The Director of Public Prosecutions v Benjamin Roder (a pseudonym)

[2024] HCATrans 14

[2024] HCATrans 014

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M85 of 2023

B e t w e e n -

THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

and

BENJAMIN RODER (A PSEUDONYM)

Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 MARCH 2024, AT 10.04 AM

Copyright in the High Court of Australia

MS R.J. ORR, KC, Solicitor‑General for the State of Victoria:   If the Court pleases, I appear with MS S.C. CLANCY and MR M‑Q.T. NGUYEN for the applicant.  (instructed by Office of Public Prosecutions (Vic))

MR T. KASSIMATIS, KC:   May it please the Court, I appear with my learned friend MR C.K. WAREHAM for the respondent.  (instructed by Dribbin & Brown Criminal Lawyers)

GAGELER CJ:   Thank you, Mr Kassimatis.  Ms Solicitor.

MS ORR:   If the Court pleases, this application concerns the directions that can be given to a jury in a Victorian criminal trial about what must be proved beyond reasonable doubt.  Can I start with some introductory remarks before explaining how I propose to structure these submissions.  The respondent is charged with 27 counts of sexual offending against two complainants, each of whom was his stepchild.  There are broadly three categories of charges:  incest charges, indecent act charges, and indecent assault charges.

The prosecution gave notice that it intended to adduce evidence to establish that the respondent had a tendency to have a sexual interest in each of the complainants, and a tendency to act in particular ways, including by engaging in sexual activity with each of them.  The evidence to be adduced includes evidence of the conduct of the accused on the 27 occasions that are the subject of a charge as well as six instances of uncharged sexual misconduct.  The cross‑admissibility of all tendency evidence has been conceded. 

The question that arises in this proceeding is whether, where the accused seeks to rely on evidence of conduct of the accused to establish that the accused has a particular tendency, and the evidence of that conduct is also relied on to directly prove the conduct element of a charge, section 61 of the Jury Directions Act (Vic) permits a trial judge to direct a jury that they can only use that evidence to assess whether the accused had the asserted tendency if they are first satisfied to the criminal standard that the accused engaged in that conduct.  That is the subject of the evidence.  Section 61 provides that:

the only matters that the trial judge may direct the jury must be proved beyond reasonable doubt are –

(a)the elements of the offence charged or an alternative offence; and

(b)     the absence of any relevant defence.

The trial judge ruled that he would direct the jury not to take account of any of the charged conduct as tendency evidence unless they were first satisfied of it beyond reasonable doubt.  That meant that the jury would be required to disregard any charged conduct relied on as tendency evidence unless that conduct was itself proved beyond reasonable doubt. 

The Court of Appeal said that this direction was not prohibited by section 61 of Jury Directions Act, instead it regarded the direction as in conformity with section 61.  Our central submission is that there is no available construction of section 61 that renders the proposed direction to be in conformity with that provision.

The Court of Appeal’s assessment that the direction was in conformity with section 61 was, we say with respect, not driven by any close analysis of the text, context or purpose of section 61.  It was, instead, driven by prudential concerns, that if the direction were not given there was a risk that the jury would engage in reasoning processes that were either illogical or impermissible, that the jury would engage in a circular reasoning process, or it would reason in a way that somehow eroded its adherence to the criminal standard of proof.

It is not clear from the judgment below precisely how these prudential concerns fed into the court’s construction and conclusion about section 61, but for the Court of Appeal’s conclusion to be correct, the elements of the offence to which section 61 refers would have to be construed as extending to evidence of conduct that is capable of establishing an element of the offence, but which the jury is being asked to consider not for that purpose but for the anterior purpose of assessing whether to accept the prosecution’s assertion that the accused had a particular tendency.

In these submissions we will seek to demonstrate why the term “elements” in section 61 cannot be construed in that way and why the prudential concerns of the Court of Appeal were either mistaken or are addressed by other directions that are provided for, or accommodated by, the scheme of the Jury Directions Act.  I propose to structure our submissions by first taking the Court to the tendency notice and the trial judge’s ruling that he would give the proposed direction.  Second, locating section 61 in its legislative context and explaining its history and purpose.  And third, explaining the four ways in which we say the Court of Appeal erred in reaching the conclusion that the direction was in conformity with section 61.

The four errors which are outlined in our oral outline of argument are as follows.  The first is that the Court of Appeal failed to grapple with the two distinct stages of the process of tendency reasoning and what those distinct stages mean for the proper construction and application of the term “element” as it is used in section 61.

The second error is that the Court of Appeal’s approach reflects what we say is an unprincipled distinction in the approach to be taken by a jury to assessing pieces of evidence that are relied on to prove a tendency, depending on whether those pieces of evidence concern charged or uncharged conduct.

The third error is that the Court of Appeal’s construction of section 61 is at odds with the purpose of the provision and with the purpose of the legislative scheme more generally.  We say that it is inherently implausible that section 61 should be understood to permit or require a direction that is as complicated for a jury to understand and apply as the proposed direction would be.

The fourth error, or perhaps a set of errors, is that we say the Court of Appeal was wrong to rely on its construction of section 61 on concerns about the jury being invited to reason in an illogical or impermissible way.  To the extent those concerns are real, there is no need to adopt a strained reading of section 61 to accommodate them, because they are accommodated by other types of directions provided for or permitted by the Act.

So, having given that overview, can I start by taking your Honours to the tendency notice.  It is the document in our book of further materials, and it starts at page 4 of that book of further materials.  The tendency notice in this case is typical of many in sexual offences cases.  Now, your Honours will see that in paragraphs 1 and 2 of the notice, the Crown notified the respondent that the prosecution:

would adduce evidence that will establish –

that he had – first, in 2.1, a tendency to have a particular state of mind, namely, an “improper sexual interest in” the two complainants:

and a willingness to act on that sexual interest by engaging in sexual activity with them.

Second, in 2.2, a tendency to act in particular ways towards the complainants, including by engaging in sexual activity with each of them in particular specified circumstances.

Paragraph 5 of the notice, on the following page, states, in effect, that the two tendencies would be relied upon in proof of all the charges in the indictment.  There is a reference in this paragraph to 33 charges in all.  That is incorrect.  Table A, which sets out the tendency evidence below, refers to only 27 charges in total.  Six charges that related to a third complainant were severed from the indictment, and only charges 7 to 33 on the original indictment, are referred to in table A.  Those charges broadly correspond to charges 1 to 27 in the indictment.

Table A identifies the evidence of the conduct that is the subject of the 27 charges, as well, as I said, as six instances of what is described as “Other sexual misconduct”, being conduct which is not the subject of a charge.  That conduct is labelled “Other sexual misconduct ‘A’” through to “F” in table A.  Your Honours will see the first example of that in the first cell in the table.

So, to use the language that has been customary in these cases, the tendency evidence was evidence of 27 charged acts and their surrounding circumstances and six uncharged acts.  I say as well as their surrounding circumstances because your Honours will see that in respect of the 27 occasions where the conduct is the subject of a charge, the prosecution relies on evidence of the charged conduct as well as the circumstances within which that conduct occurred, which is sometimes expressly identified within the cell as further uncharged conduct.

The reference in the second column of the notice to the act alleged that demonstrates a tendency needs to be understood as including all of the evidence in the first column, including the charged act.  So, for example, the conduct identified in the notice by reference to the first charge in Table A, which is charge 7, on page 7 of the book of further materials, includes the accused masturbating himself in front of the complainant while the complainant was in the shower after having wet the bed.  Your Honours will see after that reference, “uncharged” in brackets.

And the description of the conduct then goes on, the accused then called the complainant into his bedroom and:

instructed him to lie on the bed.

Where he “rubbed oil” into the complainant’s buttocks.  Charge 7 is charge 1 in the indictment; charge 1 in the indictment is a charge of committing an indecent act by rubbing oil into the complainant’s buttocks.  So, the evidence relied on to establish the tendency is not only that charged act but also the surrounding circumstances specified in that cell.

Now, having taken the Court to the tendency notice, could I ask the Court to turn the up trial judge’s ruling, which is at page 15 of the core appeal book.  If the Court turns to the second page of the ruling, page 16, the Court will see from line 25 onwards that the trial judge said:

The issue before the Court is the competing submissions as to the standard of proof, which should attach to the use of the charged acts when used as probability reasoning to establish a sexual interest in his two step-children and a willingness to act upon same –

Then, at page 18, from line 30 onwards, we see the judge says:

I find that to apply in this case two different standards to each charged act would be an act of sophistry and would undermine the criminal standard of proof.

His Honour goes on, a few lines down: 

To instruct the jury to apply a lesser standard of satisfaction as to the charged acts for the purpose of tendency/probability reasoning and then instruct them to be satisfied beyond reasonable doubt as to the individual charges would not only be confusing for the jury but may well lead to the risk of injustice to the accused.  I therefore intend to charge as I indicated, as detailed in the references I have already made to the Bench book.

And: 

I Find that charging in such way, will at least intellectually discriminate between sexual misconduct and charged acts which would justify discrimination as to standard of proof, that is, that the sexual misconduct evidence must be found to have occurred to be used as tendency evidence and the charged acts must be proved beyond reasonable doubt.

Then his Honour explained more specifically how he proposed to address the jury, from line 30 on that same page, page 19:

Hence, I have determined the jury will be instructed sequentially as follows:  firstly, I would recommend to the jury, not that I can determine how and what they do when they are in the jury room.  that they decide firstly as to whether they are satisfied that the six acts of sexual misconduct occurred.  I would not suggest to them that there is any standard involved in that consideration.  In particular, I would not charge them that they must be satisfied as to the civil standard.

Secondly, when they come to Charge 1, I would tell them that they can take account of the principles of tendency and probability reasoning as put in the prosecution case, as I would explain to them what that means, based upon the number of the six acts of sexual misconduct that they are satisfied occurred.

When we then come to Charge 2, I will direct them that they can take into account the principles of tendency and probability reasoning as put in the prosecution case upon the number of the six acts of sexual misconduct which they find occurred and Charge 1 if proved beyond reasonable doubt, and so on, sequentially.

Now, although his Honour referred in this passage to charge 1 being proved beyond reasonable doubt, we think that what he meant was that the acts or conduct that was the subject of charge 1 had to be proved beyond reasonable doubt, not necessarily all of the elements of the charge.  We say that is clear from earlier references in the ruling where his Honour referred to “charged acts” being proved beyond reasonable doubt.  An example of that is at page 17 at lines 5 to 10.  That is how the Court of Appeal treated the direction, referring to it in paragraph 34 of its judgment as a direction that:

every charged act relied upon . . . as tendency evidence must be proved beyond reasonable doubt –

But, in any event, the reasons why we say it is wrong to direct that a charge or a charged act needs to be proved beyond reasonable doubt before it can be used as tendency evidence are the same.  Could I turn to the next of our submissions and ask that your Honours turn up the Jury Directions Act, which is at tab 3, in volume 1 of the joint book of authorities.  In order to develop our proposition about the proper construction of the term “elements” in section 61, it is necessary to start with the scheme created by the Act as a whole.

The Act was the product of a lengthy process of legislative design, commencing with a review conducted by the Victorian Law Reform Commission in 2008 and 2009.  That lengthy process resulted in a comprehensive statutory framework that governs the giving of directions in criminal trials in Victoria.  Many provisions of the scheme created by the Act, including sections 61 and 62, displace or modify the common law in relation to jury directions.  We have referred, in our written submissions, to the purposes of the Act set out in section 1, which identify the drivers for this reform.  If your Honours turn up that provision, you will see that Parliament wished:

(a)to reduce the complexity of jury directions in criminal trials; and

(b)to simplify and clarify the issues that juries must determine . . .

(c)to simplify and clarify the duties of the trial judge in giving jury directions . . .

. . .

(e)to assist the trial judge to give jury directions in a manner that is a clear, brief, simple and comprehensible as possible; and

(f)to provide for simplified jury directions in relation to specific issues –

I have referred there to subparagraphs (a), (b), (c), (e) and (f).  That the Act was designed to displace the common law in relation to jury directions is made clear by section 4.  Section 4 states that:

This Act applies despite any rule of law or practice to the contrary.

That statement is expressly reinforced in multiple provisions that appear throughout the Act which expressly abolish rules of common law that are contrary to specific provisions of the Act.  So, for example, they include section 30, which abolishes common law rules in relation to directions regarding the use of tendency evidence.  Tendency evidence is part of what is defined as “other misconduct evidence”, to which section 27 and 30 apply, and I will return to section 27 later in my submissions.

