BW v R [2026] NSWCCA 104 | Case summary | Zoe

NSWNSWCCA

BW v R

[2026] NSWCCA 104

Court of Criminal Appeal (NSW)|2026-07-10|Before: Mitchelmore JA; Dhanji J; Emmett J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2026-07-10

Before

Mitchelmore JA; Dhanji J; Emmett J

Catchwords

CRIME — appeals — appeal against conviction —unreasonable verdict — offences under s 61M(2) of the Crimes Act 1900 (NSW) — element of offence that complainant be under the age of 16 years — whether evidence on count 2 established beyond reasonable doubt that complainant was under the age of 16 years at the time of the offence — whether complainant’s evidence on count 3 established beyond reasonable doubt acts alleged to constitute offence — verdicts on counts 2 and 3 unreasonable — verdicts quashed — resentence on remaining counts CRIME — appeals — appeal against conviction — miscarriage of justice — directions to jury — tendency evidence — whether tendency directions considered as part of the summing up as a whole deflected the jury from its ultimate task — directions sufficient CRIME — appeals — appeal against sentence — unnecessary to determine given resentence

Catchwords

CRIME — appeals — appeal against conviction —unreasonable verdict — offences under s 61M(2) of the Crimes Act 1900 (NSW) — element of offence that complainant be under the age of 16 years — whether evidence on count 2 established beyond reasonable doubt that complainant was under the age of 16 years at the time of the offence — whether complainant’s evidence on count 3 established beyond reasonable doubt acts alleged to constitute offence — verdicts on counts 2 and 3 unreasonable — verdicts quashed — resentence on remaining counts CRIME — appeals — appeal against conviction — miscarriage of justice — directions to jury — tendency evidence — whether tendency directions considered as part of the summing up as a whole deflected the jury from its ultimate task — directions sufficient CRIME — appeals — appeal against sentence — unnecessary to determine given resentence

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: BW v R [2026] NSWCCA 104

Hearing dates: 13 April 2026

Date of orders: 10 July 2026

Decision date: 10 July 2026

Before: Mitchelmore JA; Dhanji J; Emmett J

Decision: (1) Grant the applicant leave to appeal against conviction and sentence.
(2) Allow the appeal against the convictions on counts 2 and 3 on the indictment.
(3) Quash the convictions on counts 2 and 3 and, in lieu thereof, enter verdicts of acquittal on counts 2 and 3.
(4) Quash the sentence imposed by the District Court on 19 December 2024.
(5) In lieu of the sentence imposed in the District Court, sentence the applicant to an aggregate term of imprisonment of 16 years, to commence on 3 August 2023 and expire on 2 August 2039, with a non-parole period of 11 years. The earliest date on which the applicant will be eligible for release on parole is 2 August 2034.

Catchwords: CRIME — appeals — appeal against conviction —unreasonable verdict — offences under s 61M(2) of the Crimes Act 1900 (NSW) — element of offence that complainant be under the age of 16 years — whether evidence on count 2 established beyond reasonable doubt that complainant was under the age of 16 years at the time of the offence — whether complainant’s evidence on count 3 established beyond reasonable doubt acts alleged to constitute offence — verdicts on counts 2 and 3 unreasonable — verdicts quashed — resentence on remaining counts CRIME — appeals — appeal against conviction — miscarriage of justice — directions to jury — tendency evidence — whether tendency directions considered as part of the summing up as a whole deflected the jury from its ultimate task — directions sufficient CRIME — appeals — appeal against sentence — unnecessary to determine given resentence

The complainant said that on this day she had smoked cannabis, having driven to Kentlyn with the applicant so she could do so. She said that while the applicant would also smoke cannabis “here and there” he did not do so on this day.
The above was the full extent of the complainant’s evidence in chief with respect to count 2. With respect to timing, the evidence was limited to the event having occurred in 2010. While the complainant was 15 for nearly all of that year, the evidence left open, as a reasonable possibility, that the event occurred after she had turned 16, that having occurred on 7 December 2010. It might also be noted that insofar as LB said the event was in 2010, the transcript suggests some uncertainty. The complainant answered, in response to a leading question as to whether the event occurred in 2010, “Yes, that I know of”. The complainant also agreed that she had sexual interactions with the applicant after she turned 16. She also agreed that the driving lessons were more frequent after the applicant had moved to live with his sister. There was evidence the applicant was still living with his sister after LB turned 16 in December 2010. LB’s evidence in chief was, therefore, consistent with a sexual interaction having taken place between the applicant and LB in the context of a driving lesson after LB had turned 16.
The next event of which the complainant gave evidence occurred on 17 September 2010, and was relied on in relation to counts 3, 4 and 5. The date of the event was able to be established by records obtained from the Hermitage Hotel. It was not, however, contended on this appeal that any inference was available that the complainant’s evidence was a chronological narrative such that count 2 necessarily occurred before 17 September 2010 (resolving any question as to her age in relation to that count).
While the evidence in chief of LB was deficient as to proof of her age, the respondent submitted that evidence she was under 16 at the relevant time was given in cross-examination. Having been taken to the event, the following evidence was given in cross-examination:

