Carter (a pseudonym) v R [2026] NSWCCA 43 | Case summary | Zoe

NSWNSWCCA

Carter (a pseudonym) v R

[2026] NSWCCA 43

Court of Criminal Appeal (NSW)|2026-04-24|Before: Wright J at [1] Fagan J at [189] Rigg J at [221]

View on NSW Caselaw

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2026-04-24

Before

Wright J at [1] Fagan J at [189] Rigg J at [221]

Catchwords

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — where account of the offending is said to have a somewhat incredible quality and be implausible — where evidence is said to be inconsistent and/or uncorroborated — where jury found applicant not guilty of sexual intercourse but guilty of sexual touching — where complainant is under the age of 10 — where inconsistencies are peripheral and can be explained — where jury were well placed to assess the truthfulness and reliability of the evidence —ground dismissed CRIME — Appeals — Appeal against conviction — Miscarriage of justice — tendency evidence — where directions to the jury on tendency evidence were not in accordance with preferred approach in Director of Public Prosecutions v Roder — where three charged acts relied on as proof tendency — where requisite standard of proof not mentioned in the tendency direction — The King v AR [2026] HCA 10 applied — where there is real a risk of the jury being deflected from its fundamental task — leave granted — ground upheld — retrial ordered CRIME — Appeals — Appeal against conviction — Taking into account irrelevant consideration —whether trial judge erred in considering the jury’s verdict in making findings of guilt regarding related offences on s 166 certificate — whether reasons were sufficient — ground 3 need not be delt with given upholding of ground 2

Catchwords

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — where account of the offending is said to have a somewhat incredible quality and be implausible — where evidence is said to be inconsistent and/or uncorroborated — where jury found applicant not guilty of sexual intercourse but guilty of sexual touching — where complainant is under the age of 10 — where inconsistencies are peripheral and can be explained — where jury were well placed to assess the truthfulness and reliability of the evidence —ground dismissed CRIME — Appeals — Appeal against conviction — Miscarriage of justice — tendency evidence — where directions to the jury on tendency evidence were not in accordance with preferred approach in Director of Public Prosecutions v Roder — where three charged acts relied on as proof tendency — where requisite standard of proof not mentioned in the tendency direction — The King v AR [2026] HCA 10 applied — where there is real a risk of the jury being deflected from its fundamental task — leave granted — ground upheld — retrial ordered CRIME — Appeals — Appeal against conviction — Taking into account irrelevant consideration —whether trial judge erred in considering the jury’s verdict in making findings of guilt regarding related offences on s 166 certificate — whether reasons were sufficient — ground 3 need not be delt with given upholding of ground 2

Judgment

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

Medium Neutral Citation: Carter (a pseudonym) v R [2026] NSWCCA 43

Hearing dates: 2 March 2026, supplementary written submissions closed 13 April 2026.

Date of orders: 24 April 2026.

Decision date: 24 April 2026

Before: Wright J at [1]
Fagan J at [189]
Rigg J at [221]

Decision: (1) The applicant is granted leave to appeal on grounds 1 and 2.
(2) The appeal is allowed.
(3) The applicant’s convictions on counts 2, 4 and 6 are quashed and a new trial is ordered.
(4) The applicant’s convictions on sequences 5, 7 and 9 are quashed and a new trial is ordered. (5) The matter is listed before the District Court at Dubbo for mention on 11 May 2026 at 9:15am.

The complainant was the first witness called and her evidence was given by way of:
Oral evidence on 30 April 2024;
The first Joint Investigation Response Team, or JIRT, recorded interview given on 28 October 2022, when the complainant was 9 years old; and
The second JIRT recorded interview on 29 February 2024, when she was 10.
After preliminary matters were addressed with the complainant in oral evidence, the first JIRT recorded interview was played. Initially, it was identified that the complainant wanted to talk about “some bad stuff” that the applicant had done. She was reluctant to say what the bad stuff was because she did not “really like to”. She identified when, and the house where, the bad stuff occurred. Her evidence was then that the bad stuff happened three times in the bathroom. She said that she told her mother about it, but she reiterated that she did not want to say what the applicant did in the bathroom.
The complainant then said that, in respect of the first incident, she was having a shower, she fell over while washing her feet and called out to her mother to come and help her wash her hair. The complainant then confirmed that her clothes were off. At this point, Q66 was as follows: “OK. Would you be able to put Teddy just his beanie out of your mouth so that we can hear your big voice?” to which there was no audible reply but Q 67 was “Thank you. ‘Cause what you have to say is really important, and I don’t want to miss any of it. OK”. The complainant’s evidence was then that the applicant came in and asked if she was okay to which she replied that she was and asked him to go out but he did not. The complainant when asked “then what happened?” once again said that she did not “want to say that part”. She identified, in effect, that her mother and brother may have been in or near the house at the time. When asked what the applicant did at that point she responded “[h]e didn’t he just stand there” but then was unwilling to say more. She indicated that the applicant was outside the shower and that she did not hurt herself when she fell over. She said that he was wearing his clothes at this time. The complainant then said the applicant’s hands touched her body but she was reluctant to say where. Eventually, she in effect said that the part touched was used for “going to the bathroom”. After further reluctance, the complainant was shown a diagram of a girl but it does not appear from the transcript of the interview at that point that the complainant identified by reference to the diagram where she was touched. Nonetheless, she said that the touching made her feel “sad” and “angry” because she “didn’t like it”. The complainant said that the applicant was inside the shower when the touching occurred, he was clothed and she was kicking him with her feet “to say, get out”. Throughout this part of the interview, the complainant was reluctant to say in words what occurred. At that point, a break was taken because the complainant was “looking pretty upset”.
After resuming the interview, the complainant offered to show what the applicant did using the diagram of the girl. She was then asked to put a circle on the area that she had pointed to but was initially reluctant to do so. At some point she drew a circle on the diagram. The complainant eventually described the area as the part used for going to the bathroom when “not doing a poo” and said that the applicant used his hand and “pushed down” with his “finger” or “fingers”. The complainant then recounted that she was kicking him and he pushed her on the wall and slapped her face with his hand. Her evidence then included that the applicant said “Mum won’t believe you” in a very angry voice, then he ran out and her mother came in. She said that she told her mother “that he did it” and her mother said she was “going to talk to him and see if he did”. The complainant was then asked what part of the “weeing part” the applicant touched and she said it was “the middle” and that “it hurt”. She also said that when she was kicking him he was holding her by the wrist really tight and it hurt. In response to the question “Did his fingers go inside or outside of your number one area?” She answered “In”. She also said that when he pushed her up against the wall it “banged her head” and that it “hurt”. The complainant said that the applicant slapped her because she said that she was “gunna tell mum on” him and he responded that “She won’t believe you, she would only believe me … ‘cause you’re a child”. After some apparently confusing answers, the complainant said in effect that when she fell in the shower was the first time this had happened.
The questioning then turned to the last occasion on which the complainant said the applicant “did some bad stuff” to her and she said that on this occasion he did not bang her on the wall or hit her face. The complainant described the third occasion as occurring at night when she was in the shower washing her body with her clothes off. Her brother and mother were home but she did not know where they were. Her description of what occurred on the third time was:

The complainant then said that she was probably recorded a couple of times by her stepmother but was not sure whether or not she had been recorded on more than one occasion whilst in the car. That in effect brought the playing of the recording of the second JIRT interview to an end.
Oral examination in chief of the complainant then continued and she was asked questions about the conversation with the stepmother in the car when the cake was delivered and the later conversation in the bedroom. She said that the conversation in the bedroom was “the true conversation” and that the applicant did touch her. The complainant explained again that when she was in the car with her stepmother she “was scared that the judge wouldn’t believe [her], and [the stepmother] said that [she] could go to kids jail and there’s no way that [the stepmother] could get [her] out” and this was why she told her stepmother on that occasion that the applicant did not touch her.
In oral cross examination, the complainant was asked questions concerning the bathroom including about the doors and windows. Next, the complainant’s evidence was that she spoke to a police officer referred to as Mel about what happened, and then to her mother, but that her mother did not believe her. She also spoke to her stepmother. She did not recall if she spoke to one grandmother but confirmed she did speak to the other grandmother about it, as well as to her aunt.
The complainant was asked questions about her first JIRT interview and a confusing answer she had given in respect of a threat to scream. She also confirmed that the applicant ran out of the bathroom on each of the three occasions and then her mother came in. When asked what she meant by saying that “he did it”, she replied “he did touch me” and that she told her mother that on each of the three occasions but she did not believe her. After a break, the cross examination returned to the conversation in the car when the cake was delivered. The complainant recalled talking to her stepmother about the applicant and that she was upset and scared because she thought she had to go to “kids’ jail” as a result of what her stepmother said. The complainant’s evidence was that her stepmother said to her that she was lying about the applicant touching her. The complainant denied lying when she said that the applicant touched her.
The cross examination turned to other conversation - involving the complainant and her stepmother, her grandmother and her aunt - about the applicant but the complainant was either unclear as to what was being asked or was generally not able to remember but she did say that she has spoken to her grandmother and her aunt about the applicant touching her and her father may have been present as well. When it was put to the complainant that the applicant never came into the bathroom when she was having a shower, she answered that he did do it. When it was put that the applicant never “touched [her] thing”, she answered, “No, because he has touched me …”. These answers were confirmed by her saying that those propositions put to her were wrong and she also said it was wrong to say that the applicant had never pushed her in the shower.
In re-examination, the complainant confirmed that she had spoken about the applicant to her aunt and to her grandmother and to her stepmother. She had spoken about it to her stepmother more than once and “[w]hen [she] first told everyone” was before the conversation with her stepmother in the car when the cake was delivered. The complainant’s evidence then concluded.
The complainant’s father then gave evidence by audio-visual link. He gave evidence of his relationship with the complainant’s mother, their separation and the shared parenting and living arrangements relating to the complainant. He also gave evidence of his subsequent relationship with the person referred to as the complainant’s stepmother. Eventually, the complainant came to live with her father and stepmother on 30 June 2022 and she has remained living with her father since that time.
The father’s evidence was that at a family birthday celebration on 6 October 2022, the stepmother communicated to him and the complainant’s aunt that in a counselling appointment the complainant attended, she had disclosed that she was sexually touched by the applicant. He tried to have a conversation with the complainant but she only answered in short words and said that she did not want to say anything. He said that “DoCS” and child abuse authorities were contacted on about 6, 7 or 8 October 2022 and he was contacted by police.
The father gave evidence that by late 2023, he and the stepmother were having relationship difficulties. In January 2024, the stepmother raised with him whether the complainant was lying about “the whole situation”. He said to leave it to the lawyers to work out but the stepmother pursued it. The father received a telephone call asking him to attend the complainant’s counselling appointment. The father attended and found the counsellor talking to the complainant in the car. The stepmother was outside with her mother and the stepmother was “nervous, fiddling, twitching and then shocked”. The father recounted that after they got home, he and the stepmother asked the complainant questions, but she was “really upset” and not her “normal self”. His evidence was also that the stepmother told him about her conversation with the complainant in which she said that she had not been touched by the applicant and he added that:

The father also said that the stepmother had recorded that conversation with the complainant on her phone and had sent a copy of the recording to him but he had not touched it and did not have it on his phone anymore. He said that towards the end of January he and the stepmother had separated.
In cross examination, the father gave evidence of a conversation involving him, the stepmother the counsellor and the complainant in which the stepmother said she believed that the complainant had been making it all up. The father also said that the stepmother was attempting to say that the complainant was lying and was afraid to own up and said to the complainant that she would get in trouble if she was lying. The father accepted that the stepmother was always supportive of the complainant and said she treated her like her own daughter.
After some evidence concerning the shared parenting arrangements in relation to the complainant, the father gave evidence of a conversation with the complainant, the stepmother, the grandmother and the aunt concerning the applicant “back in July”. The father accepted that in that conversation the complainant was asked whether the applicant touched her private parts and she said no but he also said that everything was very raw for the complainant at that time when the situation had been discovered. He did not believe that that conversation had been recorded. That in effect concluded the father’s evidence.
The next witness was the complainant’s aunt. She was asked questions about a conversation at the complainant’s father’s and stepmother’s house at which the complainant, her stepmother, her grandmother and her aunt were present. The aunt’s evidence was that when the complainant was asked whether anyone had touched her private parts “she turned around and faced the wall and clammed up”. The aunt was pretty sure this conversation occurred around June “because [the complainant] was going to be going back after school holidays, but she didn’t want to return to her mother’s”.
The evidence then turned to a conversation on 6 October 2022 involving the complainant, her stepmother, her grandmother and her aunt during which the aunt said that the complainant told them:

Next the aunt was asked questions concerning the fact that in her statement she said that the complainant said that the applicant put his fingers “on her wee wee” rather than “in”. The aunt acknowledged that this was so but said that “it was meant to be [‘]in[‘]. I didn’t realise.” The aunt then agreed that she had difficulties with her memory and did not have a good memory but nonetheless did not accept that she might be mistaken about what the complainant had said. That concluded the aunt’s evidence.
The next witness was the complainant’s grandmother. She agreed that in 2022 she became aware that the complainant had come to live permanently with her son, the complainant’s father, and his then wife, her stepmother, after the June-July school holidays. The grandmother gave evidence of a conversation in her son and his wife’s bedroom, which involved the complainant’s stepmother and aunt, when the complainant had been crying and said that she did not want to return to live with her mother. The grandmother agreed that in that conversation she asked the complainant if she had been touched in her private parts and said in response to the question whether the complainant replied: “She sort of went just all shy and cried and just wouldn’t say anything.” The grandmother said that the complainant did not give any indication at that stage on that day whether the touching of her private parts had occurred at all.
The evidence then turned to the conversation on 6 October 2022 when the grandmother, the aunt and the stepmother spoke to the complainant who was “very, very upset”. The grandmother’s evidence was that the complainant said that she had been touched by the applicant in the shower. When asked “whereabouts… on your boob?”, the grandmother said that the complainant said “no, on my vagina”. When the grandmother was questioned on whether the complainant herself used that word vagina, the grandmother said the complainant said “[m]y private parts” and pointed to it and told her that the applicant had used his fingers to touch her and it had occurred “a few times”.
The grandmother then gave evidence of a separate conversation with the complainant when she was alone with her at the grandmother’s house and “it had come on the TV about a child who was molested” and the complainant said “yes… Nan, that’s what happened to me” and then she told her grandmother about it and she used the word “vagina” at that time. The grandmother identified that conversation as occurring earlier in 2024 and gave more detail of what the complainant had told her occurred and information as to where her mother and brother might have been at the time. The grandmother said that she had never met the applicant and had not spoken to the complainant’s mother since the complainant came to live with her son.
In cross examination, the grandmother was asked about the first conversation she had had with the complainant and her aunt and whether the complainant was asked if she had been touched in the private part and said no to which the grandmother responded:

After reading a paragraph of her statement, the grandmother agreed that there was a conversation in which the complainant was asked whether she had been touched in the private part and she answered no.
The grandmother was then asked questions about the paragraph in her statement in which she said that the complainant told her that her mother was outside mowing the lawn on one of the times that the applicant touched her. This was different from the grandmother’s evidence that the complainant had said she did not know if her mother was mowing or was getting clothes off the line at the relevant time or times. The grandmother accepted that “maybe” she did recall what had been said in that regard incorrectly, but rejected the possibility that she could have been mistaken as to the complainant using the word “vagina”.
Next, the complainant’s stepmother gave evidence. Initially she gave evidence concerning her relationship with the complainant’s father and the family and living arrangements concerning the complainant at relevant times.
The stepmother’s evidence next concerned a conversation in August 2022. On that occasion, there was a conversation in her bedroom with the complainant, her, the complainant’s grandmother and aunt about things that happened with the applicant. The stepmother agreed that during that conversation she asked the complainant if the applicant had ever touched her private parts and the complainant said that he had not.
The stepmother also agreed that she had taken the complainant to be interviewed by police on 28 October 2022 and in the car ride afterwards the complainant stated that she had told the police officer about the complainant “sexually assaulting” her when he let himself into the bathroom, that it happened three times but she did not go into detail except stating that he “grabbed one of her arms and… hit her in the face or something” and that “he pushed down” on what the complainant referred to as her “private part”. The complainant also told her that she “yelled out” and pushed the applicant back and said that she would “tell her mum and that he stated that [she] wouldn’t believe her”. The stepmother said that the complainant did not go into detail about the second or third time, she simply said that the same thing had happened three times. The stepmother said that that day she had only ever met the applicant once when she did a drop-off of the children at Sandy Hollow. The stepmother denied that there was a conversation involving her, the complainant’s aunt and grandmother prior to 28 October 2022 in which the complainant had disclosed sexual activity by the applicant.
The stepmother’s evidence then turned to the conversation in the car with the complainant when the cake was delivered in January 2024. Her evidence was that the complainant was just sitting there “happily delivering the cake” with her and chatting to her in general but she became upset because the stepmother asked her why her “behaviour had changed” and “what she was doing” to the family at home to which she said the complainant replied that “everyone would think she was a liar”. In response to the stepmother’s question whether it had something to do with the complainant’s mother and the applicant, the complainant said, yes. The stepmother’s evidence as to the conversation was then:

The stepmother denied that she had suggested or mentioned any consequences to the complainant or had said anything about going to “kids’ jail”.
The stepmother’s evidence was that later that same day she met up with the complainant’s father and grandmother. It was also said that the complainant was calmer that evening. The stepmother said that she had lain with the complainant on the bed because she had asked for some “me and mum time”. The stepmother’s evidence was then that the complainant asked if she could tell the stepmother something, and said to her that she had lied again and when asked what she meant she said “I lied, [the applicant] did do it”. The stepmother agreed that, on the father’s instruction, she had a further conversation about the applicant with the complainant and in the course of that conversation the complainant said that the applicant had touched her sexually on the vagina. The stepmother then said that the complainant told her that the applicant had grabbed her by the throat, had punched her and had “pushed down on her vagina”.
The stepmother accepted in substance that she was aware, prior to the complainant’s police interview, that the complainant was alleging that the applicant had sexually touched her but denied that there had been a conversation with the complainant and her aunt and grandmother about that subject matter before 28 October 2022 and that the complainant had described what she said occurred when the applicant came into the shower and referred to her vagina as her “wee-wee” and that it hurt. The stepmother also denied suggesting to the complainant that, if she was lying and the judge thought she was lying there would be consequences including being sent to “kids jail” and she denied ever using that expression.
In cross examination, the stepmother was asked questions clarifying her understanding of what was said in the conversation in the car when the cake was delivered, relating to the complainant responding “what’s the opposite word to no” when the stepmother asked if the complainant had “made up the story about [the applicant] touching your vagina?”. She acknowledged that there had been quite a few conversations “about all of this” between the complainant’s father, her, the complainant and the complainant’s aunt and grandmother. The stepmother also agreed that it was sometimes a little difficult to put them all in order because there have been quite a few of them. The stepmother agreed that there was a conversation in August between herself, the complainant and the complainant’s grandmother and aunt in which the complainant said that the applicant had not “ever touched her in her private part”.
The next witness was the complainant’s maternal grandmother , who gave short evidence as to the family circumstances of her daughter and the complainant and who was not cross examined.
Evidence was then called from the owner of the property on which the cottage in which the complainant lived with her mother, her mother’s son and the applicant was located. This evidence went to relevant dates on which the complainant’s mother was employed by the owner and when she lived on the property. The evidence included video recordings of the cottage and in particular the bathroom. The owner was also not cross examined.
The complainant’s mother was called by the Crown, and gave evidence, including in relation to her family circumstances, employment, her relationship with the applicant and her moving into the cottage in March 2022 with the complainant, her son and the applicant. The complainant’s mother also gave evidence as to the bathroom in the cottage and the doors and locks. The complainant’s mother described the family routine of preparing dinner and showering in the evening, and that “usually” the children would shower while she made dinner. Her evidence included that she would assist the complainant with washing her hair when she had a shower but she didn’t wash her hair every night, and the complainant showered with the bathroom doors closed.
The complainant’s mother said that the complainant would call out to her to help wash her hair or to turn the water off because sometimes she could not “do the taps, or just didn’t want to”. She also said that if the complainant had called out from the bathroom she would have heard it everywhere in the house. The complainant’s mother denied that it would ever be appropriate for the applicant to have entered the bathroom when the complainant was taking a shower and said she never recalled any occasion on which the applicant had done so. When the mother was cross examined by the prosecution by leave granted under s 38(1)(a) of the Evidence Act 1995 (NSW), she disagreed that the complainant ever said anything to her about the applicant entering the shower or touching her or her vagina while she was showering. The complainant’s mother also disagreed that she ever said she would raise with the applicant anything about his conduct towards the complainant in relation to the shower at any time. She also disagreed that she said to the complainant that she disbelieved her because the applicant had previously denied “doing this”, as well as disagreeing with other similar propositions relating to the offending. The complainant’s mother was not cross examined by counsel for the applicant at trial.
The final witness was the officer in charge of the investigation. Her evidence included that she was allocated the investigation in October 2022 after a call received from the complainant’s father containing disclosures of alleged sexual assault. She gave evidence of steps taken in the investigation including the electronically recorded interview with suspected person or ERISP given by the applicant. The officer in charge also gave evidence that the applicant had never been charged with any type of sexual offence.
The recording of the ERISP was played in court. The applicant gave background information concerning his relationship with the complainant’s mother and family arrangements and accommodation. When asked if he had ever been alone with the complainant, the applicant recalled one time when she came to work with him because she had an infection in her leg and could not go to school as well as “a couple hours here [and], a couple hours there… picking them up from school or taking them somewhere”. When it was disclosed that the complainant had spoken to police about “what’s been happening to her at home”, the applicant immediately asked who was in the room with her at the time of her speaking to police. When told that it was only the officer in charge, the applicant went on to mention the complainant’s father stating that “[h]e’s only got to give her one look and she’ll say whatever she thinks she has to say … to make him happy” and that he is “a very manipulative person”. The applicant explained why he held these views. When what the complainant said occurred on the first occasion was put to the applicant, he said:

The applicant submitted that, having regard to the whole of the evidence, the verdicts of guilty in respect of ground 2, 4 and 6 were unreasonable on a number of bases.
First, the applicant contended that the complainant’s account of the offending had a “somewhat incredible quality” and was implausible. This was said to arise in circumstances where the touching was not furtive but was said to involve physical assaults when the complainant’s mother was in close proximity to the bathroom, the complainant called out to her, and the mother entered shortly after the applicant had run out because he had heard her coming. It was further contended that if the offending had occurred as the complainant said, she would have been “on the floor of the shower, crying and in pain from being thrown to the floor, when her mother came in”. The applicant also relied on the contention that, if what the complainant said was correct, it was unlikely that she did not slip when she kicked the applicant, the applicant’s clothing was dry, and there was no injury from or complaint about landing on her head. It was also said that the account of kicking the applicant’s face was “likely telling of fabrication”.
Secondly, the applicant relied on the fact that the complainant’s evidence of detailed complaints to her mother was entirely uncorroborated by her mother. It was noted that it was not put to the mother that she tailored her evidence to assist the applicant nor, it was said, did this appear to be the case.
Thirdly, it was contended that the complainant’s evidence of being sent to bed without dinner and her brother being locked in his room had a “distinctly embellished quality”.
Fourthly, the applicant submitted that the complainant’s evidence was internally inconsistent. This is said to include her description of the applicant using his fingers to “push down” on her vagina despite saying at another time that she did not understand that expression, her inability to recall whether the applicant was standing, kneeling or sitting at the time of the incidents because it was “a little while ago”, and inconsistencies as to what occurred with her mother and when it occurred, in relation to some of the incidents.
Fifthly, the applicant relied on inconsistencies in the complaint evidence. It was submitted that there were differences between the accounts given to the aunt, grandmother and stepmother as to matters including the frequency of the abuse, the complainant’s response including whether she defended herself or screamed and whether the applicant hit her, grabbed her throat or punched her.
Sixthly, it was submitted that the complaint witnesses did not assist the prosecution in that:
The complainant’s mother denied that she made any complaints to her;
The stepmother, grandmother, aunt and father each gave evidence that the complainant had said, “no”, when asked whether she had been touched by the applicant on her private parts in a conversation at which the witness was present.
Seventhly, the stepmother gave evidence of a conversation in the car with the complainant in which “the complainant said that she had made up the story about the complaint” and afterwards it was “like a weight had been lifted off her”. Although the complainant said that the conversation about going to kids’ gaol occurred in the car at about that time, it was submitted in effect that the stepmother’s denial of suggesting that the complainant could go to gaol for lying should be accepted given that she had no reason to lie about what occurred and had a close relationship with the complainant. Counsel for the applicant characterised her account of the conversation as not “fanciful” and noted in oral submissions that it has the “ring of truth to it”.
Finally, the applicant raised the inconsistency between the verdicts of not guilty on counts 1, 3 and 5 and the convictions on counts 2, 4 and 6 and contended in effect that this established that the verdicts in respect of the latter counts were unreasonable. The applicant did not, however, rely on this as a separate ground of appeal. It was submitted that the jury’s not guilty verdicts demonstrated doubt as to the complainant’s credibility. It was contended that the not guilty verdicts could not be explained only by reference to ambiguity in the complainant’s evidence as to penetration because, ultimately, her evidence was that the applicant’s fingers were “inside” and “hurt”.
It was submitted that on the whole of the evidence, the Court would be left in a state of disquiet about each conviction and consequently the appeal should be allowed, the convictions quashed and acquittal entered on each of counts 2, 4 and 6.

The respondent submitted that none of the applicant’s arguments established that it was not open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt.
As to the alleged implausibility of the complainant’s evidence, the respondent noted that the near presence of the mother and the risk of detection did not of itself render the evidence implausible, as explained in various authorities such as Sita v R [2022] NSWCCA 90 and Bolton v R [2023] NSWCCA 211. Furthermore, it was said that it could not be assumed that the mother would have intervened had she been aware, especially in light of the complainant’s evidence of her mother’s and the applicant’s reactions on various occasions.
The other matters and circumstances relied on by the applicant to establish the implausibility of the complainant’s evidence were submitted to involve mischaracterisation of the evidence or speculation as to what might have occurred which was not the subject of cross examination.
In relation to the mother’s evidence, the respondent submitted that it was not such as to give rise to a reasonable doubt, particularly where the alleged disclosures were put to the mother and the jury was aware of, and able to assess, the conflict in the evidence. Further, the complainant’s evidence of being sent to bed without dinner and the position of her brother, were said not to be implausible. The respondent contended that the complainant’s account bore the hallmarks of “authenticity and truthfulness” and was consistent with a lived experience, not fabrication.
As to the asserted internal inconsistencies in the complainant’s evidence, the respondent submitted that, when understood in context of the complainant’s age and given the particular nature of the questioning, they were either not inconsistent or were insignificant. In particular, it was submitted that there was no ambiguity in the complainant’s description of the applicant “pushing down” or the particular part of the body involved. Other matters said by the applicant to be inconsistencies were rather explained by occasional challenges in communication and her inability to recall peripheral detail. The matters concerning the mother’s whereabouts which were contended to be inconsistent were said either to involve inaccurate accounts of the evidence or not to involve any significant inconsistency. And, any inconsistencies were to be considered in light of the complainant’s age and the intervals between the events, the interview and the evidence.
In respect of the complaint evidence, the respondent submits that it supported, rather than undermined, the Crown case. The complainant’s denial, on one occasion, that she had been sexually touched is said to be explicable by her age and the circumstances in which she was questioned, including her youth, the presence of multiple adults and the context of discussions about “living arrangements”. The respondent referred to various statements of principle in relation to complaint evidence in child sexual assault cases in support of its position.
Furthermore, the complaint witnesses were submitted by the respondent to have been consistent in their accounts that the complainant disclosed that the applicant had touched her vagina in the shower on multiple occasions. To the extent of any inconsistency in other respects, it was submitted that the jury was in a position to assess the evidence and was entitled to accept the complainant’s account.
More specifically in relation to the conversation in the car at the time of the cake delivery in which the complainant indicated that the applicant had not touched her sexually, it was submitted that, in all the circumstances relating to the stepmother and her deteriorating relationships with the complainant and with the complainant’s father at the time, it was open to the jury to conclude that there were aspects of the stepmother’s account that lacked credibility and that those aspects of her evidence should be rejected. This was said to be so in relation to the stepmother’s account contrary to the complainant’s evidence of being told by the stepmother about going to kids’ gaol for telling lies and the possibility of the applicant being killed if he went to gaol and other inmates found out what he had done. On the complainant’s evidence this led her to say no when she should have said yes because she was scared the judge would not believe her. Assessing these matters were said to be well within the province of the jury as the tribunal of fact.
As to the contention that the not guilty verdicts on the sexual intercourse counts suggest that the jury had real doubts about the complainant’s credibility, the respondent submitted that those verdicts were readily explicable by the limitations in the complainant’s evidence concerning penetration. The respondent drew attention to particular aspects of that evidence including the complainant’s apparent unwillingness to describe the precise location of the touching and the aunt’s acknowledgement that in her statement she had said that the complainant referred to being touched “on” rather than “in” her vagina. It was noted that the applicant’s closing address to the jury included that the evidence on penetration lacked the “precision and clarity that you would need to be satisfied on reasonable doubt”.
Finally, the respondent submitted that the jury had the ability to assess all the witnesses and the evidence in order to resolve the significance of the matters raised by the applicant. It was contended that none of those matters raised should have caused the jury to entertain a reasonable doubt nor are they such as to cause this Court to entertain a doubt that the jury ought to have had.