The Act also contains guiding principles, which we refer to in our written submissions; they are set out in section 5.  But can I emphasise that 5(1) identifies, in paragraph (b), that:

in recent decades, the law of jury directions in criminal trials has become increasingly complex –

and in paragraph (c) that “this development” has caused various difficulties for both trial judges and for jurors, including that it has become:

increasingly difficult for jurors to understand and apply jury directions –

in subparagraph (iii).  Subsection (4) expresses the intention of Parliament about the way a trial judge should give directions, concluding with the statement in subparagraph (c) that the direction should:

be as clear, brief, simple and comprehensible as possible.

Echoing the language of the “Purposes” provision.  Subsection (5) expresses Parliament’s intention that the:

Act is to be applied and interpreted having regard to the matters set out in –

section 5.  So, at the outset of the Act, there are a number of emphatic statements about Parliament’s intention to alter the common law to reduce the complexity of jury directions for both trial judges and for juries.  Can I turn now to what the Act describes as general directions.  General directions are defined in section 3 on page 3 of the Act.  They concern:

matters relating to the conduct of trials generally, including –

under paragraph (g) of the definition:

what must be proved beyond reasonable doubt –

General directions are dealt with in Part 7 of the Act, and they can be contrasted with what is described as evidential directions, dealt with by Part 4 of the Act.  Evidential directions are directions in relation to particular categories of evidence.  Under Part 3 of the Act, evidential directions will only be made if they are requested by the prosecutor or defence counsel, although the trial judge can and must give evidential directions if there are substantial and compelling reasons to do so.

In contrast, general directions do not need to be requested by the prosecutor or defence counsel.  That is made clear by section 10(1)(a), which carves general directions out of Part 3, which is the part about the making of requests.  As I said, general directions are dealt with in Part 7 of the Act.  The critical provisions in Part 7, for the purpose of this proceeding, are sections 61 and 62.  If I could ask the Court to turn those provisions up.  As I have said, by its terms, section 61 identifies the only matters that a jury can be directed:

must be proved beyond reasonable doubt –

The provision draws a clear distinction between, on the one hand, the elements of an offence and the absence of a relevant defence.  These are the matters to which the trial judge can attach the criminal standard of proof.  On the other hand, all other matters in a criminal trial to which the judge cannot attach the criminal standard of proof.

That is, as your Honours will see, subject to an enactment otherwise providing, and there is an example in the notes of an enactment otherwise providing.  The second note refers to section 46(4)(b), which concerns directions on consent.  Section 61 is followed by section 62, which provides that:

Any rule of common law under which a trial judge in a criminal trial is required to direct the jury that a matter, other than a matter referred to in section 61, must be proved beyond reasonable doubt is abolished.

The notes to section 62 refer to two specific common law rules that are abolished.  The first is the rule attributed to the decision of this Court in Shepherd, being the rule that juries must be directed that intermediate facts that are an indispensable step in a jury’s conclusion of guilt must be proved beyond reasonable doubt.

EDELMAN J:   Do you accept that, absent section 62, tendency evidence could, in some cases, fall within the Shepherd principle as an indispensable link?

MS ORR:   Yes, I accept that it could.  It would be a very rare case, your Honour, but in theory it could.

EDELMAN J:   But you say section 62 has abolished even that prospect.

MS ORR:   Yes, it does, and that is because it abolishes any common law rule to the contrary.  It abolishes Shepherd, it abolishes the ruling Sadler, and as your Honour will see from the final dot point in the notes, any other rule that requires a jury to be directed that it must be satisfied beyond reasonable doubt of any matter other than a matter referred to in section 61.

We do not think Parliament could have been clearer in terms of its abolition of all common law rules in relation to matters on which the jury can be directed, that the criminal standard of proof applies.  The way it was put by the Attorney‑General in the second reading speech – which I will not take the Court to, but it is at tab 39 in the joint book of authorities – was that section 61 and 62 were designed to ensure that:

the jury does not have to consider whether a particular fact is proved beyond reasonable doubt, before they may rely on that fact.

GORDON J:   Can I ask about that in the context of the examples that are given at the foot of section 61, which seems to suggest that you can have evidence that needs to be proved beyond reasonable doubt.

MS ORR:   The examples, your Honour, about relating the standard of proof to evidence?

GORDON J:   Yes.

MS ORR:   We accept that that can be done, but what cannot be given is a direction that tells the jury that the criminal standard applies to something other than the elements of the offence, or the absence of a relevant defence.  That does not mean – and I will come to explain by reference to a model direction – that the standard of proof cannot be related to the evidence and the elements, but the standard of proof cannot be applied to any matter other than the elements.

GORDON J:   Thank you.

MS ORR:   Sections 61 and ‑ ‑ ‑

BEECH‑JONES J:   Ms Orr, can I just ask you, that last dot point to which Justice Gordon referred you to:  what about a circumstance where the only evidence is the direct evidence of one witness?  Would that be an example where the jury might, or could, be directed beyond reasonable doubt that they would have to be satisfied of that witness’ evidence?  You say no?

MS ORR:   No, absolutely not, your Honour, and I will come to explain in a bit of detail why that is so, why there remains a distinction between the concept of elements and the concept of evidence, even where the evidence alone is capable of satisfying the element.

GAGELER CJ:   What does the word “matter” mean in section 61?

MS ORR:   We say it is a deliberately broad term designed to capture everything other than the elements of the offence or the absence of a relevant defence.  It could not really be broader.  It is the universe of matters – the universe of things that are covered by section 61, and Parliament has chosen to allow trial judges only to attach the criminal standard of proof to the specified matters in this provision.

GAGELER CJ:   I suppose I am asking is it referring relevantly to a fact or to a contest of some kind?

MS ORR:   Well, the elements will determine what is in contest.  So, in this case, the defence filed a response to the summary of prosecution opening which indicated what facts are in issue in this case, and that was done by reference to the elements of the offence, and the principal fact in issue in this case is whether the accused engaged in any of the sexual conduct in each of the 27 charges.

GLEESON J:   As a matter of construction of section 61, the elements are matters.

MS ORR:   Yes.  Yes, they are.  Together with the absence of any relevant defence, they are the subset of the universe of matters to which trial judges are permitted to attach the criminal standard.

EDELMAN J:   But how can matters be anything other than facts?  There might be a very small group of facts close to ultimate facts, but they have to be only the facts, do they not?

MS ORR:   Yes, and of course the elements are sometimes referred to as the ultimate facts in issue in the case.  But the elements, of course – and I will come to explain this – are the legal constituents of the offence, and they are capable of existing beyond a particular criminal proceeding.  They are derived from the statute or the common law that creates the offence.  So, the elements have that separate existence.  Of course, the way a jury directs – sorry, the way a trial judge directs the jury as to the elements in a particular case may converge in some respects with the facts – the facts in issue in that case – but that does not deprive the elements of their separate status as the legal constituents of the offence.

I will come to explain that submission in a bit more detail, but if the Court would not mind, I might just say a little bit about the work that led to sections 61 and 62 being enacted in this form.  As I have said they, like the rest of the provisions in the Act, were informed by a number of pieces of work including a report that was prepared in 2012 by a Jury Directions Advisory Group, which was led by then Justice Mark Weinberg, and that report is at tab 36. 

I will not take the Court to it, but I will note that in Chapter 3 of that report Justice Weinberg identified seven options for reforming directions about what must be proved to the criminal standard.  Ultimately, Justice Weinberg recommended retention of the rule in Shepherd, but that clarification be provided about the way in which that direction should be given.

Parliament did not adopt that recommendation.  It instead chose another of the seven options identified by Justice Weinberg, which was favoured by the Department of Justice in a subsequent report that it published in 2015, which is at tab 40 in the joint book of authorities.  That option was to return the law in Victoria to the state it was in before Shepherd.  Justice Weinberg had described that option in his report as having “the benefit of simplicity”.  That was at page 1447 of the joint book of authorities.  He said that it would require:

a legislative amendment that clearly states that a judge only needs to direct the jury that the prosecution must prove the elements of a crime, and disprove any relevant defences, beyond reasonable doubt.

And, of course, that is precisely what section 61 says.  So, Parliament’s decision to adopt this option for reforming the directions that can be given about what must be proved beyond reasonable doubt was a specific manifestation of its broader focus on removing complexities and making directions as simple as possible for judges to deliver and for juries to apply. 

We say the clear aim was for trial judges not to get bogged down in complex and disputed questions about what was capable of constituting an intermediate fact that was an indispensable step to an inference of guilt to which the criminal standard should apply, or whether the trial judge thought that there was some other prudential reason for directing the jury that some other matter should be proved beyond reasonable doubt in the circumstances of the case.

It gave effect to that aim by prohibiting trial judges from giving directions that attach the criminal standard to any matters other than the elements of the offence or the absence of a relevant defence.  So, in enacting section 61, we say Parliament was not, as the Court of Appeal and our opponents would have it, enacting a provision that permits, or even requires, trial judges to fashion directions attaching the criminal standard to various matters where they are concerned that without that type of direction the jury might engage in impermissible reasoning.

As I will come to explain, the scheme created by the Act envisages that any such prudential concerns will be addressed not by a direction attaching the criminal standard of proof to something but by other types of directions which can be carefully tailored to address the trial judge’s specific concern.  So, having provided that background about the history and purpose of section 61 and the legislative scheme more generally, can I turn to the first of the four errors that we say infected the Court of Appeal’s approach, and that is the court’s failure to grapple with the distinct stages of the jury’s reasoning process in cases involving tendency evidence and what those distinct stages mean for the proper construction and application of the term “element” as it is used in section 61.

Could I ask the Court to go to the critical passage of the Court of Appeal’s reasons, which is paragraph 33.  The Court of Appeal’s reasons are at page 26 of the core appeal book, and paragraph 33 is at page 39.  From the second sentence in that paragraph, the Court of Appeal said:

Section 61 of the JDA differs from the provision considered in –

And I will not use the title of the case that the Court of Appeal used there, because the decision referred to there is the subject of a restricted publication order, and we will refer to it as Decision restricted.  I understand it was not included in the joint book of authorities, but your Honours have been provided with a hard copy of the decision this morning, which marks, on the top of the decision, the restriction that applies to the decision.  So, I will refer to it as Decision restricted.  If any of your Honours do not have that decision, I will ensure that you do.

BEECH-JONES J:   Ms Orr, just to be clear, I do not think there is an order.

MS ORR:   Thank you, your Honour.

BEECH-JONES J:   It is just the practice of not putting it on the internet pending a trial, so I do not know there is any, to my knowledge, statutory or judicial prohibition on reference to it.  It is just a practice for a matter of caution.  That is my understanding of the situation. 

MS ORR:   We have decided to err on the side of caution ‑ ‑ ‑ 

BEECH-JONES J:   Yes, I understand.

MS ORR:   ‑ ‑ ‑ and take a conservative approach, and unless the Court minds, I will just refer to it as Decision restricted.  It is the only decision that I will refer to in that way, but your Honour will see the title of the decision in this paragraph of the Court of Appeal’s reasons.  Coming back to what the Court of Appeal said:

Section 61 of the JDA differs from the provision considered in –

that case:

and the cases that preceded it.  By its clear terms, s 61 requires a trial judge to direct the jury that ‘the elements of the offence charged’ must be proved beyond reasonable doubt.  In the present case, every sexual act alleged in every charge on the indictment is an element of that charge.  A direction that any such element must be proved beyond reasonable doubt – no matter the use sought to be made of the evidence – 

And we emphasise those words:

would not offend s 61 of the JDA.  Indeed, such a direction would plainly be in conformity with the section.

And the core difficulty with that reasoning, we say, is that when a jury is considering evidence of the conduct of the accused for tendency purposes, it is not considering an element of the offence, even where that conduct is the subject of a charge.

And to make good that proposition, can I explain what the jury is in fact considering at that first stage, by starting with a recent explanation of the process of tendency reasoning that was given by his Honour Justice Beech-Jones when his Honour was Chief Judge at Common Law of the New South Wales Supreme Court in Decision restricted [2023] NSWCCA 119, which hopefully your Honours all now have in hard copy. It is one of a series of recent cases in which the New South Wales Court of Criminal Appeal has considered the issue of what direction should be given when the prosecution relies on charged conduct as part of the evidence to prove that an accused had a particular tendency.

