidence as it was ultimately led in both trials, and the trial judge’s directions in relation to that evidence. The grounds of appeal were as follows:

“Ground 1: The trial judge erred by admitting evidence that the applicant had a tendency to act in a particular way, namely, ‘to intentionally touch the body of an unconscious female (unconscious because the female was sleeping or highly intoxicated) with his hands and/or penis’.

Ground 2(a): The trial judge erred by admitting the entirety of FK’s evidence as tendency evidence.

Ground 2(b): A miscarriage of justice was occasioned because the evidence FK gave at trial was not ruled inadmissible and withdrawn from the jury.

Ground 3: A miscarriage of justice was occasioned by the trial judge omitting to direct the jury to ensure that the tendency evidence was not misused.

Ground 4: The tendency direction involved error as the jury in each trial was directed to make anterior findings as to whether charged and uncharged conduct occurred and to do so after considering all of the evidence.”

6. Before joining in the orders that the Court made on 24 December 2024, I had the significant advantage of reading in draft the reasons for judgment of Dhanji J addressing the background of the two trials and the tendency evidence, and the grounds of appeal. I agree that grounds 2(a) and 2(b) (which his Honour addresses together) and ground 4 should be upheld with respect to both convictions, and that grounds 1 and 3 should not be upheld, for the reasons his Honour gives.

7. In the written submissions filed on the conviction appeal, the appellant submitted that in the event that the Court upheld any one or more of the grounds then his convictions should be quashed and a retrial ordered. In quashing the convictions on 24 December 2024, the Court reserved the question of whether it should direct the entry of verdicts of acquittal on the counts in respect of which the convictions were quashed or order a new trial on those counts. The Court made directions for submissions with a view to determining the question on the papers.

8. On 7 February 2025, the Crown filed written submissions in accordance with the Court’s orders, submitting that the Court should make an order for a new trial. The appellant filed written submissions on 17 February 2025 in support of acquittals. The Court granted leave to the Crown to file submissions in reply, in which the Crown submitted that the factors that the appellant advanced in support of acquittals did not outweigh the matters that favoured a new trial.

9. The appellant noted in his submissions that if ground 1 were upheld and the tendency evidence was ruled inadmissible in its entirety, a further joint trial of both counts would be unlikely. As I agree with the reasons given by Dhanji J that ground 1 should not be upheld, a further joint trial would be the likely outcome of an order for a new trial.

10. In their respective reasons for judgment below, both Fagan J and Dhanji J have given careful and detailed consideration to the issue and have determined that acquittals should be entered. Although I have not found the issue easy to resolve, ultimately I have reached the view that a new trial should be ordered. As mine is a minority view I will state my reasons briefly. In WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142 (“WX”), Beech-Jones CJ at CL provided the following succinct summary of the applicable provisions of the Criminal Appeal Act 1912 (NSW) and the principles:

“[92] Section 6(2) of the Criminal Appeal Act provides that ‘[s]ubject to the special provisions of this Act, the court shall, if it allows an appeal under section 5(1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered’. One of the ‘special provisions’ to which s 6(1) refers is s 8(1). It provides:

‘8 Power of court to grant new trial

(1) On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make.’

[93] The principles governing the exercise of the power to order a new trial under s 8(1) were distilled by McClellan CJ at CL in Gilham v R (2012) 224 A Crim R 22; [2012] NSWCCA 131 at [648]-[660]. It can only be exercised if the evidence presented at trial was sufficiently cogent to justify a conviction (Gilham at [648]) which in this case it was. Otherwise, unless the interests of justice require the entry of an acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge: Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 at [104].”

11. Justice Dhanji has extracted below at [314] the non-exhaustive list of factors that McClellan CJ at CL identified in Gilhamv R [2012] NSWCCA 131; (2012) 224 A Crim R 22 at [649] as bearing on where the interests of justice lie. The relative weight to be attached to the various factors “may vary widely from case to case according to its particular circumstances”: Reid v The Queen [1980] AC 343; [1979] 2 All ER 904 (“Reid”) at 349; R v Lazarus [2017] NSWCCA 279; (2017) 270 A Crim R 378 (“Lazarus”) at [157] (Bellew J, Hoeben CJ at CL and Davies J agreeing).

12. In support of the interests of justice requiring entry of acquittals in the present case, it is significant that any further trial would be the appellant’s third trial. I have summarised the chronology of the trials in [3] above. The allegations date back to March-April 2019 (in relation to AP) and December 2019 (in relation to EM); and as Dhanji J observes below (at [320]), the appellant was charged in October 2020, at which time he was 28 years old. Taking into account a further period for a retrial, the delay in bringing the appellant to trial is undesirable: see Lazarus at [159]. It is also of significance that the appellant spent 1 year, 3 months and 12 days in custody before the aggregate sentence was quashed.

11. In sentencing the appellant on 4 April 2024, the sentencing judge accepted that “[the appellant] clearly has mental health issues and they have and will make his time in custody more onerous than the average inmate”. What her Honour there said about the appellant’s custody having already proved more onerous than average (the appellant had been in custody for more than six months at the date of sentence) demonstrated what the appellant submitted in this Court regarding the adverse psychological impact of his experience in custody and that he otherwise sought to prove through the tender of additional psychological reports, to which the Crown objected. Assuming for argument’s sake that the content of those reports were given in an admissible form (the reports as tendered were not admissible for the reasons Dhanji J gives below), such content would not in my view have added materially to the evidence already before the Court. This was the appellant’s first time in a custodial environment, and the Crown did not challenge the diagnoses of the appellant in the medical reports on sentence, which included expressions of opinion as to his likely vulnerability to others in custody.

12. As Bellew J observed in Lazarus at [161], whilst recognising that any criminal trial is an ordeal for a complainant, it is also an ordeal for an accused. A further trial would involve a third occasion on which the appellant would be put through that ordeal. That he has been released from custody is also relevant in this respect.

13. I have also considered the appellant’s submissions that the Crown was responsible for any error leading to the convictions being quashed. As McClellan CJ at CL stated in Gilham, a relevant factor is whether a retrial would “impermissibly give the prosecution an opportunity to supplement or ‘patch up’ a defective case or to present a case significantly different to that presented to the jury in the previous trial”. The reasons of Gleeson CJ in R vAnderson (1991) 53 A Crim R 421 provide an example, with his Honour stating at 453:

“The trial of the appellant miscarried principally because of an error which resulted in large part from the failure of the prosecuting authorities adequately to check aspects of the Jayawardene theory [being the case theory ultimately relied on by the Crown]. This was compounded by what I regard as an inappropriate and unfair attempt by the Crown to persuade the jury to draw inferences of fact, and accept argumentative suggestions, that were not properly open on the evidence and that were in some respects contrary to the evidence. I do not consider that in those circumstances the Crown should be given a further opportunity to patch up its case against the appellant. It has already made one attempt too many to do that, and I believe that, if that attempt had never been made, there is a strong likelihood that the appellant would have been acquitted.”

16. The grounds of appeal that the Court has unanimously upheld are grounds 2(a) and 2(b). Those grounds concerned part of the evidence of a witness, FK, led as tendency evidence, which did not satisfy the test of significant probative value in s 97(1) of the Evidence Act. Some of that evidence was, in the words of Dhanji J, extremely damaging (see [248] below). Unlike other cases where a retrial has been ordered (as, for example, in WX), it cannot be said that the Crown played no role in the convictions being quashed. It was evidence that the Crown led, albeit following a ruling of the trial judge as to its admissibility (made on the basis of the witness statements as opposed to the evidence ultimately led in the trial). It is a factor to be considered, although it is not one that I would give the weight that has been attributed to it in other cases having regard to the circumstances. For the reasons explained by Dhanji J in relation to ground 1, the balance of the tendency evidence, including other evidence given by FK, was admissible.

17. In my view, the matters that support the interests of justice in favour of entering acquittals in the present case are not such as to outweigh the interests in support of an order for a new trial. The evidence led by the Crown was sufficiently cogent to justify conviction, and it would remain so without the evidence that was the subject of grounds 2(a) and 2(b). There is an obvious public interest in the prosecution of offenders charged with serious criminal conduct: Lazarus at [160]. There is also the public interest in not usurping the role of the Director of Public Prosecutions (DPP) in deciding to prosecute (see WX at [95] and [100]), and the desirability of having the guilt or innocence of an accused person finally determined by a jury: R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 at [51]. Relevantly in this context, in ALS v R [2013] NSWCCA 63 Beech-Jones J stated at [116]:

“Merely because this Court orders a new trial does not mean that the respondent must proceed with one. Whether or not it will do so will no doubt depend on a careful assessment by it of various factors. However, I do not consider that its assessment should be foreclosed by an order made by this Court (see R v Thomas (No 3) [2006] VSCA 300; 181 A Crim R 323 at [27]).”

An assessment by the DPP in the present case would include consideration of the matters that were the subject of the reports regarding the appellant’s experience of custody and his current psychological state, to which objection was taken when the appellant sought to rely on them when the question of acquittal or retrial was raised.