This is not unequivocal evidence that the complainant was under 16 when the applicant kissed her at Kentlyn. The proposition put to the witness was untrue if either the applicant kissed her in his car at Kentlyn before she was 16, or if the applicant kissed her anywhere before she turned 16. In context, and having regard to the jury’s advantage, we would, however, accept that it was open to the jury to understand the response as referable to the complainant being under 16 at the time of count 2. This was, therefore, some evidence of the element requiring proof she was under 16. It was, however, far from convincing. The answer was in response to a question quite clearly asked for the purposes of putting the applicant’s case to the complainant. It effectively invited a denial. There was nothing in the answer suggestive of an actual recollection by the witness of her age at the time.
The uncertainty as to the timing of count 2 is to be understood in a context where the complainant’s evidence was being given more than 12 years after she turned 16, when she was 28 years old. There was, furthermore, no evidence which suggested the complainant was able to anchor her recollection of when the event occurred by reference to some other event, the date of which was more certain.
On this Court’s assessment of the evidence, while we would accept there was an incident as described by the complainant for the purposes of count 2, we are not satisfied beyond reasonable doubt that the complainant was under 16 at the time. The nature of the evidence with respect to this narrow issue is such that any advantage held by the jury was slight. Any such advantage is not sufficient to resolve the doubt.
Based on the conclusion with respect to proof of LB’s age, it is not necessary to determine the second aspect of the argument with respect to this count, that the evidence did not establish that the kiss was indecent. In deference to the helpful submissions of the parties we will, nonetheless, express our view.
The jury was directed that, to be indecent, the assault (made out by the contact inherent in the kiss) must “clearly or unequivocally [have] a sexual connotation or overtone” or, alternatively, that the applicant “intended to obtain sexual gratification from it”. There was no evidence of where or how LB was kissed. This is not a case in which there was lay opinion evidence from LB about the character of the kiss, which might have been admissible subject to the considerations which arose (and about which the Court was divided) in R v Whyte [2006] NSWCCA 75 at [30]-[36] (Spigelman CJ), [56]-[57] (Simpson J) and [67] (Barr J). The evidence also did not establish beyond reasonable doubt that the rubbing of the applicant’s thigh occurred at the same time as, or immediately prior to, the kiss. This may have been sufficient to discern that the assault had an unequivocal sexual connotation, but being absent, the jury could not be satisfied beyond reasonable doubt that the assault had an unequivocal sexual connotation. As the assault was equivocal “in the sense that it may have a sexual import or it may not” (Harkin v R (1989) 38 A Crim R 296 at 302), the jury needed to be satisfied beyond reasonable doubt that the applicant intended to obtain sexual gratification from the kiss. There was some evidence from which that inference might arguably be drawn. The rubbing of the thigh, even if it occurred earlier in the drive, would be of relevance to this inquiry, and the jury may have been informed by its findings on tendency, especially if the jury was satisfied that the applicant had a sexual interest in the complainant. Nevertheless, given the full context of the applicant’s relationship with LB, something more was needed in the evidence about the applicant’s behaviour or the character of the kiss, before a conclusion could be reached beyond reasonable doubt that the applicant intended to obtain sexual gratification on that occasion.
It follows from the above that the verdict on count 2 is unreasonable.