And if your Honours turn to paragraph 7, your Honours will see that Justice Beech-Jones, with whom Justice Button agreed, begins by setting out a passage from the judgment of Justice Basten in one of the earlier cases in this series, JS v R, a case that I will return to.  And at paragraph 8, Justice Beech-Jones explained that:

In this passage, Basten AJA refers to the jury being satisfied of the existence of the “tendency” and, if so, the “tendency” being relied on in proof of the charge.  This reflects reasoning by which the existence of the tendency is treated as an intermediate fact in its own right in the reasoning process and not just some description of the evidence used to support it.

Pausing there, to put it in the language of section 97 of the Evidence Act, which deals with the admissibility of tendency evidence, when the prosecution relies on the asserted tendency of an accused, it is using evidence of the conduct of the accused for the purpose of showing that the accused has the tendency.  At paragraph 9, Justice Beech‑Jones explained that this meant that there are two distinct stages of the reasoning process when tendency evidence is involved.  His Honour was, in this paragraph, responding to an argument about “circular reasoning”, which I will come to deal with.

His Honour said that where a jury is considering whether evidence adduced in support of a count on the indictment establishes a tendency, in the final sentence:

This may involve the jury reconsidering the evidence on each count but if it does it will be undertaking each consideration at different stages of its deliberations with a different onus of proof and for a different purpose.

Now, can I explain further the two stages of the deliberations.  At the initial stage of the deliberations, the jury looks at the tendency evidence, whether it is evidence of charged conduct or uncharged conduct or both, for the purpose of deciding whether they are satisfied that the accused has the tendency asserted by the prosecution.  There is no particular standard of proof to be applied at this stage.  The question the jurors are asking themselves is whether, based on all the evidence adduced in support of the asserted tendency, they are satisfied that the accused has that tendency.  As Chief Justice Gleeson said in HML, which is in tab 11 of the book of authorities:

Trial judges commonly, and appropriately, direct juries in terms of their possible satisfaction of particular matters relied upon by the prosecution, without referring to a standard of proof in relation to each such matter.  To do otherwise would risk error.

That was paragraph 29 of the Chief Justice’s judgment in HML.  So, at this part of the reasoning process, the jury is not required to agree on any findings about the particular items of tendency evidence, and that is of course true of the jury’s reasoning process more generally in that while jurors need to agree on the verdict, each juror may reason in a different way.  But that is not to say that the individual jurors will not form their own views about the pieces of tendency evidence in order to determine whether the asserted tendency has been established.

Each juror will need to evaluate the evidence relied on in support of the tendency.  Some jurors might form the view that some of the conduct that is relied on occurred.  Some jurors might form the view that all of the conduct relied on occurred.  And even where the jurors reach the same view about the extent to which the conduct occurred, they might reason to those views in different ways.  The jury then proceeds to the next stage of their deliberations, at which they are required to consider whether the charge has been proved – a task that they will be told requires them to apply the criminal standard of proof.

So, if the jurors are satisfied that the accused has the tendency relied on by the prosecution, they can use that tendency as this stage as a piece of circumstantial evidence from which they can infer that the accused acted in accordance with that tendency on another occasion.  In other words, the tendency in its own right may be considered alongside the other evidence in determining whether the elements of the offence have been proved, and that is necessarily a distinct and subsequent exercise to the jury’s assessment of whether they are satisfied that the accused had the asserted tendency.

We say that the two stages of the reasoning process remain distinct even if the evidence of conduct that has been considered at both stages is the same.  So, the fact that the same evidence is being considered does not, we say, transform the jury’s task at the first stage into an assessment of the elements of the offence.  As I said earlier, the elements of the offence are the legal constituents to be discerned from the statute or from the common law and they exist independently of any particular criminal proceeding.

As I said, they are often expressed in the context of a particular criminal trial as the ultimate issues or the ultimate facts but, of course, an element need not be a purely factual concept.  It can also involve the application of legal principles.  So, when the jury comes to the stage of assessing the elements of an offence, their role is to apply the law, on which they are directed, to the facts they have found in order to decide whether each of the elements has been proved beyond reasonable doubt.

Can I give an example to demonstrate that?  Can I give an example, which is by reference to the primary charge on this indictment, which is the charge of incest.  Fourteen of the twenty‑seven charges are charges of incest contrary to section 44(2) of the Crimes Act.  The first incest charge on the indictment – and, perhaps, it would help for your Honours to have the indictment in front of you at this point, which is at page 6 of the core appeal book – the first incest charge on the indictment is charge 2, which alleges that the respondent:

took part in an act of sexual penetration with –

EW:

a person under the age of 18 whom he knew to be the child of –

ST:

his de facto spouse, in that he introduced his penis into –

EW’s:

anus.

To prove this charge, the prosecution must prove five elements beyond reasonable doubt.  The first is that the accused took part in an act of sexual penetration with the complainant, and that act of sexual penetration is particularised in this charge, as I have said, as the accused introducing his penis into EW’s anus.  The second element is that the accused took part in that act intentionally.  The third is that the complainant is the child of the accused’s de facto spouse.  The fourth is that the accused knew that the complainant was the child of his de facto spouse and the fifth is that the complainant was under the age of 18 at the time of the sexual penetration.

Taking part in an act of sexual penetration is the first element of the offence of incest.  The jury will be instructed about the legal definition of “sexual penetration”.  They will be told that at this time, “sexual penetration” was defined in section 35 of the Crimes Act to mean the introduction by a person of his penis into the vagina, anus, or mouth of another person; or the introduction of an object, or a part of the body other than the penis into the vagina or anus of another person other than in the course of a procedure carried out in good faith for medical or hygienic purposes.

When it comes to assessing whether the first element of the offence of incest has been proved beyond reasonable doubt for charge 2, the jury is considering both the factual question of whether the respondent took part in the particularised act of sexual penetration and the legal question of what constitutes sexual penetration.

GAGELER CJ:   Ms Orr, is that right?  The first element as you have defined it is conduct.

MS ORR:   Yes, it is a conduct element ‑ ‑ ‑

GAGELER CJ:   Is it not that the question for the jury whether in fact the alleged conduct occurred?

MS ORR:   Yes, but they will be told, we say, what constitutes sexual penetration at law, and that is a matter that they will need to bring to bear on their assessment of that element.

EDELMAN J:   Is it any more complicated than saying the legal rules will tell you which particular facts or ultimate facts are the necessary constituents of the elements?  In other words, that an element could be – often is – constituted by acts, mental state, results, circumstances, and the law just tells you which of those four groups of facts are necessary to constitute the offence.

MS ORR:   Yes, we accept that, but we also say there are circumstances in which the jury needs to be given instructions about the law that applies to those elements.  I do not wish to disagree with your Honour that there is an ultimate fact that constitutes the element that is here a conduct element, and other elements that I referred to are state of mind elements, others are circumstances, each of the elements can be understood in that way.  And section 44(2) of the Crimes Act is what allows us to identify those elements.

We say that, returning to the language that is used by the Court of Appeal in paragraph 33, at the stage where the jury is considering whether the evidence establishes the asserted tendency of the accused, the use sought to be made of the evidence – that is the language used by the Court of Appeal – is not to establish an element except in the very general sense that all prosecution evidence in a criminal trial is ultimately directed to an element.  The use that is sought to be made of the evidence is to establish the tendency, and so ‑ ‑ ‑

EDELMAN J:   Is your distinction between stage one, the tendency and stage two, the use of the tendency to an element, consistent with what is said by the majority in Hughes, that when considering tendency itself, there are two steps – one is whether the tendency is established, and the second one is the extent to which the tendency makes the commission of the offence more likely?

MS ORR:   Yes, we say it is, your Honour.  Those are the steps that are relevant to assessing the admissibility of the tendency evidence, which of course was conceded in this case.  My submissions are directed to a different point, which is the process of the jury grappling with the admitted evidence in its deliberations.  It must be that there are two distinct stages.  The jury is told that there are two distinct stages, and they are told how to use the evidence at each of those stages.

We say that in paragraph 33 of the Court of Appeal’s judgment – and to use the statutory language of section 61, the matter that the jury is considering at that point is evidence of conduct said to establish a tendency, not the elements, or legal criteria of the offence – the ultimate facts.  As we have said in writing, there is an elision in this paragraph between “elements” and “evidence”.  The respondent has said in their submission that the distinction between “elements” and “evidence” is a distinction without difference.

He says that when a jury forms a view about conduct that is also relied on as direct evidence in support of a charge, the jury is making a finding of fact that corresponds to an element.  But speaking about a fact which corresponds to an element, we say, masks the two different questions that are being addressed by the jury at the two different stages, being firstly, whether the jury is satisfied that the accused has the tendency, and secondly, whether it is satisfied that the elements of the offence have been proved beyond reasonable doubt.

GORDON J:   In JS at paragraph 43, Justice Basten identified the process his Honour thought would be the appropriate course in identifying that it was not necessary to – and would be contrary to proper directions – to direct the jury that they had to be satisfied beyond reasonable doubt in relation to charged acts.  Are you saying any more than what he says at paragraph 43?

MS ORR:   No, we wholeheartedly embrace what his Honour says at paragraph 43.  We had hoped that it might assist the Court to delve a bit deeper into what sits behind this statement, but we say that that statement is entirely correct and directly inconsistent with the approach adopted by the Court of Appeal in this case, because the direction endorsed by the Court of Appeal in this case inserts the criminal standard at a level below the jury’s consideration of the elements.  In fact, it is two levels below the jury’s consideration of the elements, because it applies the criminal standard not even to proof of the tendency but to proof of the evidence that is said to establish the tendency.  It is not a direction that we say can be understood to be in conformity with section 61.

Could I turn to what we described as the second error in the Court of Appeal’s reasoning process, which is a related error.  It is that the Court of Appeal’s approach reflects what we say is an unprincipled distinction between the approaches to be taken by a jury to assessing pieces of evidence that are relied on to prove a tendency depending on whether those pieces of evidence relate to charged or uncharged conduct.

Can I start by making some observations about the distinction between charged and uncharged conduct, because it is at the heart of the direction endorsed by the Court of Appeal.  In this case, and in many cases, the tendency evidence consists of evidence of the conduct of the accused.  Some of that conduct is the subject of a charge, some of it is not.  But when the jury evaluates the conduct to decide whether it is satisfied that the accused had the asserted tendency, the characterisation of that conduct as conduct that is charged on the indictment, or is not charged on the indictment, is of no probative significance.  That is because either way the conduct is evidence that is being relied on in support of a fact, namely that the accused had the asserted tendency.

Whether that conduct is also the subject of a charge cannot logically affect the persuasiveness or the probative force of the evidence in establishing that fact, and it was in recognition of this that this Court has cautioned against the use of the language of “uncharged acts” in tendency evidence directions.  In HML, both Justices Hayne and Kiefel observed at paragraphs 129 and 492 that the language of uncharged acts might invite irrelevant speculation about why some acts are charged and others are not.

The only significance of labelling conduct that is said to give rise to a tendency as “charged conduct” as opposed to “uncharged conduct”, is that those labels acknowledge that the same evidence may become relevant in more than one way at the trial.  That is, the evidence may be adduced for two different purposes, namely, as direct evidence in support of the charge, and in proof of the asserted tendency.  It was the lack of any principled basis for this distinction between “charged” and “uncharged” acts as tendency evidence that led the New South Wales Court of Criminal Appeal to decide that the observations of this Court in Bauer about the directions to be given in New South Wales in relation to uncharged acts also apply to charged acts.

I will not take the Court to Bauer, which is at tab 17 in the joint book of authorities, but the relevant passage is at paragraph 86 of the Court’s judgment.  The Court observed there that:

Contrary to the practice which has operated for some time in New South Wales, trial judges in that State should not ordinarily direct a jury that, before they may act on evidence of uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt.

In JS, which was the first in the series of New South Wales Court of Criminal Appeal cases post‑Bauer, the New South Wales Court of Criminal Appeal rejected the argument that that observation should be understood as confined to directions in respect of evidence of uncharged acts relied on as tendency evidence, and not extending to directions in respect of evidence of charged acts.  It was at paragraph 43, the passage that your Honour took me to in Justice Basten’s judgment, that Justice Basten emphasised:

The proper approach –

to tendency reasoning is that the jury should:

have regard to all the evidence relied on in proof of the tendency as evidence of the tendency alleged.

We say there is nothing novel or remarkable about that proposition.  It reflects the way juries are required to approach evidence more generally, and it reflects the long‑recognised fact that the probative force of a mass of evidence may be cumulative.