18. Accordingly, I would have made an order for a new trial on the two counts for which the appellant’s convictions were quashed. Consistently with the approach taken in the court below, in which the sentence proceedings for all offences awaited the conclusion of the second trial, given my decision regarding retrial I would have remitted to the District Court the resentence for the perverting the course of justice offence, to which the appellant pleaded guilty. On the decision of the majority of this Court to enter acquittals on the charges under s 61KC(a) and s 61I of the Crimes Act, it remains to resentence the appellant for that offence.

19. As I noted above, the orders of the Court on 24 December 2024 included an order quashing the aggregate sentence. That order rendered it unnecessary to determine the appellant’s appeal against that sentence, which included a ground of appeal that was specific to the sentencing judge’s rejection of evidence he gave in relation to the perverting the course of justice offence. In the reasons of Dhanji J below, his Honour has proceeded to resentence the appellant for the offence pursuant to s 7(1A) of the Criminal Appeal Act. In so doing his Honour has addressed the appellant’s complaint on the ground of the sentence appeal that was specific to this offence. I have considered the reasons for judgment of Dhanji J on the resentence, and subject to my different view as to the overall outcome I agree with the sentence his Honour has imposed for that offence, for the reasons his Honour has given.

20. FAGAN J: This judgment records my reasons for having joined in the orders of the Court pronounced on 24 December last, whereby the convictions of the appellant on two counts of sexual offending were quashed. The orders are reproduced by Dhanji J at [118]. Later paragraphs explain the basis upon which I have concluded that there should be no order for retrial and that verdicts of acquittal should be entered.

21. Before joining in the orders quashing the convictions I had the advantage of reading Dhanji J’s draft judgment, now published in settled form. I am indebted for his Honour’s summation of the principles upon which tendency evidence may be received in a criminal trial and his overview of the two trials from which the appeal is brought. I agree with his Honour that significant parts of the evidence of FK were not admissible to prove the tendency propounded by the Crown, so that grounds 2(a) and 2(b) should be upheld with respect to both convictions. I am of the further view that none of the evidence adduced solely in proof of the tendency should have been received, so that ground 1 should also be upheld.

22. The charge of indecent assault of AP (s 61KC(a) of the Crimes Act 1900 (NSW)) was count 1 on the indictment presented at the first trial in September 2022. The charge of sexual intercourse without consent (s 61I of the Crimes Act) concerning EM was count 2. As a shorthand I will refer to the latter charge as count 2 although, following the jury’s failure to return a verdict on that charge in the first trial, it became the sole count on the indictment dated 21 October 2022 presented at the appellant’s second trial in September 2023.

The formulation of the putative tendency in the s 97 notice

23. The tendency propounded in the Crown’s notice dated 20 July 2022 under s 97 of the Evidence Act 1995 (NSW) was as follows:

[The appellant’s] tendency to act in a particular way, namely to intentionally touch the body of an unconscious female (unconscious because the female was sleeping or highly intoxicated and/or drug affected) with his hands and/or penis.

24. I agree with Dhanji J that the tendency propounded in the notice was understood by the trial judge, the Crown and defence counsel, in both trials, as a tendency to touch unconscious women in a sexual manner knowing that they were unconscious. That understanding involved some interpolation and implication to overcome poor drafting.

25. Evidence to substantiate the tendency was directed to proof of sexual touching of AP and FK and sexual penetration of EM while those three young women, respectively, were asleep. It was alleged that each of them woke to find that sexual contact was taking place. “Unconscious” means in a state of not being awake and not aware of or responsive to one’s environment. It includes the state of being asleep. However, to describe a person as unconscious would commonly be understood to mean that the person is not able to be roused and that the unconscious state has been brought about not by falling asleep but by ingesting in intoxicant or by accident or medical event, such as insult to the brain through head injury, or hypoxia due to reduced cerebral blood supply.

26. The Crown did not allege that either of the complainants or the tendency witness, FK, was unconscious in that commonly understood sense. Each of them was rousable and, on the Crown case, each did wake in response to physical contact by the appellant. Given the facts that were alleged in counts 1 and 2, the only tendency that could have been relevant was a component or subset of the tendency formulated by the Crown under the broad term “unconscious”; namely, a tendency to touch sleeping women in a sexual manner knowing that they were asleep.

27. As Dhanji J has pointed out, ground 1 should be decided upon the admissibility or otherwise of the evidence as it was given in the trial, not by reference to the evidence that was anticipated when the pre-trial tendency ruling was made. Like his Honour, I would not find it useful to analyse the learned trial judge’s reasons for her pre-trial ruling. The standard to be applied on appeal is whether reception of the disputed tendency evidence was correct, rather than whether the trial judge’s decision was open to her on the basis that she applied correct principles, took into account relevant considerations and so on: The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 (hereafter: The Queen v Bauer) at [61].

Grounds 2(a) and (b) – indecent assault upon AP – September 2022 trial

28. I will commence with consideration of grounds 2(a) and 2(b) in relation to the conduct of the first trial and the resulting conviction of the appellant on count 1. I will thereafter consider those grounds in relation to the second trial and the conviction on count 2. It is necessary that I should first summarise AP’s evidence on count 1 and then the evidence of EM and FK, both of whom were tendency witnesses only, so far as the case on count 1 was concerned.

Evidence of AP in the September 2022 trial

29. AP gave evidence that from about September 2018 she was “intimate sexually” with the appellant but that she considered the relationship “casual” and not “serious”. Those descriptions were allowed to stand without elaboration. They would have been understood by the jury to mean that from about September 2018 the appellant and AP had sexual intercourse with each other consensually but so far as AP was concerned this was not accompanied by emotional involvement or commitment. AP did not give evidence that at any time she felt affection for, or had any personal interest in, the appellant. No evidence was adduced of the frequency of intercourse in this physical relationship. The appellant was 26 years old in late 2018 and AP was 21.

30. When AP was asked whether her relationship with the appellant changed from the beginning of 2019, she did not suggest that it ceased to be a sexual relationship but only that the following was agreed between the two of them:

We had decided to be in an open relationship.

It meant that we were able to see other people besides each other.

31. AP said that she and the appellant moved into a studio apartment together from the end of February 2019. There was only one bed in the apartment and it would have been clear to the jury that AP and the appellant slept in it together routinely during the period of approximately one month immediately preceding the date of the alleged indecent assault. When asked whether the relationship changed after they commenced to live together and whether they were happy, AP gave the following answers:

It was still an open relationship.

We were having a lot of arguments.

Just about being intimate with other people and being intimate with each other.

32. The effect of this evidence was that AP and the appellant continued their casual sexual relationship whilst residing together, having intercourse at an unstated frequency, and they regarded themselves as individually free to engage in sexual intercourse with other partners. AP said that it was only the appellant who had “a problem” about “being intimate with other people”, which the jury would have understood as meaning that he was not happy about AP having intercourse with other partners. She said that the appellant was also unhappy “about me not being as intimate as he would like me to be with him”, apparently meaning that she did not have sexual intercourse with him as often as he would have liked. In cross-examination AP denied that she ever complained to the appellant about him staying in contact with ex-girlfriends. The relationship between AP and the appellant continued to be “open” while they lived together in the apartment during March 2019.

33. During the evening of 28 March AP went out with a female friend and consumed approximately 10 standard drinks between about 7:00 pm and 1:00 am the next morning. The appellant was not with her. AP described herself as “quite drunk” when she arrived back at the apartment and “passed out” lying crosswise over the foot of the bed. She was wearing underpants and a short top, leaving her midriff bare. The appellant was not present.

34. AP’s description of events constituting the indecent assault commenced with her waking up, feeling a weight on her body. That turned out to be the appellant lying on top of her. She was on her back and he was facing her with his head a little lower than her own, towards her chest. The appellant was touching her breasts and nipples under her top and touching her vagina under her pants. She pushed him off and the following exchange ensued (based upon AP’s evidence in chief and in cross-examination):

AP   What are you doing?

Appellant   What?

AP   What are you doing?

Appellant   You asked me to.

AP   How could I? I’m asleep.

Appellant   No, no, you asked me to.

35. AP agreed in cross-examination that the appellant looked confused at the commencement of that exchange. She said she had not consented to being touched in the sexual manner that she described. In cross-examination the appellant’s counsel put to AP that “this assault you’ve told us about” did not occur. He suggested that she might be mistaken in her recollection because she was drunk on the night in question. AP rejected those propositions. The only element of count 1 on which defence counsel challenged AP was the physical element of whether the sexual touching took place. However, counsel made clear in his opening address that in order to prove the charge the Crown would have to satisfy the jury that the complainant did not consent and “that the accused had sufficient awareness of lack of consent, if you find there to be such”. The absence of cross-examination on the second and third elements was not inconsistent with there being live issues on those matters.

Evidence of EM in the September 2022 trial

36. In the first trial EM said she met the appellant in June 2019. The appellant was then 27 years old and EM was 21. In late July or August 2019 she had dinner with him at his house. His sister and the sister’s boyfriend were also present. After they had left, EM watched a movie with the appellant, lying on his bed. He asked if he could kiss her and she declined. She went to sleep on the bed, fully clothed. She gave the following evidence about the circumstances in which she woke up the next morning:

A. […] I woke up to him just touching my chest and rubbing his penis against my butt. And I wasn't really sure at that point if he was awake or.