As can be seen, having agreed that her evidence as to what happened leading to the sexual intercourse was not based on any actual memory, LB was taken to a representation she had made to the police. That representation appears to have been the basis on which count 3 was particularised, the complainant having told police that the applicant “touched [her] on the tits and kissed [her] underneath [her] clothing”.
The respondent submitted that it was necessary to watch this part of the recording of the complainant’s evidence as, according to the submission, LB can be seen to nod twice in a manner responsive to each of the two propositions, the touching of the breasts and the kissing underneath the clothing, actions otherwise undiscernible from the transcript. We accept this is a legitimate forensic reason for us to view this part of the recording: The King v ZT at [18]. The applicant did not submit otherwise. The Court has accordingly viewed this part of the recording. We have not done so for the purposes of usurping the jury’s function (to assess LB’s credibility) but rather for the purpose, as we understood it to be put by the respondent, of understanding the extent of the advantage held by the jury, including aspects of the evidence given by LB in non-verbal form.
The relevant question was asked slowly, with a clear demarcation between the two aspects of the conduct. LB can be seen to give a small nod, consistent with an affirmative acknowledgment, immediately after the word “tits” and again after the word “clothing”. In the answers that followed, LB, at least by implication, appears to maintain that the applicant touched her on the breasts. Her only evidence as to being kissed underneath her clothing was the affirmative nod in response to a question asking if she told the police this had occurred. There is, on its face, an inherent ambiguity as to whether the affirmation was an indication the witness understood that she was being asked about a representation she had made to the police, or was a positive affirmation as to the occurrence of a past event. We accept the jury had some advantage (noting that any advantage was limited to a degree by the fact that the jury did not see LB in person, her evidence having been given by the playing of a recording of her evidence from an earlier trial). However, even if it was open to the jury to conclude from LB’s demeanour that she was acknowledging a past event, there were two past events – making the representation to the police and the event in the hotel room itself. It was not suggested that this was a case where there was anything in LB’s presentation such as, for example, spontaneous distress which might have allowed the jury to infer the question brought to mind the original event. The evidence does not allow a conclusion that LB gave direct evidence that the event occurred.
In acknowledging that, at the least, the representation reflecting count 3 as particularised had been made to the police, there was before the jury evidence of LB’s out of court representation that the applicant had touched her breasts and kissed her underneath her clothing. Having been admitted, the evidence was before the jury as evidence of those facts: Evidence Act 1995 (NSW), s 60. Consequently, a no case submission at the close of the Crown case would have failed. That there was a case to answer, does not, however, answer the question posed by s 6 of the Criminal Appeal Act 1912 (NSW) of whether the verdict is unreasonable: Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51.
We accept that the out of court statement made to police was some evidence of the event. Further, it must be accepted that the jury generally found LB to be an honest witness, from which it might be inferred she had made a genuine attempt to tell the police the truth. Her statement, however, was not made on oath, or in the atmosphere of a courtroom. While these factors most obviously go to honesty (which, based on the jury’s verdict, is not in issue) they are also relevant to reliability more generally. The taking of an oath and the atmosphere of a courtroom may make a witness more cautious in making statements which they are unsure about. Further, and perhaps more significantly, there was nothing beyond the bare bones of the out of court statement on which to found a conclusion it was reliable. Having regard to LB’s lack of recollection when giving evidence, and her evidence of other occasions of sexual activity with the applicant, one obvious possibility is that LB’s recollection when making the representation to the police was based on an event other than that which took place in the hotel room. In circumstances where LB did not give evidence of the particulars in chief, acknowledged in cross-examination that she did not recall the events leading to intercourse, and inferentially, did not, at the time she gave evidence, recall count 3, it is not possible for us to be satisfied beyond reasonable doubt the event occurred. The advantage held by the jury is not capable of resolving this doubt. The verdict on count 3 is unreasonable.
With respect to count 5, it was not in issue on the appeal that the allegation to be proved was penile vaginal intercourse in the shower. This is consistent with the directions given to the jury that counts 4 and 5 were allegations of, respectively, penile vaginal intercourse “on the bed and in the shower” at the hotel.
LB, in giving evidence of the events preceding count 5, was somewhat vague, stating “I don’t know what exactly, but we ended up having sex”. Nor could LB recall how the intercourse ended. Indeed, as reflected in our conclusion with respect to count 3, LB’s recall of the event generally appears to have been poor. In cross-examination, LB accepted that she was not able to recall the type of alcohol that she and the applicant drank, other than that it was strong, that it came in a bottle and they drank it from glasses. She agreed that on a previous occasion she had said she could not recall taking her clothes off. Further, LB recalled that the room had a bath. She was pressed on this and was firm in her recollection. LB was shown photographs of the room and rejected the photographs as being of the relevant room, the photographs having been taken 13 years after the event and thus potentially explicable on the basis of the room having been renovated. It was, however, an agreed fact that although there are rooms at the Hermitage Hotel which do (and inferentially did) have baths, the room booked by the applicant for 17 September 2010 has never had a bath. LB also accepted that she had, on a previous occasion, given evidence of the applicant having attempted anal sex with her in the shower, but she did not give any such evidence in chief.
It must be accepted, given the above, that there were deficiencies in LB’s recollection surrounding count 5. That said, the evidence in relation to this count was of a different quality to that which led the jury to have a doubt with respect to count 1, and to that which has led us to the conclusion that the verdicts in respect of counts 2 and 3 are unreasonable. LB, without leading, gave evidence of having had sexual intercourse in the room. When asked where in the room this occurred, LB said it was “[i]n the bed, and also happened in the shower”. It was clear from her evidence that she was speaking of two separate occasions of penile vaginal intercourse. Thus, unlike counts 2 and 3, there was no issue of LB not coming up to proof in her evidence in chief. Further, she had specific recollection of the applicant having told her to look in the mirror, a matter which lent a particularity to her recollection. It was open to the jury to find that, as a result of the passage of time, while some of the peripheral detail had faded, LB had a clear and specific recollection of intercourse having taken place in the shower at the hotel: see SS v R [2025] NSWCCA 153 at [32]. The jury’s verdict in relation to count 5 was not unreasonable.
While no submission was made in this regard, in coming to our view with respect to count 5 we have not overlooked the fact that our conclusion has been reached after finding that neither of counts 2 or 3 were established beyond reasonable doubt. For essentially the same reasons as the verdict on count 1 did not give rise to a doubt with respect to the other counts as against LP, nor does any doubt with respect to counts 2 and 3. That is, the basis for those doubts is not such as to impact the positive view the jury reached with respect to LP’s honesty and reliability more generally.
Counts 2 and 3 were, of course, also relied on for a tendency purpose with respect to the other counts against LB including count 5, the verdict with respect to which was said to be unreasonable. The upholding of the appeal with respect to count 3 is of no moment given the conduct relied on was a precursor to the conduct in count 4. Count 3 in the circumstances added nothing by way of tendency to what was established by count 4. Count 2, it must be accepted, was, unlike count 3, a standalone incident. It was theoretically possible based on the directions for the jury to have used this as tendency evidence in proof of count 5 (and indeed count 4). We regard this, however, as unlikely, given the very different nature of the allegations as between count 2 and counts 4 and 5. Against that possibility, even if count 2 was used for tendency reasoning, a conclusion that the offence was not proved beyond reasonable doubt does not prohibit such a course. This observation has a particular salience when regard is had to our reasons for upholding the appeal with respect to count 2. Our view as to count 2 does not impact the conclusion that the verdicts with respect to the remaining counts against LB are not unreasonable.
Counts 2 and 3, were, of course, also relied on as tendency evidence with respect to the other complainants. The real work with respect to tendency reasoning was, however, done by the incident in the hotel room (counts 3, 4 and 5). The loss of count 3 has no impact on the finding that the event in the hotel room occurred. The occurrence of the event in the hotel room was what was significant for tendency purposes (rather than the precise manner in which the event unfolded). With respect to count 2, the absence of this count could have no material impact on the relevance of offences having been committed against LB when considering whether offences were committed against the other complainants. The salience of offences by the applicant against LP for the purposes of proof of a tendency relevant to proof of the offences against the other complainants was all in the events in the hotel room to which little or nothing was added by the allegation in count 2 (which, in any event, was only just short of having been proved beyond reasonable doubt).
We would only add that the process we have engaged in serves to highlight the unnecessary complexity of the tendencies relied on in this case. The real work for tendency reasoning here was as between the different complainants. Relying on tendency evidence in the context of what were “all or nothing” contests with respect to individual complainants served only to add complexity and with it the potential for confusion, as will be seen in the context of the tendency directions, the subject of complaint in ground 2.