The direction endorsed by the Court of Appeal directly cuts across that approach.  It requires the jury, in deciding whether they are satisfied of a tendency, to start by disregarding any tendency evidence other than tendency evidence comprised of uncharged conduct.  The jurors are not to consider any tendency evidence that is the subject of a charge unless and until they are satisfied of that conduct beyond reasonable doubt.  So, it is a direction that prevents the jury from doing what Justice Basten said should be done, which is considering the totality of the tendency evidence to decide whether they are satisfied of the tendency.

GORDON J:   Is another way of putting your point to say that if you took charge 7, which is the indecent act which has, on the tendency notice, three limbs to it or three parts to it, that it would require the jury to somehow disentangle or disaggregate the three bits to work out which bits were charged and which bits were not, and which bits went to which aspect?

MS ORR:   Yes, because the conduct that is relied on subsumes, but is not entirely, the charged act.  As the New South Wales Court of Criminal Appeal has recognised in the subsequent decision of Gardiner, this approach of requiring a jury to disregard a portion of the tendency evidence deprives tendency evidence of its forensic force.

If I could take your Honours briefly to the decision in Gardiner, which is at tab 26 in the joint book of authorities.  Gardiner was also a case in which charged conduct was sought to be relied on as tendency evidence in a case involving two complainants:  TR and PS.  The leading judgment was given by Justice Adamson, with whom Justices Button and McNaughton agreed.  If your Honours could turn to paragraph 190 in Justice Adamson’s judgment, her Honour there recorded the applicant’s submission, which is equivalent to the direction endorsed by the Court of Appeal in this case.  Her Honour said:

Mr Game submitted that it was erroneous for the trial judge to use the evidence of, say, TR, in respect of a particular count as tendency evidence in support of count 6 in respect of PS, without first finding that the count against TR sought to be used in that way had been proved beyond reasonable doubt.  He contended that the only way the evidence of the counts could be cross‑admissible was if the trial judge –

And I will just pause because this was a trial by judge alone:

was if the trial judge started with one count and found that count established beyond reasonable doubt without reference to the other counts.  If such a finding was made, Mr Game submitted that the trial judge could proceed “crab‑like” to the other counts. 

Now, the court rejected that approach.  At paragraph 192, Justice Adamson said that:

One of the difficulties with Mr Game’s submission is that, if accepted, it would deprive tendency evidence of the forensic force which long‑standing authority has established that it has.

Her Honour went on to give an example to illustrate her point.  Her Honour said:

Suppose ten children said that each had been sexually assaulted in similar circumstances by a particular accused and the accused was charged with all ten counts on a single indictment.  On Mr Game’s argument, the evidence of one child could not be used as tendency evidence in respect of the charges concerning any of the other children if none of the children’s evidence, by itself, could prove the charge beyond reasonable doubt.  If the accused’s indictment contained only five counts and the remainder were relied on as tendency evidence, the remainder would not need to be proved beyond reasonable doubt to be used as tendency evidence (in accordance with The Queen v Bauer (a pseudonym) . . . but none of the evidence of any of the five counts could be used in support of the other counts unless it established the accused’s guilt beyond reasonable doubt.

Her Honour clearly regarded that result as hard to justify, given that a prosecutorial decision about whether to lay a charge is not, of itself, relevant to any issue relating to that conduct.  The fact that no charges have been laid in respect of certain conduct does not make it more or less likely that the conduct occurred.  That point was made in a number of judgments in HML, including by Justice Hayne, who said at paragraph 190 that:

Evidence that no charges had been laid in Victoria was not relevant to any issue in the case.  If given, that evidence made it neither more nor less probably that the Victorian events described by the complainant had occurred . . . significance could be attached to the absence of charges only if it was known why charges had not been laid.

And at paragraph 195 of Gardiner, Justice Adamson went on to endorse the statements made by Justice Basten in JS about the “proper approach” to tendency evidence being:

to have regard to all the evidence . . . relied on in proof of the tendency –

Like Justice Basten, her Honour was troubled by the prospect that a direction of the very kind that has been endorsed in this case would require juries to give effect to a distinction in the approach to be taken to different pieces of tendency evidence, depending on whether the conduct was charged or uncharged.  So, we say the Court of Appeal erred in endorsing a direction that required the jury to do just that.  I was going to turn to the third of our four errors.  Is the Court content for me to start that error?

GAGELER CJ:   How long will it take?

MS ORR:   I think I will come close but not be finished the point before quarter past, your Honour.

GAGELER CJ:   You may as well proceed.

MS ORR:   Thank you, and I hope I stick to what I said, your Honour.  I will do my best.  The third error is that we say the court failed to grapple with the important purpose of the legislative scheme, including the purpose of sections 61 and 62, which was to make jury directions easier for juries to understand and apply.  The direction endorsed by the Court of Appeal is inconsistent with that purpose.  It is a direction that would require the jury to engage in what the trial judge described as a sequential form of reasoning.  It requires the jury to separately consider the asserted tendency when it approaches each count on the indictment on the basis of a potentially different and incrementally increasing body of evidence each time.

EDELMAN J:   That is what you understand Mr Game to have meant in his submission about “crab‑like”?

MS ORR:   Yes, it is, your Honour.  The Court of Appeal said, at paragraph 34 of its judgment, that it was not necessary to direct the jury sequentially, but as far as we can tell, all their Honours meant by that is that the jury does not need to be directed to start the sequence at charge 1.  They could start from any charge they like.  The point remains that whichever charge they consider first they have to apply the trial judge’s approach – or Mr Game’s approach – of proceeding “crab‑like” between the charges.  We say that is an approach that is likely to create considerable confusion and complexity for the jury.  It may require the jury to repeatedly reconsider whether they are satisfied the accused has the asserted tendency each time on the basis of a different body of evidence.

So, if we consider a situation where the jury starts with charge 1 in the indictment, for the purpose of its consideration of that charge, on the judge’s approach, it has to decide whether it is satisfied that the respondent had the tendency based only on the six uncharged acts.  It decides, we are not satisfied that the accused has the tendency on the basis of the six uncharged acts, and it also ultimately decides, we are not satisfied beyond reasonable doubt that the respondent is guilty of charge 1.  So, the jury proceeds to charge 2.

The jurors have already decided that they are not satisfied that the respondent has the tendency based on the six instances of uncharged misconduct, but they decide that, even without the tendency, they are satisfied that the accused is guilty of charge 2.  Logically, at that point the jury must return to charge 1.  They must reconsider whether the respondent has the tendency for a second time on the basis of the enlarged body of evidence; now they have the evidence of the six uncharged acts plus the evidence of the conduct that is the subject of charge 2.

That re‑evaluative process would need to occur every time a new charge is found to be proved beyond reasonable doubt, and it is not difficult at all, we say, to see how that might become intolerably complex as the jury gets further along in the process of the consideration of the charges.  And at least in theory, the jury would have to return to charge 1 and reconsider whether the respondent has the asserted tendency up to 26 times.  Each time, it would need to start again by re‑evaluating the tendencies using an incrementally enlarged body of evidence, and the same process might need to occur on a number of the other charges.  The New South Wales Court of Criminal Appeal has expressly recognised that a direction of that type would create exactly these sorts of difficulties.

As the last part of this submission, I was going to take your Honours to the judgment of Justice Hamill in Decision restricted, but perhaps that is something that I could conveniently do after the morning break.

GAGELER CJ:   Very well.  Thank you.  We will take the morning break at this stage.

AT 11.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

MS ORR:   If the Court pleases, I had said that as the final part of my submission about the third error being the failure by the Court of Appeal to grapple with the legislative purpose, I was going to take the Court to decisions of the New South Wales Court of Criminal Appeal that have expressly recognised the sorts of complexities that I have just taken the Court to that would arise from a direction in these terms.  The judgment that I wanted to take the Court to was Decision restricted, the judgment of Justice Hamill within that case.

The Court of Appeal relied extensively on parts of Justice Hamill’s judgment, where his Honour talked about the practical risks from using charged conduct as tendency evidence, and I will come to those parts.  But the Court of Appeal’s reasoning does not grapple with the conclusions that Justice Hamill reached about the appropriate ways to address these risks in directing the jury.  If your Honours could turn to paragraph 104 of Justice Hamill’s reasons, your Honours will see that his Honour began there by acknowledging a concern – the concern that I will return to – that the jury may mistakenly fail to apply the correct standard of proof to the elements of the offence.

His Honour then went on, in paragraphs 105 and 106, to immediately identify countervailing considerations which pointed against the making of a direction that tendency evidence of charged acts should be proved beyond reasonable doubt.  Those countervailing considerations are those I have already referred to in the context of the second error.  At 105, his Honour said:

Against that, the process of tendency reasoning involves the tribunal of fact deciding whether the asserted tendency exists by reference to the whole of the evidence, considered together, including the charged and uncharged acts.  This is consistent with the way circumstantial evidence works more generally.

And at 106:

Framing directions requiring the jury to disregard parts of the evidence (that is, the acts giving rise to the charge under consideration), in deciding whether the tendency exists, may result in confusion and lead the jury to approach the tendency case in an erroneous manner.

His Honour then set out, in the body of that paragraph, the particular direction proposed by the appellant in that case and went on to discuss at paragraphs 107 and 108 the directions in the Bench book.  Then, at 109, his Honour concluded:

The direction suggested by the appellant has the capacity to cure the vice of which he complains.  However, it may also create confusion and requires the jury to make a finding (or findings) as to whether the alleged tendency exists on different bodies of evidence, depending on which count it is considering.

As I have said, the direction endorsed by the Court of Appeal creates precisely those problems.  It is inherently likely to result in confusion, and, if anything, that may increase the risk of error on the part of the jury, and it is therefore, we say, implausible to suggest that such a direction is in conformity with section 61, given its purpose.  Section 61 is part of an express legislative endeavour to reduce the difficulties that juries were having in understanding and applying jury directions, not to compound them.

Before leaving Justice Hamill’s judgment, could I note two final paragraphs.  At paragraph 115, Justice Hamill expressly affirmed his agreement with the reasoning of Justice Basten in JS, specifically, he agreed with the observation that:

it is preferable not to direct a jury to make findings as to the conduct relied on in proof of a charge.  Rather the jury should be directed with respect to finding the alleged tendency.

His Honour concluded at 117:

Of course, the jury must also be directed – as occurred in the present case – that, in the end, the elements of each offence on the indictment must be established beyond reasonable doubt.

The key conclusions in Justice Hamill’s judgment are, firstly, that it is likely to be confusing to direct the jury to make multiple findings about the same tendency based on different bodies of evidence; secondly, that instead the jury should be directed to consider all the tendency evidence to determine whether the tendency is made out; and thirdly, that the jury must also be directed that in the end the elements of each offence on the indictment must be established beyond reasonable doubt.

That is consistent with Justice Basten’s reasoning in JS, and that is not surprising, given that Justice Hamill agreed in the judgment in JS.  It is the approach that we urge in this case, and it is an approach that the Court of Appeal departed from, despite purporting to rely heavily on particular parts of Justice Hamill’s reasoning.

Could I turn to the fourth error, which involves the court’s reliance on concerns about the jury being invited, in the absence of the proposed direction, to reason in an illogical or impermissible way.  As we have said, it appears to be these concerns that have driven the Court of Appeal’s approach.  There are two themes or ideas in the concerns expressed by the Court of Appeal, each of which has been picked up and developed by our friends in their submissions in this Court.  The first is that without the proposed direction, the jury would be invited to – using the language of the Court of Appeal:

indulge in an impermissible circular reasoning process –

That is paragraph 34 of the judgment.  The second is that there is said to be a practical risk that the criminal standard that the jury must apply to the elements of the offence will be undermined or distorted, or that the jury’s adherence to the criminal standard will somehow be eroded.  This risk is said to arise because when the jury is deliberating about the tendency, they may form views about the charged conduct and this may infect how they then apply the criminal standard of proof when they later come to consider the question of guilt.

Can I demonstrate why neither of those concerns required the strained reading of section 61 that was adopted by the Court of Appeal, taking each of them in turn.  The first concern was the notion that without the direction, the jury would be invited to indulge in an impermissible circular reasoning process.  The notion of circular reasoning is something that was referred to by the Court of Appeal multiple times in its judgment – although without much elaboration.  The respondent has gone further into the concept in his written submissions in this Court, saying that it is circular to have the jury form views about charged conduct for tendency purposes before it considers the elements of the charge in respect of that conduct.