Q. If he was rubbing his penis against your butt, was he behind you?

A. Yes.

Q. Were you facing each other, or away from him?

A. I was facing away from him.

Q. What did you do after you felt this?

A. I wasn't quite sure if he was awake, or if he was doing it while he was asleep, so I was just basically trying to get away from him and I just turned onto my stomach. But then he continued doing it.

37. EM gave evidence that they then had a discussion, lying on the bed together, in which he said he wanted to have intercourse with her and she said she did not want that. He also said he wanted to take her on a date. EM responded with a number of reasons why a romantic relationship between them was not practical or appropriate.

38. EM said that later during August 2019 she did go out with the appellant and that she first had sexual intercourse with him during that month. She said that their sexual relationship was initially satisfactory but conflict soon developed because the appellant often wanted intercourse when she did not. EM said he would “just touch me and rub his penis against my butt and just try and get me to sleep with him”. EM used the expression “sleep with” on a number of occasions during her evidence, consistently to convey the meaning have sexual intercourse with. She said that the appellant’s persistence and her refusal would progress to an argument and then she would “just give in” and have sex with him anyway.

39. On the night of 13-14 December 2019 EM and the appellant took a room together at a hotel in Double Bay to celebrate EM’s 21^st birthday. EM said that after checking in they had consensual intercourse in the room before going down to dinner. Back in the room after dinner the appellant mixed two “caps” of MDMA in a bottle of champagne. The two of them consumed that between about 8:30 pm and midnight, following which they had sexual intercourse again, twice, consensually. The appellant took photographs of EM in bed, also with her consent. EM described the circumstances in which she fell asleep in the following answers:

I only remember that I - that we finished the second time and I said that I needed a break because I could feel that I was crashing again, just getting really tired and just out of it, so I asked for a break. […] - and that's all I remember, then I just fell asleep on that side.

I was fully naked.

40. In cross-examination EM said this:

I made very clear that I needed a break from having sex, I then rolled over. […] I remember it very distinctively that I did tell him.

41. EM described how she woke up later during the night, after an interval of sleeping that was not specified in the evidence:

I remember waking up on my stomach and feeling his penis inside of my vagina. I could feel his body, just, thrusting, and my body moving from that.

Q. What's your next memory?

A. I, kind of, froze. I couldn't really say anything at first. I wasn't quite sure what was going on but associated - but at some point I started saying stop. I believe the first few times he didn't hear me. I may have mumbled but, at some point when I said it clear enough, he then stopped.

42. EM said that the appellant then withdrew and sat on the end of the bed. She said she became hysterical, apparently because the appellant’s acts had stirred a memory of a traumatic kidnapping of herself during her childhood in Germany, when she was 11 years old. In cross-examination she elaborated that she was “kidnapped … by trick” by a male person named Steinwedel but “he never touched me”. EM said that, upon being woken by the appellant penetrating her, she feared that the person having intercourse with her was Steinwedel. She gave this answer:

I didn’t believe that it was him. I was triggered and I thought irrationally. Reminded of him.

She said that at that time she was still very much affected by the MDMA. She agreed that she had later described the situation to a friend in Germany as follows:

I was captured suddenly in a trauma because of MD[MA].

43. EM said that for about five minutes the appellant tried to talk to her but she ignored him. She gave the following evidence about the next exchange of words between them:

A. […] I asked him why he had done that, and he said he thought that I was there.

44. According to EM, the appellant then went back to sleep and she tried to do the same but could not. She lay “in the exact position as [shown in a photograph, Ex J] all night, just trying to get sleep, but couldn't really”. She said that “in the morning, he tried to get close to me again”. She described that as follows in evidence in chief:

A. He tried to - he tried to have sex with [me], just did the usual just touching me, and rubbing his penis against me from behind me […]

45. In cross-examination EM described that as follows:

A. Well, he touched me. He touched my breasts and he rubbed his penis against my butt. It's a very normal way for him to - well, used to be a very normal way for him to wake me up.

Q. Are you saying that you were asleep when that happened?

A. I wasn't asleep when that happened.

46. EM said that she rebuffed that sexual approach in the early morning and a conversation ensued between them as follows:

A. […] I very clearly rejected him.

Q. How did you reject him?

A. I just sat up. I think I just - when he did it, I just sat up, and I was, like, why would you do that?

Q. When you said, "Why would you do that?", what did he say?

A. He asked me what I was talking about. It just was "what do you mean?", and I said, "Why would you have sex with me when I'm asleep", and then he just said, again, that he thought that I was there.

Q. Are those the words that you remember to the best of your ability today?

A. He just said something like he's not trying to invalidate my feelings, but he thought I was there, and said sorry […].

47. EM and the appellant socialised with friends throughout that day, at various drinking establishments. They continued to see each other over the next week or so until the appellant went to Japan for an extended stay. On one more occasion before his departure they had intercourse. Up until the appellant left for Japan EM continued to express to the appellant her upset over the sexual intercourse while she was asleep. The appellant repeatedly apologised. On 22 December 2019 EM exchanged electronic messages with a friend in Germany who was evidently familiar with the background of her childhood kidnapping trauma. EM described to her friend what had occurred in the hotel room and how she had reacted. While the appellant was in Japan he and EM exchanged messages in which they continued to discuss her upset over the incident and his regret. He returned to Australia in late January 2020 and the same discussion was carried on until EM ended the relationship in March of that year.

48. At about the end of the first week of May 2020 EM was admitted to a psychiatric hospital. According to her evidence she had symptoms of post traumatic stress disorder at that time. EM and the appellant exchanged dozens of text messages in mid-June 2020, in a number of which the appellant asserted that he had believed EM was awake when he had intercourse with her. He claimed that she “made noises” and “reacted”. EM accepted that he “didn’t do it on purpose” but she said, “the truth is you raped me”.

49. In about June 2020 EM told a female friend what had occurred in the Double Bay hotel room. She gave the following evidence about the female friend’s response:

A. […] She obviously knew a different story, and when I told her what happened, she told me that she knew that there had been situations with other girls that have been a bit iffy, but she never - she's never gotten to speak to them about it.

Q. Did she tell you the name of a person?

A. Yeah, she said it was [AP].

50. No objection was taken to that evidence and no appeal ground is raised in respect of it. However, it illustrates how the reception of tendency evidence in this case brought with it looseness and lack of discipline about the introduction of inadmissible and prejudicial statements. The witness referred to unspecified “situations” with an indeterminate number of “other girls” that had been a bit “iffy” in some respect that was unparticularised but implicitly discreditable. That was gratuitous, damaging and inadmissible. It impugned the character of the appellant as a person with a propensity for sexual offending, or at least misconduct. Combined with the inadmissible evidence given by FK, considered below, this hearsay was calculated to inflame the jury against the appellant, suggesting that the two charged instances were merely the tip of an iceberg.

51. EM gave evidence that soon after the June 2020 phone call with her female friend she met with AP to discuss their respective experiences of the appellant. AP gave evidence of that meeting to similar effect. After discussion between them that day they went together to a police station and made statements that led to the commencement of the prosecution of the appellant on both counts.

Evidence of FK in the September 2022 trial

52. FK said that she met the appellant in March 2018. She declined a few invitations from him for dinner and lunch dates but they socialised as friends in a group on “quite a few occasions”. After late nights out FK often invited the appellant back to the house she shared with a housemate. On those occasions FK and the appellant often stayed up chatting late at night and FK would allow the appellant to stay over, sleeping in her bed. She gave this evidence:

But I made clear that it was just as friends that he could stay over.

[…]

[…] I mean, it wasn’t really a conversation, it would just be me saying “just as friends” or “nothing’s going to happen like that”.

53. Notwithstanding that FK set those boundaries, she described what occurred when the appellant shared her bed as follows:

He often would press up against me while I slept and put his arm around me and most of the time, I would move away or say “no” and then move away.

FK did not suggest that either she or the appellant was naked when this occurred. The jury would likely have inferred that they would both have been clothed, in view of FK’s instructions to the appellant that “nothing is going to happen”. FK did not say what part of the appellant’s body he would “press up against” her or what part of her body he would make contact with.

54. FK said that on some occasions when she and the appellant had been socialising and she had been drinking, the appellant would kiss her. She said this:

Not initiated by me because I didn’t want that, always initiated by him, but I wouldn't reject him a lot of the time, mainly because I’d been drinking. But when it came to him coming back to my house and sleeping in my bed, I knew I didn’t want anything further to happen so I always made it clear I didn’t want anything else.

55. Despite the fact that FK allowed the appellant to kiss her on occasions, she tried to avoid any further development of intimacy between them, as follows:

I knew what was implied when inviting someone to come and sleep over in your bed and I wanted him to know that that’s not what I was implying. So it wouldn't necessarily be about the kissing or when we were out, but I would always make it clear when I said, “You can stay over”, that I didn’t want anything further to happen.