In The King v AR [2026] HCA 10; 100 ALJR 545 (“The King v AR”), the joint judgment of Gageler CJ, Gleeson and Beech-Jones JJ stated that the mere fact that a tendency direction does not comply with [37] of Roder, and invites a jury to make findings in respect of charged acts, does not of itself amount to an error or irregularity, much less a miscarriage of justice. Where such a direction is given, the relevant question is “whether that direction considered as part of the summing up as a whole gave rise to a ‘real’ or ‘practical’ risk of ‘undermining the jury’s understanding of the necessity for proof of the elements of the [charged offence] beyond reasonable doubt’.” Only in that circumstance “would there be a material misdirection amounting to a miscarriage of justice”: at [11].
The respondent in The King v AR submitted that by inviting the jury to make findings concerning the charged conduct in order to determine whether the alleged tendency was established, the tendency direction in that case invited the jury to engage in reasoning of the kind that was supposedly disapproved of in JS and Roder: at [56]. The joint judgment rejected that submission, describing it as repeating the misconception of the nature of tendency reasoning that JS and Roder addressed. The “relevant point” was that it is the alleged tendency, not the evidence said to demonstrate its existence, that is relied on as circumstantial evidence in proof of the charged conduct. The trial judge’s direction in The King v AR correctly reflected that point: at [56].
At the same time, the joint judgment in The King v AR acknowledged that “the closer the correspondence between the alleged tendency and the charged conduct and the fewer the instances of charged conduct relied on to establish an alleged tendency, the greater the potential for a direction that invites the jury to make findings in respect of that conduct to a lesser standard in order to determine whether or not the alleged tendency was established to undermine the jury’s understanding of the necessity for proof of the elements of the charges beyond reasonable doubt”: at [58]. In Edelman J’s dissenting judgment, his Honour gave the following illustration of that potential:

Returning to the facts of the present case, and by way of recap, the charges were as follows:
In relation to LB, who was 15 years old at the time of the alleged offending conduct, the applicant was charged with: three counts of indecent assault of a person under 16 years (counts 1 to 3), and two counts of sexual intercourse with a child over the age of 14 years and under the age of 16 years (counts 4 and 5). The conduct the subject of counts 1 and 2 was alleged to have occurred on separate occasions, while the conduct the subject of counts 3 to 5 was alleged to have occurred in the course of one evening.
In relation to RP, who was between 9 and 11 years old at the time of the alleged offending conduct, the applicant was charged with maintaining an unlawful sexual relationship with a child (count 6). Three unlawful sexual acts were particularised as having occurred: indecent assault of a person under 16 years (the applicant touching the outside of RP’s genitals with his hand), sexual intercourse with a person under the age of 14 years under authority (the applicant digitally penetrating RP’s genitals), and sexual intercourse with a person under the age of 14 years under authority (the applicant penetrating RP’s genitals with his penis). As the trial judge noted in her reasons admitting the tendency evidence, RP was unable to particularise any specific incidents due to their regularity and because she tried not to think about it.
In relation to TB, who was 12 years old at the time of the alleged offending conduct, the applicant was charged with: three counts of intentionally sexually touching a child over the age of 10 years and under the age of 16 years (counts 7, 8 and 10), and one count of attempting to have sexual intercourse with a child over the age of 10 years and under the age of 16 years (count 9). Counts 7 to 9 were alleged to have occurred in the course of one incident, the duration of which TB estimated was approximately 10 minutes. Count 10 was alleged to have occurred on a different occasion.