But, of course, the essence and the vice of circular reasoning is the making of an assumption in your reasoning process.  It arises when you assume the truth of the conclusion you are trying to prove.  So, the short answer to the concern is that this is not what a jury is invited to do when charged conduct is used as tendency evidence.  The jury is never invited to assume anything.  Instead, they are asked to consider the evidence – to evaluate the evidence twice, but for different purposes.

EDELMAN J:   But your point, essentially, is just that the tendency is no different from any other intermediate act.

MS ORR:   Yes, it is, your Honour.  The fact that the jurors can form a view at the first stage that the accused has engaged in some of the conduct does not involve making an assumption.  The view that they reach at that stage just is based on their evaluation of the evidence.  At the subsequent step – when they turn from considering the tendency to the elements of the offence – they will be considering the evidence again for a different purpose of deciding whether the accused has committed the offence.  There is nothing circular about looking at the evidence again for a different purpose and with a different standard of proof.

The Court of Appeal’s references to the concept of circular reasoning largely drew on language used in the judgments of the New South Wales Court of Criminal Appeal in Decision restricted.  Can I ask the Court to go back to that decision so that I can explain why it does not, in fact, support the idea that a direction of the type endorsed by the Court of Appeal is necessary to avoid circular reasoning.  If I could ask the Court to go to the judgment of Justice Beech‑Jones, his Honour recorded the contention about circular reasoning at paragraph 3.  His Honour said:

First, the applicant’s principal contention was that the direction given to the jury in respect of tendency reasoning was erroneous in that it permitted or invited the jury to engage in circular reasoning by directing the jury to consider whether the asserted tendency was established based on evidence adduced in support of the counts on the indictment and, if the tendency was established, using that tendency to determine whether the same counts were established.  It was contended that the jury should have been instructed that, in determining whether the prosecution had established the accused’s guilt on any particular count beyond reasonable doubt, it should exclude from consideration so much of the tendency evidence relied on which was also direct evidence adduced in support of that particular count.

On its face, that contention is more limited than the one that the Court of Appeal accepted in this case.  The contention was that for any given count on the indictment, you could not use the evidence in support of that count for the purpose of finding a tendency, but it seems you could use other charged acts.

But as his Honour immediately went on to explain, the contention advanced in Decision restricted was actually wider than that.  At paragraph 4, three lines down, his Honour said – I just want to make sure I have the right reference there.  I am sorry, I am looking for “If this logic applied”.  If you would not mind just giving me a moment ‑ ‑ ‑ 

GORDON J:   I think it is in the middle of paragraph 4, about halfway through the paragraph: 

If this logic is applied to the whole indictment –

MS ORR:   Thank you.  Thank you, your Honour:

If this logic is applied to the whole indictment, as it must be on the applicant’s case, then the only direction that could truly embody the applicant’s contention is a direction that excluded evidence of charged acts as evidence establishing a tendency unless the evidence was proven beyond reasonable doubt.

And that is essentially the direction endorsed by the Court of Appeal in this case.  And at paragraph 6, his Honour then dealt with the contention about “circular reasoning” and explained why it is wrong:

the applicant’s argument that using evidence that directly supports a charged count as tendency evidence necessarily invites circular reasoning falls away when regard is had to the nature of tendency evidence and that a tendency need not be established beyond reasonable doubt –

And if I can take the Court back to paragraph 9, his Honour said:

So far as the onus of proof is concerned, it is not circular reasoning for the jury to first consider whether, based on all the evidence adduced in support of the tendency, including the evidence adduced in support of the counts on the indictment, the asserted tendency is established and then consider whether each of the counts on the indictment is proven beyond reasonable doubt including by reference to the asserted tendency if the jury considers it to be established.  This may involve the jury reconsidering the evidence on each count but if it does it will be undertaking each consideration at different stages of its deliberations with a different onus of proof and for a different purpose.

Can I also take your Honours back to the judgment of Justice Hamill, on which the Court of Appeal relied.  Their Honours presented Justice Hamill’s reasoning as a counterpart to Justice Beech‑Jones’ rejection of the circular reasoning argument.  But it is clear, when one looks at Justice Hamill’s judgment, that his Honour’s references to circular reasoning were in fact about the practical risk of the jury applying a less rigorous standard of proof – which is the second concern identified by the Court of Appeal.  We say that it is clear from paragraph 90 of his Honour Justice Hamill’s judgment.  Justice Hamill was not in fact suggesting that there is some logical fallacy inherent in the use of charged conduct as tendency evidence, because there is not.

Can I turn to the second concern identified by the Court of Appeal, which is the idea that the proposed direction is necessary to avoid the risk of unacceptably undermining the criminal standard of proof – or, as the respondent puts it in his submissions, the risk that the criminal standard will be eroded or that the process by which the jury arrives at its verdict will be compromised.  The thrust of these ideas is that without the proposed direction, there is an unacceptable risk that jury will not apply the criminal standard of proof when it comes to considering whether the respondent is guilty because, having formed views about the charged conduct for the purpose of the tendency, they will then jump too readily to a conclusion that the elements of the charge have been established.

The proposed direction is said to be necessary to respond to that risk. Can I pause to observe here that when we are dealing with the charge of circular reasoning, necessity seems to mean that, if the proposed direction were not given, the jury would necessarily or invariably reason in a fallacious way.  That is the sense in which necessity is invoked in relation to circular reasoning.  But when we come to the risk that the standard of proof will be unacceptably undermined, necessity appears to mean something slightly different.  We are talking not about preventing an inevitable logical error by the jury but rather averting a risk.  So, “necessary” is being used in relation to this second concern in the sense of “prudent”.  That is why we say our learned friends explicitly describe the direction in their submissions as “prudential” in nature.

But there is a fundamental difficulty with the claim that the direction is necessary to avoid this risk.  Neither the Court of Appeal nor the respondent has engaged with the range of other directions that juries receive in cases where tendency evidence is adduced.  Instead, there is an abstract focus on the existence of a risk without consideration of the broader context of the directions as a whole.

Of course, if a jury were left wholly to its own devices in a criminal trial, then there would be a risk of the jury making mistakes and failing to decide the case according to law.  That is why jury directions are given.  But it is not the right starting point.  A jury is never left to its own devices, particularly not when the prosecution relies on charged conduct as tendency evidence.

Can I demonstrate some aspects of the other directions a jury receives in that situation by taking your Honours to a few of the model directions extracted from the Criminal Charge Book produced by the Judicial College of Victoria. Some of these concern general directions, others concern evidential directions. They are at tab 35 in volume 7 of the joint book of authorities. We have provided three model directions as an illustration and a reference point, but of course, one of the responsibilities of a trial judge is to ensure that the directions given in a particular case are adapted and drafted to reflect the particular issues in that case, and to ensure that any identified sources of complexity are dealt with as briefly, simply and comprehensively as possible.

Can I ask the Court to turn to one of the model general directions, which is at page 1286.  It is titled “3.7 – Review of the Onus and Standard of Proof”.  This direction contains an explanation of the standard of “beyond reasonable doubt” and repeated references to the importance of applying that standard before finding the accused guilty of any charges.  The kinds of formulations and explanations about the need for the jury to apply the criminal standard before a finding of guilt are not just stated once.  They can be, and generally will be, reiterated repeatedly throughout the judge’s directions.  Your Honours will see from the top of this page that this particular model direction:

is based on the assumption that the judge has already instructed the jury about the onus and standard of proof at the beginning of the trial –

Can I ask the Court to turn to the model direction at page 1284, entitled “3.6.1 – Charge:  Circumstantial Evidence and Inferences”.  This is another model general direction.  It explains the process of circumstantial reasoning and how conclusions may be reached.  About halfway down the page, your Honours will see that there are warnings to:

only draw reasonable conclusions –

and against making guesses:

you must take care when drawing conclusions from indirect evidence.  You should consider all of the evidence in the case, and only draw reasonable conclusions based on the evidence that you accept.  Do not guess.

The shaded section exhorts the jury to:

look at all of the evidence together.

and to:

take care not to jump to conclusions.

Over the page, there is an express explanation of how circumstantial reasoning relates to the standard of proof beyond reasonable doubt:

You may only convict the accused if you are satisfied that his/her guilt is the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect.  If there is another reasonable view of the facts which is consistent with the accused’s innocence, then the prosecution will not have proved his/her guilt beyond reasonable doubt, and you must acquit him/her.

That is not, we say, merely a repetition of the requirement to apply the criminal standard of proof, it is a direct explanation of how the jury is to relate the evidence to the criminal standard of proof.  These are just examples of the general directions that the Act contemplates will be given to the jury.  They will, of course, be tailored and repeated as often is necessary to bring home to the jury their importance in the context of the particular issues in the trial.

There is one further model direction that we have provided the Court, which is at page 1289, that I want to take the Court to.  I think there is a fourth at 1288, which I do not propose to say anything about.  The model direction at 1289 is entitled “4.17.2 – Charge:  Tendency Evidence (Sexual Interest Evidence).  This is a model evidential direction.  Before I take your Honours to parts of this direction, can I say a little about the relevant evidential direction provision in Part 4 of the Act.  Could I ask your Honours to turn up, at the same time as we have this direction open, section 27 of the Jury Directions Act.

Section 27 deals with “Direction on other misconduct evidence adduced by the prosecution”.  Your Honours will see that “other misconduct evidence” is defined in the section before, section 26, to include tendency evidence.  Section 27(1) provides that:

Defence counsel may request under section 12 that the trial judge direct the jury on other misconduct evidence adduced by the prosecution.

Pausing there, where a request for a direction is made under section 12, section 14(1) requires the trial judge to give such a direction unless there are good reasons for not doing so.  If such a direction is not requested by defence counsel, section 16(1) still requires the judge to give the direction in any event if he or she consider there are “substantial and compelling” reasons for doing so, although the judge has to invite submissions from the prosecution and defence counsel before taking that course.  Returning to section 27, subsection (2) states that:

In giving a direction –

on other misconduct evidence adduced by the prosecution:

the trial judge must –

(a)identify how the other misconduct evidence is relevant (whether directly or indirectly) to the existence of a fact in issue in the trial and direct the jury not to use the evidence for any other purpose; and

(b)if the evidence forms only part of the prosecution case against the accused, inform the jury of that fact; and

(c)direct the jury that it must not decide the case based on prejudice arising from what the jury has heard about the accused.

Subsection (3) then provides that the trial judge need not refer to any other matter, including the particular matters referred to in subparagraphs (a) and (b).  So, returning to the model section 27 direction at page 1289 at the joint book of authorities, your Honours will see, at the top of the page, under the heading “When to Use This Charge”, that it relates to evidence that an:

accused had an improper sexual interest in a single complainant has been admitted as tendency evidence.

We have not included the version of this direction that applies where evidence is admitted to prove that:

The accused had a tendency to act in particular manner . . . against multiple – 

complainants.  That charge is referred to in the first paragraph under the next heading, “Alternative Charges”, but in key respects it is identical, as I will come to explain.  Your Honours will also see under the heading “When to Use this Charge”, that:

A short direction based on this charge should be given at the time the evidence is led.

So, an abbreviated version is given when the jury hear the tendency evidence, and the longer version is given in the judge’s closing address, thus minimising the risk that the jury will commence reasoning in a particular way when they hear the evidence that then needs to be undone as a result of the judge’s summing up. 

The remainder of the document reflects the various aspects of the section 27 tendency direction.  At the bottom of the first page, in a footnote, there is a reference to the document last being updated on 16 November 2023.  That is after the decision of the Court of Appeal in this case.  The Court of Appeal’s decision has led to the inclusion of the text in the shaded sections on page 1290 and 1291.  The text on 1290 applies where the tendency evidence consists only of charged acts.  It requires the trial judge to tell the jury that they:

cannot use evidence of another charged act as part of showing the alleged sexual interest unless the prosecution has proved that other charged beyond reasonable doubt.

This means that you must consider each charged act completely separately, until you are satisfied that charged act has been proved beyond reasonable doubt.  If you do find a charged act, considered alone, proved beyond reasonable doubt, then you can take the evidence of that charged act into account when considering the other charges, but only in the way I’ve just described of showing a sexual interest and willingness to act on it or to set the scene for the alleged offences. 

The additional text in the shaded section on page 1291 applies where the tendency evidence consists of both charged and uncharged acts.  The required direction becomes more complex in that scenario, as your Honours will see from the text in the box.