56. FK said she was told by the appellant that he had been in a relationship with AP but that it had ended. She thought she was told this in “about mid 2018”. After he had told her of breaking off with AP, up to January 2019 when FK commenced a relationship with someone else and ceased contact with the appellant, FK said that the appellant continued to stay over and share her bed, as before. She gave these answers:

Q. So again, this particular period in time when you would share a bed together, would anything occur?

A. Yes, he would press up against me while I slept and touch me and seemed to try to initiate sex, but I always woke up and said, no, and let me sleep, and would move over in the bed away from him, and this would happen a few times throughout the night.

Q. When this would happen, would he ever say anything to you?

A. Most of the time, no, not that I can remember.

Q. Was there any other particular occasion that you recall?

A. Yes, there was - there was one morning, when he was doing the same thing. I was trying to sleep, or was asleep at first, and felt him pressing up against me from behind, and I said, "no, no Jack, let me sleep", moved over in the bed, and he did it again, and I moved over in the bed, and there came a point where I was - there wasn't anywhere left to go. I was next to [the] wall because my bed's against the wall, and I was between Jack and the wall, and I couldn't sleep, and he was pressing up against me, and so I got out of the bed, and I stepped over him and got out of the bed, and said, "No means no. I just want to sleep".

Q. Did he say anything to you after you said that?

A. He didn't, no. He just sat in the bed and looked upset.

57. FK said that subsequent to the last-mentioned incident she had sexual intercourse with the appellant on three occasions but then she told him that she had not wanted that to happen and that it would not happen again. They continued sharing her bed on occasions and the appellant usually pressed up against her and put his arm over her but she “never let it go as far as sex again”.

58. There was a conflict between FK’s recollection of what the appellant told her about when his relationship with AP ended and AP’s evidence that that relationship ran from mid-2018 to the end of March 2019. The conflict was not reconciled by any further evidence.

59. FK said that in mid-2020 she was told by EM that she had been staying in a hotel with the appellant and that she had “woken up and he'd been having sex with her when she was asleep”. FK had then discussed that with the appellant on a video call. At the conclusion of FK’s evidence in chief the prosecutor adduced the following answers:

Q. During that video chat, did he admit to you that he had an issue with pressuring girls for sex?

A. Yes, he did.

Q. Did he indicate to you that he was either working on the issue or intended on working on that issue of about pressuring girls in sex?

A. Yes, he said he was going to get help for it.

Q. Did you confront Jack and say that you thought that what happened with [EM] was rape?

A. Yes, I did.

Q. Did he deny that?

A. Yes, he did.

60. That evidence was adduced by arrangement between the prosecutor and defence counsel as a compromise with respect to more expansive evidence, of which the Crown had given notice, concerning a conversation between FK and the appellant. Both at trial and on appeal the Crown submitted that the passage quoted above was evidence of an admission regarding count 2. I do not accept that the statements attributed by FK to the appellant bore that character. In any event, in the trial of the appellant on count 1, evidence of count 2 could only have been admissible to prove tendency and the appellant had objected globally to tendency evidence.

61. In closing address in the first trial the prosecutor submitted the following to the jury:

It was the unchallenged evidence that the accused admitted to [FK] that he had an issue with pressuring girls for sex, he claimed that he was seeking help for it. Now, the Crown says, you would be open to find that this is consistent with the accused’s tendency evidence and the allegations generally. You will be directed in more detail about this by her Honour, but you are entitled to consider all of that evidence, the manner in which the accused acted towards these three women over the course of 2018 and 2019 while they were sleeping, and decide whether or not any of this evidence shows the tendency I have suggested in the accused.

62. In her summing up in the first trial the learned judge referred to FK’s evidence that the appellant “told her that he had an issue pressuring girls for sex”. After reminding the jury of three other statements by the appellant, of which evidence had been given, her Honour said this:

Now in relation to those four statements by the accused, the Crown submits that those statements made by him are admissions by the accused that he did do what is alleged by [EM] and that he has the tendency that is alleged by them.

63. In the second trial, wherein this evidence from FK was tendered on count 2, the Crown’s final address and the learned judge’s summing up contained passages in nearly identical terms to those quoted above.

Parts of FK’s evidence probative of the tendency

64. The appellant pressing up against FK and putting his arm around her on numerous occasions when he shared her bed was open to be understood by the jury as sexual touching. It was of a significantly less direct and intrusive nature than the sexual touching of AP alleged in count 1, especially because the evidence did not show that either FK or the appellant was unclothed on any occasion when this occurred. It was open to the jury to accept FK’s evidence that the appellant’s contact with her was against her wishes as expressly conveyed before they lay down in bed together, that it occurred while she was asleep, that it woke her and that the appellant stopped when she objected. To that point her evidence was capable of supporting the tendency formulated by the Crown, interpreted as explained at the end of [26] above.

A portion of FK’s evidence not probative of the tendency

65. However, FK’s evidence of the occasion when the appellant continued to make bodily contact with her over an extended period while she was awake, eventually driving her to escape his attentions by climbing over him and out of the bed, had no probative value for establishing the tendency. That episode had nothing to do with proving a tendency to touch a sleeping female in a sexual way, knowing she was sleeping. It was a description of a series of uncharged indecent assaults perpetrated in disregard of FK’s explicit indications of non-consent both before and during the course of the sexual touching. As it was not probative of the tendency, which was the only putative purpose for which it was adduced, it was inadmissible.

Impact of the inadmissible evidence of persistence with FK while awake

66. It was open to the jury to be satisfied beyond reasonable doubt that the appellant touched AP in the manner and in the circumstances she described and that she did not in fact consent. There was no evidence that the appellant knew how much AP had drunk, or how recently, or to what extent the alcohol had affected her. AP described herself as having “passed out”. The evidence did not suggest that that meant anything other than that she fell asleep under the influence of alcohol. There was no evidence from which the jury could infer that the appellant knew any more about her state than that she was sleeping.

67. The inadmissible evidence from FK about persistent sexual contact with her while she was awake portrayed the appellant as having a propensity to soldier on sexually touching a person with whom he had no established sexual relationship, heedless of clear communication that his attentions were unwanted. That was damaging to him, yet entirely collateral to the allegations in count 1, which concerned whether he knew of, or was reckless as to, the non-consent of a female who was in an intimate relationship with him but was asleep. The fact that this first inadmissible portion of FK’s evidence was introduced is sufficient to sustain grounds 2(a) and (b).

Second portion of FK’s evidence not probative of the tendency

68. In support of grounds 2(a) and (b) the appellant also refers to FK’s evidence that he admitted to having “an issue with pressuring girls for sex” (see [59] above). I accept the appellant’s submission that that was also irrelevant to proof of the alleged tendency. Pressuring might take the form of wheedling or imploring or threatening or intimidating, amongst other possible meanings of that broad term. Any conduct within the broad concept “pressuring” could only be directed, logically, against a female who was awake. As paraphrased by FK, what the appellant said to her about his “issue with pressuring girls” was not an admission that could be related to the alleged tendency to touch in a sexual way females who were asleep, knowing them to be asleep. The admission attributed by FK to the appellant that he was “going to get help” for this “issue” tended to suggest some form of personality or mental disorder. That, again, would not be probative of the specified tendency because of the looseness of the term “pressuring”.

69. As the appellant correctly submits, the Crown expressly informed the trial judge that FK was “a tendency witness only”. The extract from the prosecutor’s closing address quoted at [61] above was consistent with that. Defence counsel apparently thought the pre-trial ruling foreclosed objection to this portion of FK’s evidence. Having regard to the way the Crown addressed the jury and the terms in which the learned judge summed up, any objection on behalf of the appellant would have been futile in the face of the tendency ruling. There was no justification for adducing this material from FK. It was incapable of supporting the asserted tendency. It was irrelevant. The charges had nothing to do with “pressuring girls for sex”. Each count alleged that the appellant took advantage of his partner to engage in sexual activity with her when she was asleep and when “pressure” was not required. FK’s evidence that the appellant admitted needing “help” for an “issue with pressuring girls for sex” was highly prejudicial. It conveyed to the jury that uncontrolled sexual urges caused the appellant to misconduct himself, generally, towards the opposite sex.

70. The erroneous reception of this further passage of FK’s evidence independently supports grounds 2(a) and (b) with respect to count 1.

Ground 1 – indecent assault upon AP – September 2022 trial

71. By ground 1 the appellant contends that all evidence admitted solely in proof of the alleged tendency was wrongly received. In the first trial, on count 1, the tendency material consisted of EM’s evidence of sexual touching while she was asleep on an occasion prior to the commencement of their sexual relationship (see [36] above), EM’s evidence of the sexual intercourse alleged in count 2 and FK’s evidence of repeated instances of sexual touching during sleep when the appellant shared her bed.

71. On count 1 all elements were put in issue by the plea of not guilty. The appellant did not confine his case. The alleged tendency could not logically have any role to play in proving the element of AP’s non-consent. The tendency was directed to increasing the likelihood that the appellant committed the acts alleged and that he knew AP was asleep at the time. By the date of the incident alleged in count 1, AP had lived with the appellant and shared a bed with him for one month. Their sexual relationship had commenced several months before that and was continuing. In those circumstances knowledge that AP was sleeping did not necessarily exclude a reasonable doubt as to whether the appellant knew of or was reckless about AP not consenting; it did not necessarily exclude a reasonable possibility that the appellant may have believed AP consented implicitly. Considerations bearing upon knowledge of non-consent in a continuing relationship are discussed further below. Nevertheless, if the Crown could prove that the appellant knew AP was asleep, that would be one significant circumstance upon which it could rely towards proving the element of knowledge of non-consent.