The respondent served a tendency notice pursuant to s 97 of the Evidence Act, stating that the evidence in relation to each count for each complainant was cross-admissible in relation to each of the other counts for that complainant, on the basis of the following tendencies:
For LB, the applicant’s tendency “[t]o have a sexual interest in [LB] when she was 15 years old”; and “[t]o act on that sexual interest by sexually abusing [LB] when she was aged 15 years old”.
For RP, the applicant’s tendency “[t]o have a sexual interest in [RP] when she was aged 9 to 11 years old”; and “[t]o act on that sexual interest by committing unlawful sexual acts on [RP] when she was aged 9 to 11 years old”.
For TB, the applicant’s tendency “[t]o have a sexual interest in [TB] when she was aged 12 years old”; and “[t]o act on that sexual interest by sexually abusing [TB] when she was aged 12 years old”.
By the tendency notice, the respondent also advised that it sought to render each complainant’s evidence cross-admissible in relation to the counts on the indictment involving the other complainants, on the basis of the applicant’s tendency “[t]o have a sexual interest in girls under the age of 16”; and “[t]o act on that sexual interest by sexually abusing girls under the age of 16”.
For each complainant, then, the respondent relied on what the trial judge described to the jury as two separate categories of tendency evidence. For both categories, the respondent relied on the respective complainant’s evidence regarding the conduct of the applicant that was the subject of the charges. For LB, three of the five charged acts allegedly took place on the same evening, while for TB, three of the four charged acts allegedly took place in one incident. For RP, there was one charge, albeit requiring proof of maintaining an unlawful relationship that involved two or more unlawful sexual acts over a two-year period. Given the range of sexual offending in which the applicant was alleged to have engaged, the tendencies that the respondent advanced were not formulated by reference to the particular conduct the subject of the charges.
Relevantly, the respondent in The King v AR submitted that all of the evidence of the charged acts was admissible and available to be used by the jury in determining his guilt for reasons separate from the tendency evidence, for example to provide context for the complainant’s evidence. It followed, he submitted, that “any reliance on the evidence for tendency purposes added little to the Crown case especially as the evidence emanated from the same complainant”: at [54]. The joint judgment stated that this submission did not add to the contention that the direction undermined the standard of proof, in circumstances where there was no dispute that the evidence met the test in s 97(1)(b) of the Evidence Act and otherwise satisfied s 101(2): at [55].
As in The King v AR, there was no issue in the present case that for the purposes of s 97(1)(b) and s 101(2) of the Evidence Act, the statutory presumption in s 97A(2) of the Act applied, namely, that tendency evidence concerning a defendant’s sexual interest in children, and a tendency to act upon that interest, has significant probative value. The applicant’s trial counsel did not contend, pursuant to s 97A(4), that despite s 97A(2) the Court should determine that the tendency evidence did not have significant probative value. Nor did counsel seek to exclude the evidence pursuant to s 101 of the Evidence Act, or submit that ss 135 or 136 should operate to exclude or limit the use of the evidence.