Can I direct your Honours’ attention to the text that follows the shaded text on page 1291, the second‑last paragraph on the page.  The model direction requires a specific direction that emphasises the importance of applying the criminal standard to the elements of the offence:

You must keep this evidence in perspective.  It is only one part of the prosecution’s case.  It is not enough to convict the accused that you find [he/she] [identify the tendency evidence . . . or had acted on a sexual interest in NOC in the past.  You can only find NOA guilty of a charge if you are satisfied of [his/her] guilt of that charge beyond reasonable doubt, based on the whole of the evidence.

The same reiterating of the need to apply the criminal standard to the elements of the offence is contained in the version of this model direction that applies where tendency evidence is relied on to prove that an accused person has a tendency to act in a particular way towards multiple complainants, such as the present case.

So, the question of whether there is a risk that the jury will engage in a reasoning process that undermines the criminal standard has to be assessed by reference to the entirety of the trial judge’s directions, including the types of directions that are contained in these three sets of model directions that I have taken your Honours to.  As I have said, the trial judge has a capacity to tailor the directions in a way that will address the particular issues and evidence that arise in a particular trial.  So, if the judge is concerned that the tendency evidence that is adduced creates a risk that the jury will jump ahead to a finding of guilt without applying the criminal standard to the elements, the judge can address that risk by giving repeated and prominent directions about the need to apply the criminal standard before reaching that finding of guilt.

Of course, this Court and other courts have emphasised the strength of the fundamental assumption that juries will follow the trial judge’s instructions.  Just by way of illustration, can I take your Honours to the decision in Bauer at tab 17 of the joint book of authorities.  Bauer involved reliance on both charged and uncharged conduct as tendency evidence.  Can I ask the Court to turn to page 93 of the report at paragraph 72.  Near the end of that paragraph, the Court summarised the respondent’s submission that:

the evidence was confusing and had the potential to divert the jury from their task, especially given that the trial judge did not direct the jury that, before treating charged or uncharged acts as proof of the alleged tendency, the jury needed to be satisfied of those charged or uncharged acts beyond reasonable doubt.

The Court rejected those submissions for a number of reasons, but the relevant part for our purposes is the observation at paragraph 74.  Halfway down in that paragraph, the Court said:

The trial judge several times specifically directed them that they could not convict the respondent of any charged act unless satisfied beyond reasonable doubt of the commission of that act, and further specifically directed them that they could not substitute evidence of other charged acts or other alleged uncharged acts, or a conclusion that the respondent had a sexual interest in RC, for what was alleged in the particular charge.  There is no reason to doubt that the jury heeded those directions.

That passage illustrates how trial judges can and do direct juries in ways that emphasise the importance of the need to be satisfied of charged conduct to the criminal standard before reaching a finding of guilt.  This Court recognised in Bauer that such directions are both appropriate and effective, so it is misleading, we say, to think about the risk of the jury misapplying the standard of proof absent the direction endorsed by the Court of Appeal in this case in a vacuum.  There is no reason to think that juries are incapable of following expressed and careful directions that are given to bring home to them the importance of applying the criminal standard before conviction.

The fundamental assumption that I have referred to that jurors follow trial judges’ directions have been affirmed quite recently by this Court in HCF, which is at tab 27 of the joint book of authorities, and the references are [62] and [88].  So, we say it is not simply correct to say that there is only one type of direction that can possibly deal with the risk that the criminal standard of proof will be unacceptably undermined, and that the language of section 61 needs to be stretched to allow or require that one type of direction to be given.

Finally, to reinforce a number of the points that I have made, can I take your Honours to JS, which is at tab 29 in volume 6 of the joint book of authorities.  This is the judgment of Justice Basten which we have referred to multiple times already.  Justices Hamill and Dhanji agreed with Justice Basten, and as I have said, JS was the first post‑Bauer decision in which the New South Wales Court of Criminal Appeal considered how to direct juries when charged acts are used as tendency evidence.  This decision has been applied and unanimously affirmed in later judgments of the Court of Criminal Appeal, including in cases where its correctness was directly challenged. 

If your Honours turn to paragraph 36, I would just like to give an overview of the key passages in the judgment of Justice Basten.  At paragraphs 36 to 37, his Honour referred to this Court’s observations in Bauer that a direction as to the standard of proof should not be given in relation to uncharged acts, and noted that that decision left open the question of what should be done with charged acts.  At paragraph 39, his Honour said that: 

In principle, the same reasoning applies to cross‑admissible evidence of charged acts. 

At paragraph 40, his Honour identified the risk that the jury might be distracted from properly applying the standard of proof beyond reasonable doubt to the elements of the offence.  However, his Honour said that this:

calls for some care in formulating directions; it does not undermine the general principle.

At paragraph 43 – the passage we have already gone to – his Honour responded to criticism of the use of charged acts without requiring proof beyond reasonable doubt. 

None of the reasoning in these passages turned in any way on the particular legislative provisions that exist in New South Wales. The reasoning is couched at the level of principle. The first time his Honour mentions the New South Wales provision, which is section 161A of the Criminal Procedure Act (NSW), is at paragraph 46. His Honour essentially concluded that that section should be construed consistently with the conclusions he had already reached. Appropriately, we say, the respondent has not sought to rely on any suggestion that this reasoning can be put to

one side merely because of differences in the legislation in New South Wales.

At paragraphs 49 to 50, his Honour emphasised two points, each of which we adopt here.  The first is that neither principle nor statute justifies treating uncharged and charged acts in different ways.  The second is that concerns about the jury misapplying the standard of proof to the elements of the events are to be addressed by careful directions to the jury about a need to properly apply the standard.  His Honour said, at paragraph 50:

Whilst accepting that the reasoning process calls for a degree of care on the part of a jury, this is by no means the only area in which careful instructions are required to ensure evidence adduced for one purpose is not improperly used for another.  Where the law requires such distinctions to be made, it is no doubt true that care must be taken in formulating directions to the jury.  However, the directions in the present case were carefully formulated and conformed to the legal requirements.

So, for the reasons I have given, we say that the Court of Appeal was wrong to uphold the direction of the trial judge.  On its terms, section 61 prohibited the trial judge from giving the direction.  The prudential concerns that the Court of Appeal and the trial judge relied on do not change that position.  To the extent that those concerns are real, they are accommodated by the other types of directions required or permitted under the Act. 

There is no warrant for the strained reading of section 61 that is implicit in the Court of Appeal’s decision.  Section 61 is a provision – like the broader scheme of which it forms a part – that was designed to make the jury’s task of understanding and applying jury directions easier, not harder, which we say is the result of the Court of Appeal’s decision.

If the Court pleases.

GAGELER CJ:   Thank you.  Mr Kassimatis.

MR KASSIMATIS:   If the Court pleases.  The Court of Appeal was right to have determined that the proposed direction was necessary.  It was right for three reasons, although the third one was not stated in the judgment.  It was right to have so held because, absent the direction, there is a real risk that the jury will reason in a manner that is circular.  Two, there is a real risk that, absent the specific direction – not general directions of the kinds which are readily given in criminal trials but a specific direction – absent that kind of direction, the jury will engage in a process that will more readily lead them to a finding that a charged act has been proved beyond reasonable doubt.  The third reason – which, unfortunately, did not make it into our respondent’s submissions but has into our summary of oral argument – is the concern that, without the direction, the jury may well find the accused person not guilty after having determined or having used a charged act in order to make out tendency and to find the accused guilty on other charges.

Just to illustrate, take a very simple example: a complainant, ten charges on an indictment.  The jury turns to charge 1, separate consideration, applies tendency reasoning founded upon charges 2 to 10, makes out tendency, finds charge 1 proved beyond reasonable doubt, moves next to charge 2 – could be any charge, take charge 2.  On charge 2, they acquit the accused.  But they have already used their finding of fact on the charged act in proof of charge 1.

This Court has said in cases like Kemp (1951) 83 CLR 341 at 342 by Justice Dixon – it is a very, very short judgment – and in Garrett v The Queen (1977) 139 CLR 437 at 445 by Chief Justice Barwick, with whom most of the other judges agreed without providing a separate judgment of their own, but Justice Murphy went on to broadly agree, but state the principle in his own way – the principle being that an acquittal acts as a finding of innocence, and that it cannot be diminished or fettered. Now, ordinarily that occurs in the context of a retrial – two trials – someone is found not guilty of an offence, then they get tried for a similar offence and it is said prosecution wants to lead evidence which would controvert the earlier acquittal. This Court has said that it cannot do so.

A helpful example is in fact Kemp, where the accused in that trial – the appellant in that trial – had been found not guilty of rape.  He was then charged again, and the prosecution wanted to lead – I will start again, I apologise.  He was charged with three counts of rape, and he was found not guilty, I think on appeal.  He was brought to trial again and the Crown sought to lead evidence of the acts the subject of his acquittals as similar fact evidence – as the common law then recognised propensity evidence, now tendency evidence.  On appeal ultimately to the High Court, the Court said, cannot do it – it places in doubt the incontrovertibility of his acquittals on those charges.  We have copies for your Honours, if that would be helpful.

GAGELER CJ:   What is the principle being applied in those cases?  Is it a form of estoppel – is it an issue estoppel? 

MR KASSIMATIS:   It is not.  It is not issue estoppel; it is res judicata.  The principle was again considered in The Queen v Storey, where the principal focus was whether it was issue estoppel or not.  We decided we did not have to trouble your Honours about that, because the basic principle stated in Kemp and then affirmed in Gardiner was that it did not really matter how you packaged it; you could not controvert the acquittal.

Now, in this case it is a little different, because it is applied within the one trial.  But, in our respectful submission, the principle remains the same.  Would your Honours like the hard copies now?

GAGELER CJ:   Are you wanting us to read something?

MR KASSIMATIS:   No, not really.

GAGELER CJ:   Well, we understand the submission.

MR KASSIMATIS:   Yes, thank you.  Can I commence, then, the discussion with the problems associated with tendency evidence which have led this Court more than once to discuss the caution with which tendency evidence needs to be approached.  Some of those problems have to do with the manner in which juries are in fact invited to use tendency evidence.  One additional problem is the problem your Honour the Chief Justice in Hughes, which was the problem of cognitive bias.

It is against that background that we say the further step – the step of inviting the jury to engage in tendency reasoning, which is founded upon the very act which tendency is utilised to prove – is a step too far.  Take one charge of an indictment – the first charge of an indictment.  It is one thing to say to a jury, look at the uncharged acts; find, if you can, a tendency, and use that to find proved the charged act which you are considering.  It is another process altogether to say to the jury, not only can you take into account the charged acts the subject of each of the other charges on the indictment, you can in fact take into account the very act that you are being asked to prove circumstantially.

In that respect, at least, tendency evidence is curious because it permits a level of self‑corroboration.  One complainant gives evidence of a number of events, those events are relied upon to prove tendency.  That is then used as circumstantial evidence – that is with uncharged acts.  Now you add to the mix charged acts, where we say, if the jury is permitted to engage in that process, it will erode the criminal standard of proof.

On the question of the standard, your Honour Justice Edelman asked my learned friend a question about whether it is just the ordinary use of intermediate facts and whether they have to be proved to a particular standard.  It is different.  It is different because what the prosecution wants to do in this case is rely upon the very act which the jury has to find proved to make good the offence charged.

So, the jury is being asked to reason that an event occurred, and because the event occurred, it is more likely that the event occurred beyond reasonable doubt.  It is one thing to tell a jury, “do not guess” – that is, of course, different to most cases of circumstantial reasoning.  In a circumstantial case where murder is at issue, you might have an eyewitness.  That eyewitness gives eyewitness testimony, direct evidence of the shooting.  There is a body of circumstantial evidence which may go to corroborating that direct evidence, and the jury is told that you can use both, and you can use the latter as independent support of the former in order to decide whether the accused person was the shooter.  But they could never be asked to find that he was the shooter, and use that finding to corroborate their ultimate conclusion that he was the shooter.  That is what is being done here.

We say it is not mere conjecture to recognise that in that context, the process by which the jury may ultimately conclude beyond reasonable doubt that a charge is made out will be compromised, because they are not keeping separate the fact in issue which they have to find proof.  They are not keeping separate their findings about credibility and reliability and using tendency to prove them, they are in fact coming to a provisional view about guilt, and using that to prove guilt.

GORDON J:   Mr Kassimatis, in Gardiner, Mr Game’s submission has been set out at paragraph 190 through to 192.  Is your argument different to that which he put there in that case?

MR KASSIMATIS:   Yes and no.

GORDON J:   Right.

MR KASSIMATIS:   It depends on what the Court makes of our submissions about Kemp and Garrett, and that works this way.