72. In a continuing sexual relationship between a couple such as the appellant and AP, who cohabit and routinely share a bed, it could not be regarded as unusual or notable that the man would, on occasion, sexually touch the woman without prior discussion, including when the woman is sleeping. That would surely be common human behaviour between familiar sex partners, as a prelude to the woman waking and either being aroused to engage in intercourse, or not. On the basis that there was sufficient attraction between the appellant and AP for them to have taken part in consensual sex from time to time, sexual touching to some extent in circumstances as referred to above would be an unsurprising incident of their continuing intimate relationship. In my view a jury could not rationally find that, on the occasion in question, it was more likely the appellant would have sexually touched AP while she was asleep because he had touched other women, EM and FK, when sharing a bed with them and trying to interest them in sexual activity. Sexual touching of a sleeping bed partner of the opposite sex, for whom the person doing the touching has a physical attraction, appears to me to be such an unremarkable phenomenon that the probability of it having occurred on an occasion charged could not logically be increased by proof that it had occurred with one or more other bed partners on other occasions.

73. In order to be significantly probative (as stipulated in s 97(1)(b) of the Evidence Act), a tendency to act in a certain way need not necessarily be striking or extraordinary. However, this case was of a type in which the probative value of the tendency evidence depended upon commonality of significant features of the acts committed against the tendency witnesses and the act alleged to have been committed against AP in count 1. In The Queen v Bauer the High Court said this at [57]-[59]:

[57]   The conclusion of the majority in Hughes v The Queen [2017] HCA 20 that particular features of the offending imbued the subject tendency evidence with significant probative value reflected the process of probability reasoning that applies to cases where an accused is charged with a number of sexual offences committed against a multiplicity of complainants. […]

[58]   In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant [citations omitted]. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.

[59]   Hughes v The Queen illustrates the point. The case involved multiple complainants each alleging that the accused had committed one or more sexual offences against her, where the offences that were alleged to have been committed against some groups of complainants were in significant respects different in kind and circumstance from the sexual offences alleged to have been committed against each other group of complainants. It was not disputed that evidence of each sexual offence alleged to have been committed against a complainant was admissible as tendency evidence in proof of other sexual offences alleged to have been committed against that complainant, even though, in some cases, the nature of the offending differed significantly from one charge to another. The issue was how much if any of each complainant's evidence of the sexual offences and uncharged acts alleged to have been committed against her was admissible as tendency evidence in proof of the sexual offences alleged to have been committed against the other complainants. And the case was ultimately decided by majority on the basis that, taken as a whole, the evidence of each alleged sexual offence and uncharged act demonstrated a common feature that a man of mature years had a sexual interest in female children under 16 years of age and a tendency to act upon it by committing sexual offences against them opportunistically in circumstances which entailed a high risk of detection. In the view of the majority, such was the significance of that common feature that evidence of each alleged sexual offence and uncharged act had significant probative value in proof of each other charged offence.

75. In the present appeal the Crown reiterated the learned trial judge’s analysis that there were “common features that [link] all three [ie AP, EM and FK] together” and that these made the tendency “highly probative in assessing whether he did in fact sexually assault each complainant/tendency witness as alleged” ([42]-[43] of the pre-trial judgment). The learned judge’s list of common features, relied upon by the Crown, is as follows:

(1)   They were all touched in similar ways.

(2)   Whilst then in or when the accused was seeking out a romantic relationship with them, typically where there has been no indication [they] would consent and where the female has then indicated her lack of consent.

(3)   In the two instances where he was confronted the accused alleges there was in fact consent despite their lack of consciousness.

(4)   Temporal component between all three.

(5)   All in a bed with the accused.

(6)   All alone in a room together.

76. With respect, I do not accept point (1). The touching of FK was materially different from and less invasive than any of the touching of AP or EM. That includes comparison with the first uncharged incident described by EM, which involved the appellant pressing his penis against her, a feature not alleged by FK. The sexual contact in counts 1 and 2 was of an entirely different character from any of the uncharged instances and the degree and seriousness of contact differed considerably as between the two counts.

77. The substance of point (2) is merely that the sexual acts alleged to constitute the tendency all involved females with whom the appellant was attempting to establish, or was carrying on, a sexual relationship. They were not strangers to him. The additional proposition included in this point, that two of the women “then indicated [their] lack of consent”, is not an aspect of the appellant’s acts or state of mind and it cannot be regarded as a feature of the tendency.

78. Point (3) concerns the appellant’s conduct after committing acts alleged to exhibit the tendency. Such conduct is not a feature of the tendency itself.

79. Point (4) is apparently intended to mean that all events took place in 2018 and 2019. That does not appear to add anything to the coherence or probative value of the tendency.

80. Points (5) and (6) merely describe the setting of the incidents. The setting was inherent in the respective relationships between the appellant and each of the three women, as covered in point (2). The setting was not part of a chosen modus operandi that gave his conduct probative hallmarks.

81. Taken all together these points amounted to nothing of probative importance. The only features common to the appellant’s conduct alleged in the tendency evidence and to what was alleged in count 1 were the bare facts of sexually touching a woman when he knew her to be asleep. There was no commonality of the manner of touching, or of the nature of the relationship between the parties, or of any other surrounding circumstance or notable feature. The acts that were said to demonstrate the tendency did not exhibit any distinctive, probative link either to each other or to the act charged in count 1. The requirement of s 97(1)(b) was not satisfied.

82. Without the tendency evidence it would have been well open to the jury to accept AP’s evidence that the appellant touched her sexually while she was asleep, in circumstances from which the jury could infer that he must have known she was asleep. The propounding of the tendency, which in my view was incapable and superfluous for the purpose of proving any element of the offence, served only to introduce otherwise irrelevant and prejudicially damaging evidence of the appellant’s sexual conduct towards two other women.

83. Formulation of the tendency in terms of touching “the body of an unconscious female” tended to obscure the frailty of the Crown’s claim that the tendency was probative. A practice of sexually touching a female who is unconscious in the commonly understood sense referred to at [225] above, for the purpose of deriving gratification in part from the fact of her unconsciousness, might well be regarded by a jury as notable and distinctive and probative of similar conduct on an occasion charged. But despite the language used to frame the tendency, the evidence did not establish any such significant common feature, only that the female concerned was, in each instance, asleep.

84. If, contrary to my view, it should be thought that the Crown’s tendency had “significant probative value” with respect to any element of count 1, I would nevertheless conclude that the evidence should not have been received because such probative value would not outweigh “the danger of unfair prejudice to the defendant”: s 101 of the Evidence Act. Aside from the tendency, the case against the appellant on count 1 was weak with respect to knowledge of non-consent, taking into account the parties’ cohabitation and their otherwise consensual sexual relationship. If the evidence of EM and FK had some probative value for count 1 that I am unable to perceive, that evidence nevertheless carried a vastly disproportionate danger of causing the jury to disapprove of the appellant’s conduct towards women, in a way that might irrationally influence their findings of fact and their verdict.

85. In particular, the evidence of EM presented the jury with an allegation that the appellant fully engaged in non-consensual sex with her, thereby taking advantage of her being asleep in a manner much more serious than what was alleged in count 1 itself. The tendency evidence of FK concerned sexual touching during sleep that was less invasive than what was charged in count 1 and was said to have occurred while the parties were, apparently, clothed. However, FK’s evidence introduced allegations of indecent assault contrary to repeated express refusal of consent, a feature that was not present in AP’s evidence on count 1. Adducing evidence of conduct that was more serious than count 1 in these respects, but which was uncharged so far as the trial of the appellant on that count was concerned, created a substantial danger of unfair prejudice.

86. To expand my view that count 1 was weak with respect to the element of knowledge of non-consent, I note the following. In circumstances where AP was not drugged or for any other reason unrousable and there was no evidence that the appellant believed her to be in such a condition, if the jury were satisfied that he merely knew she was asleep it was at least open to them to have had a reasonable doubt that he knew she did not consent to the alleged sexual touching (referring to knowledge in the expanded statutory sense in s 61HE of the Crimes Act, as in force until 1 June 2022, thereafter renumbered s 61HK). The touching described by AP was of a kind that would normally wake a sleeping person. Objectively speaking, it was calculated to do so. It was of a kind and in circumstances (including that AP was asleep when the activity commenced) that the jury might well think would commonly occur between sexual partners, whether married or not, living together and sharing a bed and accustomed to engaging in consensual intercourse. It was consistent with foreplay such as might be undertaken by the appellant, as an accepted sexual partner of AP, seeking to arouse her from sleep and to interest her in intercourse.

87. Consent in this context means free and voluntary agreement to sexual activity: see s 61HE(1) of the Crimes Act, as in force at the time of the two alleged offences (s 61HI(1) from 1 June 2022). As a matter of common sense there can only be consent to sexual activity if the “free and voluntary agreement” is operative at the time of the activity. Since 1 June 2022 s 61HI(1) has spelled that out in so many words, without adding anything to the common sense position. The Crimes Act did not in 2019, and does not now, exclude the giving of prospective consent to sexual touching as between sexual partners who are cohabiting in an ongoing intimate relationship.