Focusing on the emphasised sentence in the above passage, the applicant submitted that the trial judge impermissibly directed the ordering of the jury’s deliberations by instructing the jury that it had to consider the tendency directions before anything else, relying on Stanton v The Queen [2003] HCA 29; 198 ALR 41 at [35]. The applicant referred back to the direction extracted at [69] above and submitted that it gave the ordering of the jury’s deliberations undue prominence, such that the jury could only have understood the earlier directions to be subject to the later tendency direction. The applicant submitted that this had the real potential to undermine the other directions. The applicant also submitted that when the trial judge returned to the issue of tendency, her Honour effectively instructed the jury that it was required to undertake the tendency exercise before it deployed any of the other directions her Honour had given, or came to consider the elements of the offences.
It is the case that, when giving the earlier direction about the need to decide the verdict on each count on the evidence relevant to that count, her Honour foreshadowed returning to that concept in the context of a direction about tendency evidence. However, all that her Honour was doing at that point was flagging that the subsequent direction would operate as a specific qualification to the instruction that the verdict on each count was to be decided on the evidence relevant to that particular count. At the outset of the tendency direction, her Honour referred to what she had said earlier and sought to explain that the direction related to “the way the Crown argues that you can approach the evidence of [LB], [RP] and [TB]”.
Her Honour’s statement that she was directing the jury how to approach the evidence in its fact finding task “before” the jury came to consider the essential elements must be read with the two sentences that follow, in which her Honour stated that, by contrast with the essential elements, other facts do not have to be proved beyond reasonable doubt and, on that basis (“so”), the jury was to consider the tendency reasoning “before you come to the elements”. Rather than seeking to direct the jury as to the order in which it was to approach its deliberations generally, read in context her Honour was emphasising the distinction between tendency evidence, being an intermediate fact which does not require proof beyond reasonable doubt, and the essential elements of the offences, which must be proved beyond reasonable doubt. Her Honour’s direction to the jury that, if it was satisfied as to the tendency evidence, it “must reconsider the essential elements and be satisfied beyond reasonable doubt of those elements” (emphasis added), highlighted the ultimate task for the jury and, further, that acceptance of the tendency evidence was not sufficient for that purpose. Her Honour returned to both of those matters at the conclusion of the directions on tendency.
Later in the trial judge’s directions, her Honour elaborated upon the use of tendency evidence when explaining to the jury how the process of reasoning might apply. Before addressing that topic, however, her Honour identified “the alleged tendency”, summarising the respondent’s argument that there was evidence before the jury “which demonstrates a pattern of behaviour revealing that at the time of the conduct alleged in the counts on the indictment, the accused was a person with particular tendencies”. Addressing the first category of tendency evidence, “in respect of each complainant separately”, her Honour identified for the jury the tendencies that the respondent relied on for each of LB, RP and TB (see [63] above), and pointed out that in order to demonstrate the alleged tendency, the respondent relied on the conduct alleged in the respective counts for each of the complainants.
The trial judge then sought to explain to the jury how the process of reasoning might apply for the first category, again emphasising that tendency reasoning could be used as a qualification on the need to consider the counts on the indictment separately:

It is the case, as the applicant submitted, that in directing the jury as to the first matter of which it needed to be satisfied, the trial judge directed the jury to make findings that the alleged acts the subject of the charges occurred, having earlier directed the jury that a lesser standard of proof applied. In this respect, the direction did not conform to the terms of the direction that the Court in Roder said should be given. The respondent accepted this was the case.
The applicant submitted that this direction was given clear prominence as it was repeated several times. That may also be accepted. However, it does not follow, as the applicant further submitted, that any distinction in making findings at different stages in the analysis would have been lost on the jury. When addressing the second matter as to which the jury also needed to be satisfied (whether the established act or acts demonstrated the particular tendencies alleged), the trial judge made it clear that what the jury would ultimately be using was “the fact of the existence of the tendencies” in determining whether the Crown had proved that the applicant had committed the specific acts alleged on the indictment in respect of the particular complainant. As her Honour had stated at the beginning of the tendency directions, and, as will shortly be seen, at their conclusion, her Honour reminded the jury that this ultimate determination was one to which the standard of proof of beyond reasonable doubt applied.
The trial judge then gave a similarly worded direction in the context of the second category of tendency evidence which encompassed all of the complainants’ evidence, identifying the two relevant tendencies as a sexual interest in girls under the age of 16 and a tendency to act on the sexual interest by sexually abusing girls under the age of 16. Her Honour identified the conduct that the Crown relied on as “the evidence of the conduct of the accused that are the subject of the counts on the indictment”, namely, the conduct alleged in counts 1 to 5 as it related to LB, in count 6 as it related to RP, and in counts 7 to 10 as it related to TB. Her Honour then directed the jury as to how the process of reasoning applied (again, the emphasis in the passage below reflects the emphasis in the applicant’s written submissions):

Her Honour also gave the jury a Liberato direction (Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66) in orthodox terms. Then, at the conclusion of the directions, the trial judge returned to a document that her Honour had provided to the jury at the beginning of the trial, setting out the elements for each of the counts on the indictment (MFI 43). In taking the jury back through the detail of this 15-page document, her Honour emphasised that the Crown must prove the essential elements for each offence beyond reasonable doubt, and that each count must be considered separately, having regard to the particular evidence the Crown relied on to prove the offence alleged. Her Honour then went through each of the elements for each of the offences for the three complainants, stating on a number of occasions that it was these elements that the jury needed to be satisfied of beyond reasonable doubt.
The applicant submitted that the risk of the jury being deflected from its task in relation to the tendency directions was especially clear in the case of RP, noting that further directions were given after the jury had reached verdicts on eight of the ten charges, and in circumstances where the jury had requested clarification as to how to treat tendency in relation to count 6.
By way of background, the jury retired at 11.37am on 13 March 2024. As noted at [4] above, on the afternoon of 15 March 2024, the jury returned verdicts of not guilty on count 1 and guilty on counts 3, 4, 5, 7, 8, 9 and 10. When the jury resumed deliberating on 18 March 2024, it sent a note indicating that there was disagreement about the remaining two counts, counts 2 and 6, in response to which her Honour gave the jury a Black direction (Black v The Queen (1993) 179 CLR 44; [1993] HCA 71). The following day, 19 March 2024, the jury sent a further note that it could not reach an unanimous verdict on counts 2 and 6. After the foreperson gave sworn evidence in general terms about the state of the deliberations, the jury again retired. During a brief adjournment to allow the trial judge to consider whether to give a majority verdict direction, the jury sent a further note asking two questions:

The trial judge answered those questions on the morning of the following day, 20 March 2024. Relevantly for present purposes, before answering the first question, her Honour indicated to the applicant’s trial counsel and the respondent that she proposed to cleave to the directions she had already given, while also acceding to the request of the applicant’s trial counsel to add further detail from her closing address about the differences between the counts involving the three complainants. In responding to the jury’s questions, her Honour:
reminded the jury of the directions regarding the need to give separate consideration to each count on the indictment and, for count 6, the need to decide whether the Crown had proved the particular count on the basis only of the evidence directly relevant to that count and the complainant, RP;
reminded the jury that it could take tendency evidence into account in considering the honesty and essential accuracy of RP’s evidence on count 6;
reminded the jury that the Crown must prove the elements of count 6 beyond reasonable doubt, and that, once it had considered the issue of tendency reasoning, it must then “reconsider the elements in respect of Count 6 and determine whether you are satisfied beyond reasonable doubt of those elements”, further stating that her Honour was “directing you how you approach your fact-finding task before you come to consider the elements in terms of Count 6”;
repeated the two categories of tendency evidence on which the Crown relied, albeit referring to RP alone in the first category;
repeated the directions about how tendency reasoning must not be used, and its limitations; and
summarised the parties’ submissions on tendency, referring in some detail to the applicant’s trial counsel’s closing address in relation to the inconsistencies in RP’s account and the differences between the alleged offending across the three complainants.
When the summing up is viewed as a whole, the tendency directions did not deflect the jury from its task of determining whether each element of each offence had been proved beyond reasonable doubt. As the respondent submitted, the tendency directions specifically brought to the jury’s attention that: (i) in determining whether the tendency was established, it was not considering whether the conduct had been proven beyond reasonable doubt; (ii) to find the applicant guilty, the jury had to be satisfied of the elements beyond reasonable doubt; and (iii) that proof beyond reasonable doubt could not be established on the existence of the tendency alone. Further, consistently with the reasoning of the joint judgment in The King v AR at [56], the trial judge emphasised that it was the fact of the tendencies, if established, that was relied on as circumstantial evidence in proof of the charged conduct. Considered as part of the summing up as a whole, in which the trial judge highlighted, on multiple occasions, the need to consider each offence separately and devoted considerable attention to the elements of the offences that needed to be proved beyond reasonable doubt, the tendency directions did not result in a material miscarriage of justice. We reject ground 2.

In respect of all of the offences against this complainant, the sentencing judge noted that:
the complainant was living with the applicant at the time of the offending, and he was her foster father by way of formal arrangement. The offences committed, therefore, were an abuse of trust and an abuse of his authority;
the complainant was 12 years of age at the time the offences occurred, and was younger than the middle of the age range encompassed by the offences, with the exception of count 9;
the applicant was 47 years of age at the time the offences occurred, which made him substantially older than the complainant, by more than 30 years;
the offences were not isolated, and occurred in the context of the applicant continually harassing the complainant in a sexual manner – which included him making comments about her body, and touching her on the buttocks on many occasions; and
the offences occurred in the context of the applicant repeatedly attempting to bribe the complainant with electronic cigarettes and other things, to get her to do sexual things with him.
In respect of counts 7, 8 and 9, the sentencing judge found that the offending included some planning by the applicant, involved the use of his authority over the complainant, involved skin-to-skin contact (in respect of counts 7 and 8), and caused humiliation and significant discomfort to the complainant. Her Honour found that count 7 was a serious offence of its type, and well within the mid-range of seriousness of that type of offence. Her Honour found that count 8 was a relatively serious offence of its type, and just within the mid-range of seriousness. Her Honour also found that count 9 was a serious offence of its type, and just within the middle range of seriousness.
In respect of count 10, the sentencing judge found that the conduct was opportunistic in nature, as the applicant took the opportunity to commit it when he was alone with the complainant in the home. In light of that feature, her Honour found that this was a relatively serious offence of its type, but below the mid-range of seriousness for this type of offence.