There was essentially no dispute between the parties as to the principles applicable in considering an unreasonable verdict ground of appeal such as ground 1. It is therefore sufficient to note that some of the principles have been recently summarised in Zhang v The King (No 4) [2026] NSWCCA 8 at [52] – [53](Kirk JA with Wright and Cavanagh JJ agreeing) and in Al-Sheikh v R [2025] NSWCCA 205 at [172]-[175] (Bell CJ, Kirk JA, Sweeney J). The principles were said to include those set out below.
The issue raised by the unreasonable verdict challenge is “whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 (Dansie) at [8]; M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63 (M). The question is “one of fact which the court must decide by making its own independent assessment of the evidence”: M at 492, quoted in Dansie at [8].
That assessment is undertaken in a context in which an appeal is as much of an adversarial process as the criminal trial from which the appeal is brought and in which it is for the parties to identify the evidence that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal: The King v ZT (2025) 281 CLR 137; [2025] HCA 9 at [11].
In resolving the question of fact, “the burden of persuasion that appellate interference is required, in what is otherwise the jury’s province, is upon the person who impugns a jury’s verdict”: MacKenzie v The Queen (1996) 190 CLR 348 at 370; [1996] HCA 35 (MacKenzie).
In considering whether the jury’s verdict was unreasonable, “the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”: M at 493, quoted in Dansie at [9]. This is particularly so since “a jury has a further advantage in assessing the facts, namely that it involves the assessment of 12 people drawn randomly from the community, seeking to achieve a unanimous verdict, who bring to bear a diverse range of human experience, understanding and judgment in assessing the testimony they have heard”: Lee v R [2023] NSWCCA 203 at [29]; (2023) 310 A Crim R 170.
In addition, in a case such as the present where the Court is considering a ground that verdicts of guilty in relation to charges concerning sexual abuse were unreasonable or cannot be supported having regard to the evidence, the Court proceeds on the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). The Court then examines the record to see whether, notwithstanding that assessment, either by reason of inconsistencies, discrepancies, or other inadequacy or in light of other evidence, the Court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt: Pell at [39].
As to the applicable principles relating to whether verdicts are inconsistent so as to establish that they are unreasonable, or cannot be supported on the evidence, they have been summarised in PT v R [2025] NSWCCA 163 at [57]-[63] (Wright J, with Weinstein and Sweeney JJ agreeing) and include those set out below.
Where factual inconsistency of the type relied on in this case is raised, the test is one of logic and reasonableness: MacKenzie at 366 (Gaudron, Gummow and Kirby JJ).
In addressing a ground raising unreasonable verdicts on the basis of inconsistent verdicts, the enquiry is whether there exists any rational explanation for the acquittals rather than the convictions, other than doubts about the complainant’s credibility: TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [130] (Simpson J with McClellan CJ at CL and Latham J agreeing); Davis v R [2024] NSWCCA 120 at [121] (Adamson JA, with Price AJA and Garling J agreeing).
If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted and if there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury: MacKenzie at 367.
A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach by the jury to the discharge of its heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 (MFA) at [34] (McHugh, Gummow and Kirby JJ).

More specifically concerning the complainant’s interactions with her mother, the complainant’s evidence as to her mother’s responses on the first and later occasions indicated that after making enquiries of the applicant the mother did not believe the complainant. If that evidence was accepted, it would not be at all implausible that the applicant was prepared to engage in such conduct when the mother was in the vicinity and tell the complainant she would not be believed, as the complainant said in her evidence.
In addition, in these circumstances, the fact that the complainant’s evidence of detailed complaints to her mother were entirely uncorroborated by her mother does not necessarily tell against the credibility of the complainant. Lack of corroboration by the mother does not lead to the conclusion that the complainant’s evidence rather than the mother’s evidence was unreliable. It is true that the mother was not cross examined as to whether she fabricated her evidence to assist the applicant. This, however, was understandable in that she was called by the prosecution and the leave given to cross examine her under s 38(1)(a) of the Evidence Act was effectively limited to putting to the witness “that on three separate occasions, the complainant said to her that the accused had done something”. [1] The absence of cross examination as to fabrication of her evidence does not establish that the mother’s evidence should be accepted in preference to the complainant’s. The jury, having seen the witnesses and heard all the evidence, would have been in a position to make a properly informed assessment in relation to the evidence of the complainant and her mother in that regard, as well as in relation to the other bases on which the complainant’s evidence was challenged as implausible.
As to the complainant’s evidence of being sent to bed without dinner when her mother was annoyed with her, ordinary human experience indicates that this type of recollection by a young child is not inherently incredible nor does it, without more, display a “distinctly embellished quality”. Her evidence of her brother being locked in his room was qualified by a subsequent answer which indicated that he might have been outside and the complainant did not know which was correct. These examples relied on by the applicant did not, in my view, necessarily undermine the complainant’s credibility and the jury would have been in a position to make a proper assessment in that regard.
The applicant next relied on asserted inconsistencies in the complainant’s evidence. The first such inconsistency was said to be that the complainant on more than one occasion said that the applicant “pushed down” on her vagina but then said that she did not understand what “push down” meant. When regard is had to all the circumstances, I do not accept that this was an inconsistency or, if it were, that it was significant.
The relevant questions and answers relied on by the applicant were said to be Q307 to Q311 and Q343 to Q345 which were as follows:

These questions and answers once again provided a more careful and precise explanation of what the complainant said occurred. In their context, the questions and answers at Q343 to Q345, like the questions and answers at Q307 to Q311, were more suggestive of tiredness or stress, and perhaps also a degree of modesty or confusion, rather than untruthfulness or unreliability. The confusion may have arisen because at Q343, the complainant was asked “How did his fingers push down?” whereas at Q344, she was asked “Well, you’re saying that his hand pushed down, can you show me how his hand pushed down?” notwithstanding that in answer to Q342 she had made clear that it was “[n]ot his hand” but “his fingers”.
In any event, the jury who saw the first JIRT interview, all the witnesses and all the other evidence was well placed to assess the truthfulness and reliability of the complainant’s evidence, compared to that of the mother and the applicant, and whether this led to a reasonable doubt as to the applicant’s guilt.
For these reasons, I do not accept that the questions and answers relied on by the applicant established any sufficient basis for a reasonable doubt as to the complainant’s credibility or that, even if such a doubt arose, the jury was not in a position to resolve whether this amounted to a reasonable doubt as to the applicant’s guilt having regard to the evidence as a whole.
Nor do I accept that the complainant’s being unable to recall whether the applicant was standing, kneeling or sitting at the time of the incidents because it was a little while ago or any inconsistencies in her evidence as to her mother’s actions, locations and comments at various times, when viewed in the context of her age and times when she gave evidence and the evidence as a whole, establish a sufficient basis for a reasonable doubt. Moreover, even if those matters did provide a basis for having a doubt about the applicant’s guilt this was the type of doubt which the jury was well placed to resolve having seen and heard all the evidence.
Next the applicant relied on what were said to be inconsistencies in the complaints made by the complainant, based on the evidence of various extended family members. These included:
the aunt’s evidence that the complainant said the applicant touched the complainant in the shower “pretty much every time she ha[d] a shower” and that the complainant “would sit down in the bottom of the shower, and she’d be crying, and her mum would come in and say, ‘hurry up and get out’”;
the grandmother’s evidence that the complainant told her that “she tried to push away, and she fell to the ground to huddle up and he hit her in the shower” and when asked “why didn’t you scream?” the complainant said, “Because he hit me” and that he was hitting her all the time;
the stepmother’s evidence that the complainant said that the applicant had “grabbed her by the throat” and punched her and she had pushed back and yelled out.
One issue with this evidence at the outset is that it could only tell against the credibility of the complainant or lead to a reasonable doubt about the applicant’s guilt if the witnesses’ recollections of what the complainant said were accepted as accurate not only in relation to the general subject matter but also in relation to the details relied on by the applicant. At the level of general subject matter, the evidence of the family members concerning the complainant’s disclosures of being abused supported the case against the applicant and I do not accept the submission that the complaint witnesses did not assist the respondent’s case at all.
More specifically, making an assessment in regard to the reliability of the details recollected by the family witnesses and whether this should have led to there being a reasonable doubt as to guilt in light of all the evidence was, however, a matter for the jury and it was well placed to make such an assessment. On my review of the evidence, the inconsistencies identified by the applicant in submissions did not lead me to conclude that the jury must have experienced a reasonable doubt as to the applicant’s guilt in light of those inconsistencies.
Similarly, the fact that the complainant’s mother denied that the complainant had made any complaints to her about the applicant’s conduct did not lead me to the conclusion that there must have been a reasonable doubt as to the applicant’s guilt, for reasons similar to those given above in relation to the mother’s evidence. In addition, consideration of these circumstances and whether they gave rise to a reasonable doubt as to guilt were matters which the jury was well placed to assess in light of the evidence as a whole.
The same reasoning and conclusion apply in relation to the complainant’s conversation with the stepmother, aunt and grandmother in which she “clammed up” and indicated in some way that she had not been touched by the applicant on her private parts. The same can also be said for the further submission in respect of the implicit denial of being touched during the conversation in the car with the stepmother when the cake was being delivered. As to that occasion, the complainant gave an explanation of being scared because of what had been said to her about lying and possibly going to “kids’ gaol” if the judge did not believe her and what might happen to the applicant if he went to gaol. She indicated that this was the reason why, during the conversation in the car, she effectively denied being touched. While I accept that this material might give rise to a doubt about the complainant’s credibility and the applicant’s guilt, these were doubts which the jury was well placed to resolve in light of seeing and hearing all of the evidence.
The final matter relied on by the applicant was the fact that the jury had returned verdicts of not guilty in respect of the principal, sexual intercourse charges in counts 1, 3 and 5. These were said to establish that the jury had real doubts as to the credibility of the complainant and they could not be explained by reference to ambiguities in the evidence as to whether or not penetration had occurred. This was said to be so because “ultimately” the complainant had said that the applicant’s fingers went “inside” and it “hurt”.
I do not accept the applicant’s submissions in relation to the not guilty verdicts. In my view the acquittals were well able to be explained by the uncertainty of the complainant’s evidence as to whether there was any penetration of her vagina. The complainant was consistent in her description that the applicant “pushed down” with his fingers in the area circled on Ex 1, which was the complainant’s vulva, which she also described in various ways such as “my thing” or the “middle part” of the circled area. The expression “pushed down” is more consistent with external rather than internal pressure being applied in the region of the vagina.
At one point, the complainant’s evidence in the first JIRT interview was:

The complainant’s evidence in answer to Q279 and Q333 was that the “pushing down” occurred on “top” rather than “inside”, although it was noted in the latter answer that this caused it to hurt inside. It was the question at Q340 which included the assumption that the fingers did something “on the inside” and the complainant responded to the effect that the fingers “pushed down … on it”.
The jury were instructed that “sexual intercourse” for the purposes of counts 1, 3 and 5 included “the penetration to any extent of the female genitalia by any part of the body of another person”.
Given the difference between the answers to Q202 and to Q279 and Q333 and the description of the action as “pushing down”, one rational and obvious explanation for the jury’s not guilty verdicts in respect of the sexual intercourse counts is that they entertained a reasonable doubt as to whether the applicant’s fingers penetrated the complainant’s vagina rather than just pushing down on top of, but outside, the vagina. This explanation does not rest on significant doubts about the complainant’s credibility but rather on the uncertainty inherent in parts of her evidence, pertinent extracts of which have been quoted. There is thus a proper way in which the verdicts in the present case may be reconciled which supports the conclusion that the jury performed their functions as required. In short, the verdicts of not guilty on the sexual intercourse counts did not establish that the verdicts of guilty of the sexual touching counts were unreasonable or could not be supported on the evidence.
Therefore, on my independent review of the whole of the evidence bearing in mind the matters raised by the applicant, I was of the view that it was well open to the jury to be satisfied beyond reasonable doubt that the accused was guilty in respect of the sexual touching charges. Any significant doubts that may have arisen as a result of the matters relied on by the applicant were within the province of the jury and capable of being resolved by them having had the benefit of seeing and hearing all the evidence in the matter. In short, in this case there were no matters which meant that the jury must (as opposed to may) have entertained a reasonable doubt as to the guilt of the applicant.
For all of these reasons, I would reject the first ground of appeal. Nonetheless since the ground was arguable and fully argued, I would grant leave to appeal on this ground but would not uphold the appeal on that basis.