88. Of course, a person who consents to sexual activity with a partner on one occasion could not, by reason only of that fact, be taken to consent to further sexual activity with the partner on another occasion. (Section 61HI(6) now states that proposition expressly). In a continuing consensual relationship, such as that which subsisted between the appellant and AP up until the event charged, it would be possible for the respective partners to consent prospectively to sexual touching while asleep and for that consent to be manifested and communicated implicitly by conduct. Although an implication of consent could not arise solely from the fact of sexual touching on previous occasions, there is no reason why it could not arise from prior sexual activity in combination with other circumstances. If a female partner in an ongoing relationship has been woken by sexual touching on occasions during cohabitation, her responses might be such as to convey to the male that such contact while she is asleep, with a view to rousing her and ascertaining whether she wishes to engage in intercourse, is acceptable.

89. An illustration is given by the evidence of EM that in her sexual relationship with the appellant over more than three months from August 2019 to mid-December 2019, it “used to be a very normal way for him to wake me up” that the appellant would touch her breasts and rub his penis against her bottom. EM did not say that during the months over which they commonly slept together and had intercourse she ever indicated to the appellant an objection to such pre-waking sexual contact.

90. Evidence about the history of the relationship between the appellant and AP was not adduced to provide the foundation for an argument that she had, by conduct, impliedly consented to future sexual touching while asleep. No argument was made to the effect that the course of cohabitation gave rise to implied consent of AP to touching that might arouse her from sleep, either to become interested in intercourse or to reject the advance. However, the considerations discussed above could have led the jury to perceive a reasonable possibility that the appellant did not know AP would object if he should touch her sexually to prompt an indication whether she would take part in intercourse. The jury could equally have had a reasonable doubt as to whether the appellant was reckless, or whether he lacked reasonable grounds for belief that there was prospective consent to such touching.

91. On count 1 the learned judge should not have admitted the evidence that was adduced for tendency purposes. The evidence of the two complainants was not cross-admissible and the counts should have been tried separately. My reasons for joining in the order made on 24 December 2024 to quash the appellant’s conviction on count 1 include that I would uphold ground 1 so far as it concerns that charge.

Grounds 2(a) and (b) – sexual intercourse with EM – second trial

92. In the second trial, wherein the appellant was arraigned only on count 2 concerning sexual intercourse with EM without her consent, the evidence that had been given by AP, EM and FK in the first trial was replayed to the jury from video recordings. For reasons already given, the portions of FK’s evidence identified at [65] and [68] above were not relevant to proof of the tendency that the Crown relied upon. Those portions were not admissible for any other purpose. They were irrelevant and significantly prejudicial to the appellant with respect to count 2. Grounds 2(a) and (b) should be upheld in relation to count 2.

Ground 1 – sexual intercourse with EM – second trial

93. In the second trial, on count 2, the formulation of the alleged tendency remained unchanged. The evidence adduced solely in support of it was EM’s description of the appellant touching her while she slept on an occasion prior to the commencement of their sexual relationship (summarised at [36] above), AP’s evidence of the indecent assault alleged in count 1 and FK’s evidence that on several occasions when the appellant shared her bed he sexually touched her while she was asleep.

94. What I have already said regarding absence of significant common features across the events that were the subject of tendency evidence applies equally to demonstrate the lack of significant probative value of that evidence for the purposes of count 2. If anything, lack of probative value is more obvious in relation to this count. A jury could not rationally find that the likelihood of the appellant having proceeded unilaterally to commence intercourse with EM when he knew she remained asleep was increased by his tendency (if they found it proved) to engage in mere sexual touching with other sleeping partners (and with EM, in the uncharged event that occurred before she and the appellant commenced sexual relations).

95. Again, if I have taken too stringent a view in concluding that the tendency evidence had no significant probative value, I would nevertheless conclude that it should have been rejected under s 101, upon weighing the danger of unfair prejudice against such minimal probative value as the tendency material might have contributed.

96. None of the tendency evidence in the Crown’s case against the appellant on count 2 was properly admitted. Ground 1 should also be upheld in relation to that count.

Material impact of the errors identified in grounds 1, 2(a) and 2(b)

97. The errors identified in the grounds that the appellant has made good each independently had an impact on the respective trials to the prejudice of the appellant. Each of the errors separately could realistically have affected the guilty verdicts. From what I have written to this point it will be apparent why I consider that to be so. So far as it may be necessary to identify material prejudicial impact in order to uphold the appeal on any of these grounds, I find that there was such impact.

293. Engaging in tendency reasoning as part of finding an offence proved, assuming the directions were followed, would have required the jury to give consideration to the particular count having already made a finding the event occurred for the purpose of finding the tendency proved. (Absent this earlier finding there would have been no finding of guilt.) When determining what weight to give to the tendency (a matter they were told was for them) it is unlikely that any antecedent finding could be put to one side. That is, while it was the tendency that was to be considered as a distinct piece of circumstantial evidence when considering whether a particular count was proved beyond reasonable doubt, it is difficult to escape the real possibility, and perhaps likelihood that an earlier finding that the conduct was established infected the reasoning process. The somewhat artificial distinction between the tendency and the conduct underpinning it will be more difficult to maintain where a finding has been made as to that conduct.

294. This risk referred to above was exacerbated by the significant role of the charged acts in proving the tendency. In the context of there being relatively few acts of alleged misconduct, the evidence of the particular count inevitably formed a substantial part of the evidence establishing the tendency.

295. One matter peculiar to the second trial, was that the allegation sought to be proved was the most serious of various allegations against the appellant. Evidence relied on in proof of that allegation included a tendency to act in a particular way, the foundation for which was the allegation itself, and other less serious conduct. The risk of circularity of reasoning is potentially greater in such a case. The conduct in issue was, arguably, an outlier in the spread of conduct relied on to prove the tendency. A finding that it occurred was likely to inform not only the tendency as expressed, but also the extent to which the appellant was prepared to act in accordance with the tendency. That is perhaps another way of saying that, as the most serious evidence of the manner in which the tendency was said to have manifested itself, the particular event was likely to have dominated the reasoning process and informed the nature of the tendency. While that quality was inherent in the evidence, the risk of it infecting the process in this way was significantly greater in circumstances where an antecedent finding that the event in fact occurred had been made. Obviously, on the facts of this case, reasoning that the appellant had a tendency to sexually touch unconscious women by engaging in penile-vaginal intercourse with them, based on the incident involving EM, could not support a finding beyond reasonable doubt that he did have penile-vaginal intercourse with EM, knowing she was unconscious.

296. The outcome of the first trial suggests that at least some of the jurors in that trial were not misled by the tendency evidence insofar as it was used to support the count relating to EM. That is not to say that the jury at the second trial was not so affected.

297. Having regard to the above, I am of the view that there was a real risk in this case that the jury, in following the directions given and making findings as to the occurrence of the events relied on for a tendency purpose was “deflected from its fundamental task”. That is because the directions as to the standard of proof were undermined.

298. The conclusion I have reached in this matter is different from that reached in JS. Ultimately, it is, as I have stressed, a question of the impression formed having regard to the entirety of the directions. There is limited utility in analysing the directions against the outcome in some other case. That is particularly so where the argument in JS was not formulated in the same way, the focus being on a contention that the jury should have been told they could only rely on the charged acts to support the asserted tendency if they were satisfied of the act beyond reasonable doubt. With those qualifications, I am of the view the directions here carried a greater risk than the directions given in JS. From the directions in JS set out by Basten AJA (at [42]), it does not appear that the need to make findings for the purpose of establishing the tendency was given the same emphasis as occurred here. There are three occasions in the directions where the jury was instructed to make a factual finding. On the third occasion they were told not to “consider each of these episodes of conduct in isolation but [to] look at them collectively to decide what conduct [they were] satisfied occurred for the purposes of tendency reasoning” but then immediately told “[y]ou consider all three episodes of conduct within this context and consider whether the tendency for which the Crown contends has been established”. This, contrary to the earlier direction, suggested a single step from the evidence to the tendency. It also underscored the point that the jury was not, in this exercise, deciding whether any particular event was proved beyond reasonable doubt, making clear this was a further discrete step. However, as I have said, each case is to be decided on its own merits.

299. On the basis of the above I formed the view that leave should be granted to the appellant pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules to rely on this ground. I was also of the view that leave for the purposes of s 5(1)(b) of the Criminal Appeal Act should be granted and the ground upheld.

Conclusion

303. For the reasons given above I joined in the orders made by the Court on 24 December 2024.

304. Having regard to the appellant’s success with respect to the conviction appeal, it is unnecessary to consider the application for leave to appeal against sentence.

305. It remains necessary to consider whether an order for a new trial, as provided for by s 8(1) of the Criminal Appeal Act should be made.

Should a new trial be ordered?

306. Section 6(2) of the Criminal Appeal Act provides that the court, if it allows an appeal against conviction, shall “[s]ubject to the special provisions of this act … quash the conviction and direct a judgment and verdict of acquittal to be entered”. Section 8(1) of the Criminal Appeal Act then provides:

“On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make.”