GORDON J:   So, absent Kemp and Garrett, it is the same argument, but Kemp and Garrett adds something to the argument?

MR KASSIMATIS:   In my respectful submission, although we say that the Court of Appeal was correct to have said that the charged acts cannot be used beyond reasonable doubt until they have been proved beyond reasonable doubt, we say that, contrary to your Honour Justice Beech‑Jones’ observation in Decision restricted, the jury could in fact engage in this process without deferring all decisions on charged acts until they are proved beyond reasonable doubt.

That is because each of the charges is a trial in itself.  Each of the charges has to be dealt with separately.  So, on charge 1, putting charge 1 to one side would, in our respectful submission, cure the vice of circularity and the jury could still use charges 2 to 10, effectively, as uncharged acts.

GORDON J:   So, you would carve out of assessment in charge 1 the proof of the tendency by reference to charge 1, but you would do it by reference to the other charges and the uncharged acts?

MR KASSIMATIS:   As an alternative submission, yes.

GORDON J:   I see.  Thank you.

MR KASSIMATIS:   So, when we move to charge 10 ‑ ‑ ‑

EDELMAN J:   Is not the difficulty with that submission that a tendency can never be established by one act?  One does not have a tendency if one has simply done something once.

MR KASSIMATIS:   No, the tendency would still be made up of – the tendency could be made up of all the evidence save the evidence of charge 1.

EDELMAN J:   But charge 1 would never be considered for the purposes of a tendency by itself.  So, your point about using the charged act to prove the charged act would only work if it were the charged act by itself that established the tendency.  Here, it is the collocation of the charged act together with all of the other uncharged acts.

MR KASSIMATIS:   In that respect, we say that the error is manifested in the fact that it is feeding into the tendency, yes.  If you move to charge 2 on that basis, then you would have available to you tendency evidence which excludes charge 2, and you could even use – and the problem of circularity is avoided because the tendency used to prove charge 2 was used only in relation to charge 1 and is not being used in relation to charge 2.  So, that would be one way to do it but, as I say, that is an alternative submission to the one that we primarily put.

GAGELER CJ:   I suppose one version of the argument against you is that if you have wholly uncharged acts which are said to point to the tendency, and just one charged act, it would be possible to add the charged act to the uncharged acts in support of the tendency.

MR KASSIMATIS:   No, our submission would be that you would not.  In our submission, that illustrates the problem, rather than cures the problem.

GAGELER CJ:   I was suggesting that it illustrates the problem as you see it.

MR KASSIMATIS:   Then I happily adopt it, thank you.  That is what I was trying to convey when I gave the example of the murder trial, but your Honour’s example is a better one.  Yes, imagine an indictment where there is one complainant, there is one charge, and there is a body of uncharged acts.  On the reasoning advanced by the applicant in this case, the jury would be permitted to feed into their consideration of tendency the very charge – the only charge – on the indictment.  That, with respect, does amount to circular reasoning.  Whether it would satisfy a logician that it is not circular, perhaps, but in our respectful submission, it was said by our learned friends that it is not circular because it is not an assumption, it is the use of evidence in a finding.

That is right, but it is an assumption, it is an assumption that it is true.  The jury’s task is to determine on any given charge, separately, whether they accept the credibility and reliability of the complainant’s account on that charge, whether they are satisfied beyond reasonable doubt that it is true and reliable.  They should not be permitted, in our respectful submission, to reason from a position that provisionally makes good their findings on credibility and reliability and then uses that provisional judgment – which is really nothing more than an assumption – to make good the charge beyond reasonable doubt.

Now, my learned friend took the Court to Hughes and Bauer, and it is said against us that the proposed direction betrays, on the part of the Court of Appeal, an unprincipled approach and distinction between charged acts and uncharged acts.  Again, one might agree at one level with the submission that circumstantial evidence, however it is characterised, is treated in a particular way, but at another level, there is nothing novel about distinguishing charged acts – which are effectively elements – and attaching to them the criminal standard of proof, and uncharged acts, which have always been treated as circumstantial evidence about which a jury need not come to any firm view or to any standard of proof.  If what is said is that the court identified a distinction, then, yes, they did, but is not unprincipled.  It is driven by principle.  It is driven by notions of analytical reasoning to ensure that it is not circular, and adherence to the criminal standard of proof.

Also, the central question in this application, in our respectful submission, is whether the direction is necessary.  It is said that we used the notion of necessity in two different ways in our submission, and perhaps we have – if we did, I am sorry.  But so that it is unequivocal, what we are saying here – first, on the question of circularity – is it is logically circular.  It is, in principle, conceptually circular, in which case the direction is necessary.  But, in the alternative, if it involves a level of circularity which might create a risk that the jury will not apply to its task a conscientious approach or adherence to principle, that, too, gives rise to a necessity – necessary in the sense of ensuring that one avoid a perceptible risk of a miscarriage of justice.

EDELMAN J:   What do you say to the appellant’s proposition that it is not using all of the elements of a charged act as part of the tendency, it is looking for just the actions that are involved in the charged act or some aspect of that charged act in combining that with the other conduct that amounts to the tendency?

MR KASSIMATIS:   A number of things can be said about it.  The first, is the action about which we are having the present debate is the action which amounts to an element of the offence.  I mean, on the charge of incest, it is penetration.  It has to be that, otherwise the reasoning process on which our learned friends rely – which is an adoption of your Honour Justice Beech‑Jones’ approach in the Decision restricted – it has to be that, otherwise there is no point relying upon it.  It has to be the charged act, or the reconsideration process that his Honour referred to just falls away.

As lawyers, we draw upon conceptual differences, and my learned friend has relied upon one.  She has said, on the one hand, an element has to be looked at as almost an abstract concept; it is an ingredient of the offence charged, you can find it in a textbook, you can find it in a statute or at common law.  But, as your Honour Justice Edelman said earlier, it is a fact.  All elements are facts.

Here, we say the problem of circularity identified by your Honour the learned Chief Justice’s question and the example of, let us say – well, it is that very example – persists.  So, it is clear enough if you have one charge of rape, you have uncharged acts, you cannot use the uncharged acts in order to prove that the act occurred.  Now, there is no basis upon which to distinguish or to suggest that the process on which the prosecution wants to rely in this case is any less objectionable.  It should not matter that there are 10 charges.

GLEESON J:   Is your argument on that point not inconsistent with admitting the admissibility of the acts as tendency evidence?  I thought that the premise stated earlier in Ms Orr’s argument was that the admissibility of the evidence was not in issue.

MR KASSIMATIS:   Well, that decision was made long before we came on board, so we have not really exactly turned our minds to it.  No, would be the answer if each of the other charged acts could be used in tendency to prove the charged act under consideration.  Then, no, I think the concession was properly made if that happens.

Putting to one side section 61 and the true construction of the section, this Court has recognised that there are cases where, notwithstanding the principles set out in Shepherd, even uncharged acts might require the attachment to them of the criminal standard before they are used.   In particular, in HML v Queen – and this is at tab 11 of volume 3 of the book of authorities, part C, commencing at 293 and pages 361 to 362 of the authorised report, paragraph 31 – his Honour said:

Where a complainant’s evidence of uncharged acts is relied upon by the prosecution as evidence of motive –

This is uncharged acts:

in order to support the complaint’s evidence of the charged acts, two considerations may arise.  First, if that evidence is an indispensable step in reasoning towards guilt then it may be necessary and appropriate to give a direction about the standard of proof in respect of such evidence.  Secondly, it may be unrealistic, in cases such as the present, to contemplate that any reasonable jury would differentiate between the reliability of the complaint’s evidence as to the uncharged acts and the complainant’s evidence as to the charged acts.  That will not always be so.

I pause there.  That is uncharged acts.  What is the likelihood that the jury is going to be able to differentiate when you add charged acts?  And insofar as it is said almost against us that part of our argument is prudential in nature – part of the call for the direction is that it is prudential in nature – we adopt that, with respect. 

Shepherd determined that circumstantial facts need not be proved beyond reasonable doubt, unless they were indispensable links in the chain of proof towards verdict.  HML recognises, and Bauer in turn adopted this proposition, that – this is for uncharged acts – ordinarily one need not attach the criminal standard to them, and attaching the criminal standard to them is not confined to just occasions where they are indispensable links in the chain, but to where there is a real risk that they will be treated. 

This Court has demonstrated a readiness in the past to ensure that there are constraints in place to avoid a jury reasoning, not only impermissibly, but improperly, towards a finding of guilt.  We say that the use of charged acts as circumstantial evidence and building into it an invitation to find charged acts proved to a lesser standard, it is another step, and it is a step too far. 

The direction, we say, is necessary, and it is emboldened by the fact that the alternative response to the problems that may arise is little more than an emphasis on general directions.  Juries are told that they cannot find elements of proof beyond reasonable doubt.  Juries are told not to guess when it comes to circumstantial evidence.  These directions are, of course, given, and we readily accept that they are given.  What they do not do is address the particular vice.

BEECH‑JONES J:   Mr Kassimatis, if you just had five charged acts, and the evidence of each was cross‑admissible as tendency on the others, I think on your approach, you would have to do what the trial judge did here and say, start with one of the charges, and look at it by itself.  Is that right?

MR KASSIMATIS:   Yes.

BEECH‑JONES J:   If you did that, then the fact that the other evidence was cross‑admissible would be wiped away, because on that approach you could not look at anything to do with the evidence in support of the other four counts on that count, could you?

MR KASSIMATIS:   No, you could.

BEECH‑JONES J:   How?

MR KASSIMATIS:   Because the evidence relating to the other charges might be evidence that is referable to all of them, but not amount to charged acts.

BEECH‑JONES J:   We are talking about the tendency.

MR KASSIMATIS:   In this case ‑ ‑ ‑

BEECH‑JONES J:   In a case of five separate offences, charged acts, cross‑admissible as tendency, and you get to the first one, you say you cannot look at the evidence in relation to other four in support of a tendency.

MR KASSIMATIS:   But is your Honour putting to me that the only thing that tendency is founded upon are the charged acts themselves?

BEECH‑JONES J:   In this case, the five charged acts.  It destroys the assumption that they are cross‑admissible, does it not, or how you get there in the first place?

MR KASSIMATIS:   Theoretically, that problem could arise, but it is very unlikely.

GORDON J:   But you have two answers, I understand, to Justice Beech‑Jones’ question.  First of all, you say that the proposition he put to you is right, that is that it would not be permissible to look at the charged acts in relation to the tendency.  That is your first proposition, and your alternative case is that you take one that would take into account the charged acts for counts 2, 3, 4, and 5, without reference to charge 1.

MR KASSIMATIS:   Yes.

EDELMAN J:   Why would your alternative proposition not be met by the point Justice Gleeson made to you earlier, which is dealing with that concern about the use of aspects of or all of count 1 in the proof of count 1 by addressing that concern at the stage of asking what amounts to the tendency.  In other words, the tendency is a tendency to commit acts of this nature, and acts of this nature, by definition, excludes this act itself.

MR KASSIMATIS:   Yes, what I was trying to get to with your Honour Justice Beech‑Jones was that if all there is in proof of tendency for admissibility purposes is that five acts occurred against, let us say, five different complainants, I am not sure it gets the tendency.

BEECH‑JONES J:   No, same complainant, simple case; five acts against the same complainant.

MR KASSIMATIS:   Immediately, you have sexual interest.

BEECH‑JONES J:   It may be so, but I am just giving you the proposition that on your approach would that first count on your primary argument, even though it is set to be admissible as tendency evidence – the evidence of the other four acts – it could never be brought to account by the jury, because you say, no, you have to look first at the first count – this is the trial judge’s direction here.

If there were no uncharged acts, you have to be satisfied beyond reasonable doubt of the evidence alone on that count.  Then, if you are satisfied of that, you could use the evidence of that on count 2.  But at the starting point, the evidence on the other four counts could not be brought to bear, even though it is said to be admissible as tendency evidence.

MR KASSIMATIS:   Yes, I think that is my problem – my problem is with that premise.

BEECH‑JONES J:   You say, well, I do not accept the premise that it is admissible as tendency evidence ever.

MR KASSIMATIS:   Well, each case ‑ ‑ ‑

BEECH‑JONES J:   Let us make it thirty.  Same example, on your approach when you get to the first count ‑ ‑ ‑

MR KASSIMATIS:   But your Honour is putting to me a case where there were thirty charged acts and there were not uncharged acts.