The applicant noted that the principles concerning the application of Roder in cases similar to the present had been considered in a number of recent decisions of this Court and were not anticipated to be in any real dispute. The applicant submitted that the real issue was the application of those principles and whether the trial judge’s directions to the jury in respect of the tendency evidence deflected or diverted the jury from its task of determining whether the Crown had proved the elements of each charged act beyond reasonable doubt.
It was accepted that not every direction contrary to the approach referred to in Roder would be productive of a miscarriage of justice and it was submitted that whether there was a miscarriage would depend on a consideration of the summing up as a whole in the context of the trial.
It was submitted that the directions to the jury in the present case exemplified the difficulty identified in New v R [2025] NSWCCA 32 at [276], and were contrary to the approach endorsed in Roder, in that they required the jury to make anterior findings in relation to the charged conduct when determining whether they were satisfied of the alleged tendencies. This was said to have resulted in a circular reasoning process. The applicant identified aspects of the summing up which were submitted to have encouraged such circular reasoning, including those which made it difficult for the jury to keep distinct their findings in respect of tendency from the ultimate determination of guilt required in respect of each count, particularly where the tendency evidence comprised the very conduct the subject of the charges. In particular, attention was drawn to passages in the summing up where the Crown case was outlined and the directions concerning the drawing of inferences were given as supporting the applicant’s case.
The applicant also submitted that the other directions as to the burden and standard of proof were not able to cure the problem because of the timing, content and structure of the directions. The critical directions were given early in the summing up, before the luncheon adjournment, as part of the “general directions”, rather than in the course of the specific directions on tendency evidence. It was submitted that this, together with the repeated references to tendency evidence and to “other evidence” when directing the jury as to proofs on which the Crown relied, accentuated the difficulties.
On the basis of the summing up as a whole, it was submitted that the Court should find that there was a realistic possibility that the tendency directions deflected the jury from its ultimate task and thus the appeal should be allowed.

The respondent submitted that although the tendency direction did not accord with Roder, the summing up as a whole in the context of the trial ensured that the jury was not deflected from its fundamental task.
As to the context in which the summing up was given, the Crown drew attention to the fact that the applicant did not oppose the tendency evidence being admitted and referred to the opening addresses. It was then noted that all of the requests for additional directions sought by the applicant were acceded to and there was no request for any revision to, or qualification of, the tendency direction given by the trial judge. The respondent also contended that the solicitor advocate for the prosecution at trial emphasised in his address the onus and standard of proof and similar matters and touched on the tendency evidence albeit briefly. It was observed that at the end of the solicitor advocate’s address, counsel for the applicant sought certain corrections or clarifications but made no complaint about the submissions in relation to tendency evidence. It was also noted that counsel for the applicant did not refer to the issue of tendency evidence in his closing address but did remind the jury of the onus and standard of proof.
The respondent observed that the summing up included standard directions, including as to the onus and standard of proof, directions specific to the circumstances of the trial and summaries of the addresses on behalf of the parties. It was acknowledged that the tendency direction did not comply with the guidance provided by Roder at [37] but submitted that there will be no misdirection if the summing up as a whole ensured that the jury would not have been deflected from its task of deciding whether the charges were proved beyond reasonable doubt.
It was further submitted that the tendency direction did not encourage circular reasoning. Nor was there any impermissible circularity inherent in what was being asked of the jury, as it was orthodox for a jury to use all the evidence, including charged acts, to infer a tendency at a lower threshold and then rely on that tendency as circumstantial evidence in proving the offences beyond reasonable doubt.
The Crown submitted that any risk of the jury being deflected arising from the tendency direction was cured by the following aspects of that direction itself:
the invitation to make anterior findings was found in two discrete passages and not repeated;
it was made clear that the tendency was an intermediate fact to be considered in its own right;
the jury was directed to exercise caution in relation to tendency evidence with reference to the inference direction;
the jury was reminded to consider with respect to each charge separately whether the applicant acted with the alleged tendency;
the jury was directed that the tendency could not, by itself, establish the applicant’s guilt of any charge; and
the jury was directed to consider whether the specific offences were proved on the basis of the relevant evidence, including the tendency as a separate piece of proof, but only if satisfied that the tendency existed.
Additionally, it was submitted that the risk of undermining the required standard of proof associated with the parts of the tendency direction which in effect invited the jury to make findings as to whether the alleged conduct occurred before deciding whether the tendency was proved were eliminated in the present case by: the directions as to the onus and standard of proof; the separate consideration of each count; the careful drawing of inferences; the Markuleski direction, the direction concerning the cross examination of a child, the direction concerning acceptance of the complainant’s evidence and the requirement to be satisfied beyond reasonable doubt that she told the truth; and the motive to lie direction. It was noted that some of the directions were also provided in writing.
The respondent submitted that the timing of the various parts of the summing up did not justify the conclusion that relevant parts were divorced from one another. In addition, it was contended in effect that comments from other cases were of little assistance as each had to be considered on its own merits.
Finally, it was submitted that no redirection was sought by the applicant in relation to tendency evidence and this was a further indication that, in the context of the trial, there was no perception of a miscarriage of justice because of the tendency direction.
The respondent expressly accepted that, if this ground were made out, any irregularity would be material in the sense explained in Brawn v The King [2025] HCA 20; 99 ALJR 872. In addition, the Crown’s written submissions did not address the proviso in s 6 of the Criminal Appeal Act as required by par 19 of Practice Note No SC-CCA1, Court of Criminal Appeal – General, if the proviso was sought to be relied on. Nor was the operation of the proviso addressed in oral submissions.

The applicant sought to distinguish the present case from AR in three ways. First, it was submitted that the applicant’s case as a whole was not one that was “saturated with directions to the jury of the necessity to be satisfied of [the] elements beyond reasonable doubt”: AR at [59]. Secondly, it was submitted that unlike in AR, as noted by the plurality judgment at [32], the jury was not reminded that it was necessary for the Crown to prove the specific offences beyond reasonable doubt. In addition, the applicant submitted that unlike in AR, the jury was not reminded that to the extent it was considering the occasions on which offences were alleged to have occurred for the purposes of determining whether the tendency was established, the standard was not beyond reasonable doubt, referring to AR at [30].
The Crown submissions reiterated that, as held relevantly in AR, it was not inconsistent with the nature of tendency evidence to frame a tendency identically to the charged conducted, and rely on the same evidence to establish such a tendency.
The Crown submitted that a number of factors to which the majority of the High Court gave weight in determining that there was no real risk that the jury’s understanding of the necessity of proving each element beyond reasonable doubt would be undermined, were also present “in a large degree” in the tendency direction and summing up in this matter. These were submitted to include matters raised by the plurality in AR such as the jury being appropriately directed as to how tendency, if established, could be used and being directed that proof of a tendency was not sufficient to prove the applicant’s guilt of a charge. In addition, attention was drawn to the trial judge’s numerous references to the onus and standard of proof at various stages of the summing up, including before and after the tendency direction, as well as in the context of the elements of the offences, as had also been the case in AR.
In reply to the applicant’s submissions, the Crown characterised the assertion that the onus and standard of proof were only stated a handful of times as inaccurate. It submitted that in this sense that there was no practical distinction between this case, and the saturation of references to the standard of proof referred to above at [146]: AR at [59].
The Crown also cautioned against reliance on Edelman J’s proposed direction set out at [161] in AR given he was writing in dissent and it was said that the direction applied to a very narrow context.