The applicant described having experienced persistent anxiety, which could be moderate to severe in social settings, throughout much of his life. Aside from the period of depressed mood following the loss of his roofing job, the applicant also described a rapid and dramatic decline in his mental health upon learning of the allegations made against him in December 2020. The applicant described the immediate experience of prominent and persistent emotional and psychological distress and suicidal ideation, along with feelings of hopelessness and helplessness, which culminated in a suicide attempt. The applicant described the experience of suicidal ideation and the severely depressed mood state to have remained pervasive and enduring thereafter. Ms Watson expressed the opinion that the applicant’s account of his symptomology was first consistent with the diagnostic criteria of severe Major Depressive Disorder with anxiety and distress, and has since remained variable between moderate and severe following the prescription of anti-depressive medication.
At the time of the sentencing proceedings, Ms Watson opined that the applicant required urgent and intensive psychological and psychiatric support and treatment to address his mental health condition, particularly the recurrence of suicidal ideation. She stated that the applicant had not received any mental health support in custody, despite having made multiple requests to speak to a psychologist or a counsellor.
The sentencing judge accepted that the applicant had suffered symptoms of a major depressive disorder with anxiety and distress since his arrest. Her Honour noted that although there was no link between the applicant’s mental illness and the offending, as he was not suffering from such a mental illness at the time of his offending, the applicant’s mental health condition at the time of sentence did modestly temper the application of general deterrence. Her Honour also accepted and took into account that the applicant’s time in custody would be more onerous as a result of his mental health issues.

The applicant accepted that this was the most serious offence.
The applicant sought to rely on what was described as a degree of imprecision in the sentencing judge’s findings about the period over which the offending continued. It is difficult to see how this imprecision can or should operate in the applicant’s favour. Her Honour’s finding was that the offending occurred for a period of at least multiple months and that it occurred at the very least once per week (but less than three times per week).
The applicant asked the Court to take into account three decisions that were arguably comparable, but each of which involved offending that continued for a much longer period of time:
Massaquoi v R [2024] NSWCCA 125 (“Massaquoi”) (where a sentence of 16 years with a non-parole period of 10 years was imposed on an offender for an offence committed against a 12-14 year old complainant over 3 years): as the Crown submitted, Massaquoi involved a strong subjective case, including PTSD and a low risk of sexual recidivism. The applicant’s subjective case is significantly weaker in his favour.
JA v R [2024] NSWCCA 130 (“JA”) (where a sentence of 14 years and 6 months with a non-parole period of 11 years was indicated for an offence committed against an 8-15 year old complainant over 8 years): as the Crown submitted, this Court in JA did not address the offending or the subjective case of the offender. Little can be drawn from this case.
R v Idaho (a P**seudonym) [2025] NSWDC 427 (where a sentence of 16 years with a non-parole period of 11 years was imposed for an offence committed against a 5-14 year old complainant over a period of 9 years): we accept the Crown’s submission that the offending was markedly less serious and the subjective case much stronger in favour of Mr Idaho.
The sentences in these cases reflect the gravity of offending of this kind, and the particular abhorrence with which the law rightly treats offending of this kind, especially by a person in a position of trust. The maximum penalty is imprisonment for life. The applicant’s subjective case does not provide a basis for significant mitigation. The sentencing judge made (and we make) no finding of remorse on the part of the applicant. There is no insight on the part of the applicant as to his offending, and his prospects of rehabilitation are at best guarded. The sentencing judge’s assessment, which this Court adopts, is that the objective seriousness was above the mid-range.
Taking into account the circumstances of this case and the reasoning in the cases cited above, the Court nominates an indicative sentence of 13 years’ imprisonment for this offending.

BW v R

At a glance

Court

Decision date

Before

Catchwords

Catchwords

Judgment

Source

HEADNOTE

JUDGMENT

Circumstances of the offending

Counts 1–5: LB

Count 6: RP

Counts 7–10: TB

Ground 1: the verdicts of the jury on counts 2, 3 and 5 are not reasonable or not supported having regard to the evidence

Count 1 – indecent assault while wrestling

Count 2 – indecent assault at Kentlyn

Counts 3 and 5 – indecent assault and sexual intercourse at the Hermitage Hotel

Additional ground: a miscarriage of justice was occasioned by the failure of defence counsel to seek a directed verdict at the end of the complainant’s examination-in-chief in relation to counts 2 and 3

Ground 2: the directions to the jury on tendency evidence were contrary to the directions recommended by the High Court in Director of Public Prosecutions v Roder (a Pseudonym) (2024) 281 CLR 18; [2024] HCA 15 and caused a miscarriage of justice

Principles governing directions on tendency evidence

The tendency evidence and the trial judge’s directions on that evidence

The applicant’s alleged tendencies

The trial judge’s summing up and tendency directions

Findings below on sentence

Circumstances of the offending

The objective seriousness of the offending

LB (counts 4 and 5)

RP (count 6)

TB (counts 7, 8, 9 and 10)

The applicant’s subjective circumstances

Childhood

Education and employment

Relationships

Substance abuse

Attitude to offences

Mental health

Good character

Remorse

Prospects of rehabilitation

Onerous bail conditions and time in custody

Conduct of the trial

Delay

Further sentencing submissions on appeal

The applicant’s affidavit evidence

Submissions and considerations on appeal as to sentence

General

Counts 4 and 5

Count 6

Counts 7, 8, 9 and 10

Aggregate sentence

Parties

Legislation Cited (7)

Cases Cited (36)