307. The appellant in his original submissions did not submit that, in the event the appeal was upheld, an acquittal should be entered. Despite this, the circumstances in which the appeal has been upheld were such as to indicate to the Court the issue should be considered. Submissions were received in which the appellant advocated for acquittals while the respondent resisted such orders submitting that the appropriate order was for a new trial. Insofar as the respondent points to the appellant’s initial failure to seek orders acquitting him, any such failure can have no bearing on the merits of the application.

308. A further issue has arisen with respect to the determination of this issue. The appellant seeks to rely on further evidence. He relies on the affidavit of his solicitor, Mr Tiedt of 28 October 2024 which was initially admitted provisionally, limited to the question of re-sentencing should the court come to it. That affidavit simply annexed a report of a psychologist, Steven Albert dated 25 October 2024. He also seeks to rely on a further report of Steven Albert dated 13 February 2025. The Crown objects to the receipt of this material on the question of whether a new trial should be ordered.

309. The Crown did not contend, correctly in my view, that the evidence is not relevant. The reports of the psychologist deal with the impact of the appellant’s imprisonment on him and the likely impact of an order for retrial. Rather, the objection was that the psychologist’s evidence is hearsay, the psychologist not having himself provided an affidavit. (Even if he had, the evidence would still be hearsay.) It was also submitted that the psychologist’s repetition of the appellant’s representations is second hand hearsay. The evidence is sought to be admitted in an appeal against the appellant’s convictions. This is a proceeding to which the Evidence Act applies: s 4. The evidence as the Crown submits, is hearsay and having been objected to is not admissible. There is no need to examine questions of first-hand, second-hand (and perhaps third-hand) hearsay. (As to the distinction between oral evidence and evidence given by affidavit see Van Zwam v R [2017] NSWCCA 127 at [108]-[110], noting that, unlike the situation that pertained there, these are not proceedings that relate to sentencing). The evidence is not admissible.

310. That the evidence in its present form is not admissible does not finally resolve the question of how the objection should be dealt with. That is because of the particular circumstances in which the objection has been taken.

311. Having heard full argument the Court made orders upholding the appeal, quashing the convictions and calling for submissions as to the appropriate consequent orders. In order to minimise further delay it was ordered that this question be determined on the papers. As a result, in the absence of the Court sitting with respect to this issue, the appellant has not had the opportunity to call the evidence in the face of the Crown’s objection. The appropriate course would be, ordinarily, to offer the appellant the opportunity to call evidence at a reconvened sitting of the Court. The appellant would then be faced with a choice of yet more delay (and expense) or foregoing potentially important evidence.

312. That imprisonment for the first time, delay and the prospect of (at least) a third trial and further imprisonment would have a significant psychological impact might be assumed (cf s 68A, Crimes (Appeal and Review) Act 2001 (NSW)). Reliable evidence as to the extent of that effect would have some, and potentially a significant impact on the question of the appropriate orders. It is regrettable that the Crown would take a technical objection to the evidence. This is particularly so having regard to the lack of objection to the first affidavit “on the usual basis” in relation to sentence, a decision presumably based on a view that there was nothing obviously suggesting unreliability in the annexed report.

313. In the circumstances I have taken the view that the fairest course is to consider whether absent the evidence orders for acquittal should be made. If not, the appellant should have the opportunity to call the evidence. What follows are the reasons for my conclusion that, on the material available, no new trial should be ordered.

314. The proper approach to s 8(1) of the Criminal Appeal Act was helpfully summarised in Gilham v R [2012] NSWCCA 131; (2012) 224 A Crim R 22 by McClellan CJ at CL, at [648]-[649]:

“648 Whether there should be an order for a new trial under s 8(1) is a discretionary consideration. However, the discretion is only to be exercised if the court determines that the evidence presented at trial was sufficiently cogent to justify a conviction, for if it was not, an acquittal must follow as a matter of course: Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627 at 630; Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317 at 322 (Gibbs CJ), 331 (Deane J). For the reasons discussed under the unreasonable verdict ground of appeal, the evidence before the jury was sufficiently cogent to justify the applicant’s conviction. It is therefore necessary, in view of the other successful grounds of appeal, to consider whether the applicant ought to be acquitted or retried.

649   The relevant principles were discussed in Reid v The Queen [1980] 1 AC 343 and Fowler: R v Anderson (1991) 53 A Crim R 421 at 453 (Gleeson CJ). The overriding consideration is whether the interests of justice require a new trial: Fowler at 630. Unless the interests of justice require the entry of a verdict of acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge: Spies v The Queen [2000] HCA 43; (2001) 201 CLR 603 at [104]. The court determines where the interests of justice lie by considering various factors, including:

•   the public interest in the due prosecution and conviction of offenders (R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 at [49]; Anderson at 453; Reid at 349);

•   the seriousness of the alleged crimes (Anderson at 453; Reid at 350; Haoui v R [2008] NSWCCA 209; (2008) 188 A Crim R 331 at [164] (Johnson J));

•   the strength of the Crown case (Anderson at 453);

•   the desirability, if possible, of having the guilt or innocence of the accused finally determined by a jury, which, according to the constitutional arrangements applicable in New South Wales, is the appropriate body to make such a decision (Taufahema at [51]; Anderson at 453; Reid at 350);

•   the length of time between the alleged offence and the new trial, and in particular whether the delay will occasion prejudice to the accused (Taufahema at [55]; Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494 at 520 (Dawson, Toohey and McHugh JJ); Anderson at 453);

•   whether the grant of a new trial would impermissibly give the prosecution an opportunity to supplement or “patch up” a defective case or to present a case significantly different to that presented to the jury in the previous trial (R v Wilkes [1948] HCA 22; (1948) 77 CLR 511 at 518; King v The Queen [1986] HCA 59; (1986) 161 CLR 423 at 433 (Dawson J); Parker at 520 (Dawson, Toohey and McHugh JJ); Reid at 350; Fowler at 630; Anderson at 453; Taufahema at [59]);

•   the interests of the individual accused, and in particular whether it would be unduly oppressive to put the accused to the expense and worry of a further trial (Spies at [103]; Reid at 350);

•   whether a significant part of the sentence imposed upon conviction has already been served (Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 at 590 (McHugh J));

•   the expense and length of a further trial (Reid at 350);

•   whether a successful appellant to the Court of Criminal Appeal has been released from custody (Taufahema at [55]; Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 302 (Brennan, Deane, Dawson and Gaudron JJ); R v Wilton (1981) 28 SASR 362; (1981) A Crim R 5 at 367-68 (King CJ)); and

•   whether an acquittal would usurp the functions of the properly constituted prosecutorial authorities, which are entrusted with responsibilities and discretions to act in the public interest in the initiation and conduct of criminal prosecutions (R v Thomas (No 3) [2006] VSCA 300; (2006) 14 VR 512 at [27]).”

315. The principle in Spies v The Queen (2001) 201 CLR 603; [2000] HCA 43 at [104], referred to above, has more recently been affirmed by the High Court in The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35 at [84].

316. For present purposes, I proceed on the basis that the evidence available is of sufficient cogency to justify the convictions. Had I come to a view, contrary to my conclusion in determining ground 1, that tendency reasoning was not available, a real question would have arisen as to this. In so proceeding, I find it unnecessary to comment on the strength of the Crown case. Obviously each jury was satisfied beyond reasonable doubt of the offence with respect to which they convicted the appellant. Equally clearly, it cannot be known what impact the errors in the trial had upon the jurors.

317. What can be said in the present matter is that any order for a new trial will result in the appellant facing a third trial. The allegations date from March-April 2019 in the case of AP, and December 2019 in the case of the EM. While the appellant submitted that by the time any retrial is heard in the order of six years will have passed from the time of those allegations, the more significant period is that which will have passed from the time the appellant became aware of the police investigation. It would appear the appellant was aware of this from about September 2020. He subsequently participated in the interview with police in October 2020 before being charged with the sexual offences on 29 October 2020. (He was charged later with the pervert the course of justice offence.) On that basis, I would accept that it is likely that close to five years will have passed by the time a third trial is heard. In the event of a conviction, it is likely that sentence proceedings, and potentially appeal proceedings, will extend the time beyond that.

318. By the time any further proceedings are resolved, the appellant will have spent the time referred to above either on bail, or in custody. He was on bail from 29 October 2020. He entered custody on 12 September 2023, on remand, pending sentence. On 4 April 2024, he was sentenced to an aggregate term of imprisonment of 6 years with a non-parole period of 3 years and 7 months, commencing on 12 September 2023. That sentence was imposed with respect to the offences against AP and EM, the subject of the appeal against sentence, together with the offence of perverting the course of justice to which the appellant pleaded guilty. He remained in custody until 24 December 2024 when he was released to bail as a result of the orders made by this Court. As a result, the appellant has spent 1 year, 3 months and 12 days in custody.