BEECH‑JONES J:   Exactly, I am testing your proposition.  If you get to this case and just take out the uncharged acts on that direction, that the trial judge said he would give, you would never bring to account the evidence said to be admissible as tendency evidence on the remaining counts when you got to the first count.

MR KASSIMATIS:   Well, that might be so and that might lead to prosecutions being brought and considerations informing how indictments are drafted.

BEECH-JONES J:   But it would be contrary to section 97 of the Evidence Act, because that says it is, is it not?  That is where we start from.  You are just excluding relevant evidence from the jury’s consideration of the first count.

MR KASSIMATIS:   Well, I am not sure it gets to – can I come back to you?

BEECH-JONES J:   Yes.

MR KASSIMATIS:   Thank you.

GAGELER CJ:   That might be a suitable moment to pause for the luncheon adjournment.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

MR KASSIMATIS:   Can I commence by attempting to answer that outstanding question that your Honour Justice Beech‑Jones made.  The proposed direction is intended to protect the integrity of any finding relating to a charged act.  In a trial on indictment where charges, let us say five charges, are preferred, the jury would only be precluded in their consideration of any one charge from considering outstanding charged acts, not, in my submission, the surrounding circumstances relating to each charge.

So, in this case, for example, there are incidents where the accused man is alleged to have gone into the bathroom while the complainants are showering.  It is neither an uncharged act nor is it said to be a charged act.  That, it would seem to us, with respect, is available to the jury in its consideration of any given charge.

Insofar as the charged acts themselves are concerned, then our primary submission is, yes, they cannot be taken into account as tendency unless they are proved beyond reasonable doubt.  Primarily, that means that the jury would need to undertake the task which the trial judge in this case said they would need to undertake with his draft direction.  Our alternative position is, they would have available to them the charged acts not the subject of the charge they were considering, but the balance of the charged acts.  So, I hope that answers your Honour’s question.

BEECH‑JONES J:   Thank you.

MR KASSIMATIS:   It is said against us that that process, the process in particular which his Honour manifested in the direction he proposes to give the jury, is a mandate for sequential reasoning, and it is complex and confusing.  Jurors, of course, have to consider each charge separately in any event – to that extent, at least, they have to move through the indictment sequentially.

But the reconsideration process which our learned friends find offensive is really not that different to the process which the New South Wales Court of Criminal Appeal said was necessary in considering each charged act, namely, first determining whether the charged act occurred to a standard less than the criminal standard, feeding that into a proposed tendency, and then revisiting the original findings to determine whether it is found proved beyond reasonable doubt.

There are no easy answers.  I mean, this is hard whatever the resolution, and that submission, with respect, applies also to the claim made against us that this direction would be too confusing or too complex to follow.  The draft direction given by the judge is not easy, but it is comprehensible, and if it means preserving the integrity of the charged acts, and is necessary in that sense, either as a matter of law or so as to avoid a risk of a miscarriage of justice, then ‑ ‑ ‑

GAGELER CJ:   Does it run the risk of different outcomes, depending on which charge is considered first?

MR KASSIMATIS:   You mean the ‑ ‑ ‑

GAGELER CJ:   If you shuffle up the charges can you get different outcomes?

MR KASSIMATIS:   I would not have thought so.

GORDON J:   Can I ask another question.  Does it also mean that, on your approach, the Crown might very well choose to charge less in order to bring about a different outcome?

MR KASSIMATIS:   That might be a result.  That is not an offensive result.

GORDON J:   No, I am just asking what the – we are trying to test what the consequences are of your proposition.

MR KASSIMATIS:   I mean, that level of choice occurs now.  This trial could have had many more charges attached to it; all the Crown needed to do was attach the label charge to any of its uncharged acts.  These are decisions that readily inform how indictments are drawn.  But to answer your Honour the Chief Justice’s question, the jury is not bound to consider any given charge first or second or in any other order.  They are at liberty to move their way through the indictment however they choose.  I know indictments are often drawn in a chronological order, but the jury is not bound by that.

I move on, then, to the question of section 61 and its proper construction.  The Court of Appeal’s reasons do not betray a conflation of the notions of elements and evidence.  All they do is manifest a view, which their Honours obviously took, that in inviting a jury to reason using acts which are the subject of charges on an indictment, whether it is used as tendency reasoning or whether it is the last decision they have to make on a particular charge, they are in fact being asked to use factual findings which amount to elements of the offence.

That is the short answer for what the Court of Appeal was thinking, and it demonstrates neither an elision of the notions of elements and evidence or a conflation of the two.  The notion of an element of an offence – it is nebulous in the sense that, at a conceptual level, we all know that it represents the conditions precedent to guilt or the ingredients of an offence, but we also know that it represents an ultimate finding of fact – almost always an ultimate finding of fact.  In this particular case, those same findings, those findings which represent the decision about whether the jury find to prove that that element of the offence, are being used in two ways, first as an intermediate step and then as a final outcome.

The court is simply saying, if you are going to address an element, whether you do so as circumstantial proof or as a final outcome, you need to be satisfied beyond reasonable doubt.  In that sense, we say, rather than a failure to be accommodated by section 61, what it is is a mandate to ensure that, however they are used, elements have attached to them the criminal standard of proof.

One of the first things that their Honours did in their judgment at page 27 of the court appeal book, paragraph 4, was to say that it was noteworthy that the Crown were relying upon charged acts.  That was their principal concern.  Then, at court appeal book page 39, paragraph 33, the court said:

every sexual act alleged in every charge on the indictment is an element of that charge . . . no matter the use sought to be made of the evidence –

So, it is pretty clear what their Honours were intending.  The question then becomes is the element of an offence something wholly abstract which kicks in only at the very end of the process, or does the reference to “element” in the statute accommodate its practical effect, which is the ultimate finding – that finding which represents the ultimate finding.

Authorities such as Smith v The Queen, which was an identification case, there the Court referred to elements of the offense.  They use phrases such as “ultimate issue”, issue about the facts which constitute those elements.  So, the statute says there are matters – a subset of those matters are elements.  In our respectful submission, if those same facts are going to be used at an intermediate stage and in proof then they should have attached to them the criminal standard.

GAGELER CJ:   So, you say the word “matters” in section 61 refers to issues about facts?

MR KASSIMATIS:   It can include, yes.  I cannot quite remember now, but one of the authorities referred to the elements as factual elements and that is what these are.  If the direction is necessary then it should be given.  If the direction is necessary, in the sense that it avoids the risk of a perceptible risk of miscarriage of justice, then ordinarily it will be given.  Concerns about complexity, brevity, clarity – of course they inform the construction of the statute, but they do not assist too much in deciding what is necessary and what is not necessary, and sometimes deciding whether to

give a direction on a prudential basis to avoid the risk of miscarriage is something about which reasonable minds differ. 

In Hamilton (a pseudonym) v The Queen, it split the Court.  Your Honour Justice Edelman and your Honour Justice Gleeson decided that an anti‑tendency direction was necessary, the rest of the Court said that it was not.  Your Honours recognise that sometimes when it comes to tendency reasoning, a jury – not only will they act impermissibly unless they are given the direction, there is a risk they will, despite the direction.  Here, we have got another layer of potential prejudice.

In summary, then, we say the process on which the prosecution intends to rely does have built into it a level of circularity which compromises the inductive method, it also betrays the real risk that unless they are given the direction, the jury will not adhere to the standard of proof.  A third objection we have to the problem – to the reasoning process – is that it will almost inevitably cut across any acquittal which an accused person might enjoy as the jury reasons through the indictment.  One does not have to strain section 61 much, or at all, to have it accommodate the natural meaning of the phrase “element” or, to use the authorities, “factual element”, or “ultimate issue”.

Those are our submissions, with respect.

GAGELER CJ:   Thank you, Mr Kassimatis.  Ms Solicitor, do you have anything in reply?

MS ORR:   Only briefly, if the Court pleases.  Could I deal with the respondent’s reliance on Kemp and Garrett, the two decisions that were referred to at the outset.

GAGELER CJ:   Yes.

MS ORR:   Those cases indicate that if an accused is acquitted of a charge, the prosecution cannot lead evidence in a later trial that goes behind the acquittal.  The way that Chief Justice Barwick framed the principle in Garrett was that:

the acquittal may not be questioned or called into question by any evidence which, if accepted, would overturn or tend to overturn the verdict.

That was at page 445 of the judgment.  Our learned friend correctly said this morning that that is based on res judicata.  Chief Justice Barwick in Garrett expressly averted to res judicata, and Justice Dixon did so implicitly by referring to Privy Council authority on that point.

The respondent says that the same principle should also apply to the jury’s consideration of evidence within the same trial, and we think that the simple answer to that is that it cannot be correct.  The very nature of res judicata is that it is a principle about the finality of a judgment or verdict, and here the jury is not being invited to trench on a prior verdict.  It is simply considering the evidence for itself, and therefore principles which are concerned with the finality of a judgment or verdict that has previously been given, we say, are irrelevant.

The second point is that the respondent made today what was described as an alternative submission for the first time.  The alternative submission, as we understand it, is that when considering the tendency in relation to each particular charge, the jury should exclude the evidence of the charged conduct of that charge but could still consider the other charged conduct.  The first point I want to make about that is that that is not what the direction endorsed by the Court of Appeal does.  It requires, expressly, all charged conduct to be disregarded for the purpose of inferring the tendency before it is proved beyond reasonable doubt.  So, it is not the direction that we are dealing with here.

But the second point is that, in any event, even if we were, that alternative direction would still, we say, be inconsistent with section 61.  It might be a more limited direction than the one the trial judge had said he will give in the sense that it means that the standard of proof is attached to a smaller subset of the evidence.  But even in that more limited operation, it still offends section 61 for all the reasons that we have already given.  It would still involve attaching the criminal standard of proof to evidence that is being relied on to support a tendency, the evidence of the conduct, and so it cannot be a direction about the standard of proof attaching to an element of the offence charged.

EDELMAN J:   Ms Solicitor, suppose you had a charge of one offence – only one count – but four uncharged offences which are relied upon for the purposes of tendency.

MS ORR:   Yes.

EDELMAN J:   Your submission, as I understand it, is that in order to determine whether the tendency exists, the jury can consider the four uncharged counts together with the charged count.

MS ORR:   That is so.

EDELMAN J:   Is that right as a matter of tendency?  When one thinks of tendency, would it not usually be, it is a tendency to commit acts in the

nature of the charged act, so that one would look to see whether or not charged or uncharged other acts form part of a series that can establish a tendency which would then be used to say, well, you have a tendency to do something of this nature, rather than including the act itself in the tendency?

MS ORR:   We say that there is nothing wrong with including the act itself in the tendency, because what the prosecution is attempting to establish is that the accused has that tendency.  And the language of section 97 of the Evidence Act, which I was trying to turn up, is not about a tendency in support of the charged acts – it is a tendency simpliciter.  And there is no problem, we say, with including both the uncharged and the charged acts in proof of that tendency which can then be plugged in to assist the jury in deciding whether or not the person is guilty of the charge.

So, we do not accept that a tendency should be thought of as something that is separate and cannot incorporate the charged conduct, because it is just the existence of a factual tendency that the person has a sexual interest in children under a particular age, or a tendency to act on that sexual interest.  So, I hope that has answered your Honour’s question.

EDELMAN J:   It makes it a little bit difficult when one thinks of the second stage of the inquiry in Hughes, which is:  did those matters that established the tendency make it more likely that the event occurred on this occasion?

MS ORR:   Yes.  But that goes to the admissibility question.  That is the second stage of the admissibility question, and I maintain the answer that I gave to your Honour this morning – that our position on tendency reasoning by the jury is not inconsistent with this Court’s approach to assessing the admissibility of tendency evidence using the two‑stage test in Hughes.

The only other point I wanted to make was in response to the idea that the jury direction is complex for the jury whichever you cut it in this case, that whether you apply the trial judge’s approach or not, this is a very complicated thing for the jury.

With respect, we say that it is a considerably less complicated exercise for the jury to look at all of the evidence that is put before them to establish a tendency, to decide whether that evidence establishes a tendency, and then to go through each of the charges one by one – if they found the tendency – adding that tendency in to its consideration of that charge.  That is a much simpler exercise for a jury than the complicated exercise that I spelt out in our submissions in‑chief that would be necessary if this direction is to be given.

Those are the submissions that we wish to make in reply, if the Court pleases.

GAGELER CJ:   Thank you.  The Court will consider its decision in this matter and will adjourn until 10.00 am tomorrow.

AT 2.38 PM THE MATTER WAS ADJOURNED