319. In having regard to the above matters, I do not ignore the fact that the appellant pleaded guilty to an offence of perverting the course of justice and, consequently, the proceedings generally and his time in custody particularly are at least partially referable to this offence. Putting to one side the somewhat unsatisfactory nature of his plea (a matter discussed below) it remains the case that, had the pervert the course of justice offence been dealt with on its own, a sentence of 2 years or less would have been well within the available range. Such a sentence would be amenable to an order that it be served by way of an intensive correction order. Further, the sexual offences, given the nature of the charges and potential outcomes, were likely to have been the primary source of stress in the trial process.

320. The delay referred to above is to be seen in the context of the appellant’s age. The appellant was 28 years old when he was charged. He is presently 32 and will be at least 33 by the time any further trial commences. Given his stage of life, the trial process is likely to have caused significant disruption to him. This disruption is to further be seen in the context of the evidence adduced on sentence with respect to the appellant’s psychological state. The sentencing judge recounted a troubled history. She noted that he had been assessed by different practitioners as suffering a range of conditions including depression in the moderate clinical range, bordering on severe; severe anxiety; severe stress; autism spectrum disorder; and complex postal traumatic stress disorder. Her Honour concluded that the appellant “has clearly mental health issues” (sic). The appellant gave evidence that his mental health deteriorated upon entering custody and the sentencing judge accepted that his mental health was such that imprisonment was more burdensome for him.

321. The question that arises in the context of that short history is whether this Court should return the appellant for trial. In answering this question the responsibility of the prosecution for the present situation cannot be left out of the equation. The State has had the opportunity to prosecute him. The overturning of the convictions is as a result of the prosecution adducing evidence over objection that clearly went beyond the tendency sought to be proved. To prove the case that the appellant engaged in sexual conduct with EM and AP when they were asleep the prosecution led a significant body of evidence to the effect that the appellant pressured women when they were awake, or at least attempted to do so, until they grudgingly gave into his persistence and engaged in intercourse with him. This conduct was not suggested to be contrary to law. It did, nonetheless, show the appellant in an extremely poor light. Yet it could not have been relevant to the tendency sought to be proved. The result was the reception of inadmissible evidence which presented the appellant as a sexual predator and which was very likely to have caused significant prejudice to him in the determination of the charges.

315. The public interest in the determination of criminal offences by a jury, or at least the role of the Director of Public Prosecutions in deciding whether that should occur, weighs heavily in favour of ordering a retrial. That is particularly so in the case of serious offences such as those alleged here. Against this, for the appellant the prospect of returning to custody in the context of the history I have recounted would be, to perhaps understate the matter, extremely burdensome. In my view, despite the powerful factors that might otherwise warrant an order for a further trial, it would be oppressive to submit the appellant to such a trial.

316. It is not open to the Court to simply quash the convictions and make no further order. That is, in the event that a new trial is not ordered, it is necessary to finalise the proceedings by entering acquittals: The Queen v A2 at [80]-[83] per Kiefel CJ and Keane J, at [148] per Nettle and Gordon JJ and at [179]-[192] per Edelman J. That, in my view, is the appropriate order in this case.

Resentencing: the pervert the course of justice offence

324. The appellant pleaded guilty to the offence of doing an act with the intention to pervert the course of justice contrary to s 319 of the Act. The appellant was sentenced for this offence as part of an aggregate sentence which included the sexual offences. As a result of the quashing of two of the convictions, and the consequent quashing of the aggregate sentence, this Court has the power to resentence with respect to this offence pursuant to s 7(1A) of the Criminal Appeal Act. I am of the view we should do.

325. The offence carries a maximum penalty of 14 years imprisonment. There is no standard non-parole period. As noted above, the aggregate sentence imposed was one of 6 years with a non-parole period of 3 years and 7 months. The indicative sentence for the pervert the course of justice offence was 2 years and 2 months. That indicative sentence took into account a 5% discount for the appellant’s late plea of guilty.

326. I note the appellant also sought leave to appeal against his sentence. Given the sentence has been quashed, it is unnecessary to determine that appeal. It is however necessary to resolve a complaint made by the appellant with respect to the facts on which he was sentenced, in particular with respect to his understanding of the nature of the act by which he was said to have intended to pervert the course of justice.

327. The sentencing judge summarised the facts with respect to this offence as follows:

“[The appellant] was aware that the victims had gone to the police with their allegations from around mid-September of 2020. He was interviewed by the police on 26 October 2020. Upon his arrest in late October the 29th of 2020, his iPad and iPhone was seized and placed in airplane mode where the Occupier’s Notice stating the police were seeking electronic devices able to access social media and/or instant message applications.

He was charged and given a future CAN. He then purchased a new phone and took steps to re-activate his old number on that new device. Just over three hours later he had informed a friend that he was going to the Genius Bar in 20 minutes because he did not know how to do wipe his iPad and iPhone which had already been seized and he also had his Apple ID disabled. Thirty minutes later he rings Apple and falsely informs a staff member that his items had been stolen and indicates he needs to erase everything on them. A short time later he is informed by a staff member that they have successfully deleted the two devices.

Police had already completed a Cellebrite extraction on the iPhone but the iPad was not examined until a few days later and the Cellebrite download for that was unsuccessful. The police later performed another Cellebrite extraction on 27 September 2022 and obtained the data from the iPad. The data on the iPhone and the iPad mirrored each other and no additional data was obtained from the later extraction. There was some limited planning but I accept was most probably done in a state of panic and fear after being arrested and charged for these two sexual assaults.

Contained within the data was messages with the victim EM concerning the incident itself, Instagram messages with a witness discussing the sexual assault of EM, messages with a tendency witness FK including having terrible tendencies and messages with another person regarding his work roster of May of 2019.”

328. An affidavit of the appellant’s mother was tendered on sentence. She is a solicitor. She deposed that she became aware of the investigation and assisted the appellant in obtaining representation. She arranged for a barrister to attend the police station with the appellant when he attended for his interview. She said that she asked the barrister whether it was permissible to “wipe” the contents of the appellant’s phone and iPad. She indicated her concern in this regard was that the devices were connected to the law firm for which she worked. She was told that there was no issue with deleting the contents of the devices. She said the conversation took place “on speaker” outside the Apple Store with the appellant present. She was not cross-examined on her affidavit.

329. The appellant gave evidence. He said that he understood the advice given by the barrister in the above conversation was that the data on the devices could be deleted.

330. The appellant complained on the sentence appeal that the sentencing judge erred in rejecting his evidence that he was advised it was permissible to delete the contents of the devices. The parties’ submissions dealt with the process of fact finding on sentence. While there may be a real question as to the rejection of unchallenged evidence, the issue to my mind is resolved at a more fundamental level. In my view, acceptance that the appellant was acting under legal advice that it was permissible to delete the contents of the devices is inconsistent with the appellant’s guilt of the offence. If the appellant believed he was entitled to act as he did, there was no intention to pervert the course of justice; he was simply acting within his legal rights. While I have come to the conclusion for different reasons I would not depart from the sentencing judge’s conclusion that the evidence the appellant believed his actions were lawful should not be taken into account.

331. The sentencing judge accepted the appellant’s evidence that he was “not thinking clearly and was stressed”. She found the act was “most probably performed in a state of panic”.

332. The act, in my view, was a not particularly well thought out attempt to deny evidence to the police. The evidence on the devices was not particularly probative. Arguably the most damaging evidence adduced from the data was inadmissible. Further, any communications deleted from the appellant’s devices would not have prevented recovery of the equivalent evidence from the device of the other participant to the conversation, assuming it had been retained. Those matters, however, do not change the significant fact that the appellant admitted that by his actions he intended to pervert the course of justice.

333. While the offence is necessarily serious, having regard primarily to the relative lack of sophistication of the offending, it is well removed from the most serious of such offending. Nonetheless, general deterrence remains an important sentencing consideration: Harrigan v R [2005] NSWCCA 449 at [47].

334. I have regard to the appellant’s prior good character. He had a difficult upbringing. I note the evidence of the appellant’s mental conditions. The sentencing judge did not find that these conditions were causally connected to the offending and that finding has not been challenged. I do accept, like the sentencing judge, that general deterrence should be given less weight. Further, imprisonment has been more onerous on him as a result of his mental state.

335. Having regard to the various purposes of sentencing, no sentence other than imprisonment is appropriate. Having regard to the length of the sentence I propose, the discount of 5% results in a fraction of a month. This should be subject to rounding. I would impose a sentence of 14 months with a non-parole period of 10 months commencing on 12 September 2023. Given the sentence has already been served it is unnecessary to consider whether that sentence should be served by way of an intensive correction order, or whether there should be a further adjustment to the non-parole period for special circumstances beyond rounding the figure to whole months.

Orders

336. I propose the following additional orders:

1. With respect to the offence in count 1 on the indictment dated 7 September 2022, enter a verdict of acquittal;

2. With respect to the offence in the single count on the indictment dated 21 October 2022, enter a verdict of acquittal;

3. With respect to the offence that the appellant on 29 October 2020 did an act with the intention of perverting the course of justice, the appellant is sentenced to imprisonment for 14 months, with a non-parole period of 10 months commencing on 12 September 2023. The non-parole period expired on 11 July 2024. The total sentence expired on 11 November 2024.

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Amendments

05 May 2025 - [194] - the word "tender" changed to "admission"

Sub-heading "Ground 2(b) - word "because" inserted

Decision last updated: 05 May 2025