It can be seen that the trial judge directed the jury to engage in the form of reasoning which might lead a jury to be deflected from its fundamental task of determining guilt beyond reasonable doubt in that the jury was directed:
first “to consider the evidence relating to this alleged conduct of the accused and decide whether in fact, he did conduct himself in the way the Crown alleges” and to “consider all of the evidence and decide what conduct you are satisfied of”; and
then, “[i]f you decide that all, or at least some, of the conduct occurred, you then need to consider whether it enables the inference to be drawn that the accused had the tendency the Crown alleges” to engage in the charged acts; and,
then, “[i]f you find the accused did have the tendency alleged by the Crown, then you can use that in considering whether it is more likely he committed the specific offences with which he has been charged. However, it is essential you consider in relation to each charge, whether the accused acted with the particular tendency asserted by the Crown on that specific occasion.”
The tendency direction included a direction to the jury first, that they would need to “decide whether in fact, [the applicant] did conduct himself in the way the Crown alleges” and later that “[u]ltimately, you must decide whether the specific offences with which the accused has been charged have been proved”. In substance both of those exercises involved the jury deciding the same factual issue. Nonetheless, in making the first decision the jury was not required to be satisfied beyond reasonable doubt that the applicant engaged in the charged acts but they were required to be satisfied beyond reasonable doubt in making the second decision: AR at [8]-[9]. This difference was not, however, explained to the jury in the present case. Most significantly, there was no direction that when the jury was “ultimately” deciding whether the specific offences were proved they were required to be satisfied of that matter beyond reasonable doubt.
A possible form of direction which could have been included in the tendency direction in the present case in order to minimise the risk of undermining of the standard of proof was given by Edelman J in AR at [161] as follows:

That direction did not, however, indicate that when drawing the ultimate inference as to the guilt of the applicant or an inference as to an essential element of a charge against him, the standard of proof beyond reasonable doubt required that the jury be satisfied that the inference was not only “a rational inference” but also that it is “the only reasonably available inference”.
Thus, in the present case, the risk of the standard of proof being undermined was significantly heightened by the absence of a direction that drew attention to the standard of proof required when relying on tendency reasoning in reaching an ultimate determination of guilt and by the absence of some form of direction as to what inferences could support a finding of guilt beyond reasonable doubt.
In addition, there was another aspect of the reliance on tendency evidence in the present case which exacerbated the risk of the standard of proof being undermined. The Crown’s tendency notice dated 23 April 2024 identified the asserted tendencies as being “[the applicant’s] tendency to have a sexual interest in a female child under the age of ten years, the complainant …, and to act upon that sexual interest.” It can be observed that there was no specific identification of any types of action which were said to amount to acting upon the sexual interest. This might have led to an objection based on such a non-specific tendency lacking significant probative value in relation to proof of the particular charged acts. [4] As it happened, no objection was taken to the form of the notice or to the admission of the tendency evidence. Nonetheless, the trial proceeded on the basis that the asserted tendencies were “to have a sexual interest in a female child under the age of ten years, namely the complainant … and to behave in a particular way, namely, to act upon that sexual interest by engaging in the sexual acts alleged against him”, as the trial judge stated in the first paragraph of her tendency direction quoted above at [157]. Rather than describing the general nature of acts that the applicant was said to have a tendency to engage in, [5] in the present case the tendency was said in effect to be to engage in the charged acts. Specifying the asserted tendency in this way meant that the jury could not consider whether the tendency evidence established the asserted tendency without antecedent consideration of whether that evidence established the charged acts. In these circumstances, even if the form of tendency direction suggested in Roder at [37] were given, it would be less likely to have the intended ameliorative effect of not undermining the standard of proof. The jury could not in the present case just consider whether the tendency evidence established the asserted tendency rather than considering whether the charged acts were first established and then considering whether the tendency was established.
Similarly, the fact that the asserted tendency was based on the evidence of only one complainant in relation to a small number of incidents, each of which was the subject of one of the counts on the indictment, also tended to increase the likelihood of the standard of proof being undermined and the jury being deflected from its fundamental duty in the present case. As was held by Gageler CJ, Gleeson and Beech-Jones JJ in AR at [58]:

Otherwise, it can be accepted that the summing up was replete with references to the onus and standard of proof and the need for separate consideration of each count. Furthermore, directions such as those concerning the elements of the offences, the written directions, the Markuleski direction, the direction concerning the cross examination of a child, the direction concerning acceptance of the complainant’s evidence and the requirement to be satisfied that she told the truth, the motive to lie direction, the Liberato direction and others gave specific emphasis to the need for proof beyond reasonable doubt and what that entailed in the particular circumstances of this case. The fundamental difficulty was that the force of these directions relating to proof beyond reasonable doubt tended to be neutered or, at least, substantially reduced when the jury was considering tendency reasoning and inferences in that regard. This was the result of the absence of directions relating to the ultimately required standard of proof beyond reasonable doubt and what that entailed when considering the tendency evidence, the form of the asserted tendency relied on and the direct correspondence between the charged acts and the asserted tendency which was to be established on the evidence of only one complainant.
No redirection was sought by the applicant in relation to tendency evidence and this could be seen as an indication that, in the context of the trial, there was no perception of a miscarriage of justice because of the tendency direction. It does not appear, however, that the nature of the problem identified in Roder and the approach suggested in that case, which had only been handed down some few weeks before the trial, was something that the participants in the trial were aware of or brought to her Honour’s attention. As a result, the failure to seek a redirection in this regard does not tell significantly in favour of the conclusion that there was no significant miscarriage in the present case.
In summary, if the jury accepted to an unspecified standard of proof that the charged acts were “proved facts” for the purposes of considering drawing an inference as to whether the asserted tendency to engage in those very acts was proved, also to an unspecified standard, there was a risk in this case that the jury would accept without further or sufficient consideration of the standard of proof that the charges relating to those acts had been proved because of their earlier findings. There was a significant likelihood of this risk coming to fruition in the present case because there was no mention in the tendency direction of the standard of proof required to be met at any particular stage of the tendency reasoning, nor was there a direction reminding the jury that before the applicant could ultimately be found guilty relying on tendency reasoning and inferences it was still necessary for the jury to be satisfied that the specific offences charged were each proved beyond reasonable doubt, and the form of, and limited evidence relied on to establish, the asserted tendency encouraged or permitted reasoning in this way.
For these reasons, in the particular circumstances of the present case which differ in material respects from those in AR and notwithstanding the directions otherwise given by the trial judge, the tendency direction and the inferences direction in this case 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 offences beyond reasonable doubt. Such a risk of the jury being deflected from its fundamental task of deciding guilt beyond reasonable doubt arose out of a material misdirection. This amounted to a miscarriage of justice, which the Crown accepted was material or substantial.
The fact that there was no complaint made at trial concerning the tendency direction was perhaps explicable on the basis that the trial occurred only shortly after the High Court’s judgment in Roder was delivered. In any event, since a substantial miscarriage of justice has been occasioned by the form of the directions, leave to appeal should be granted under r 4.15 of the Supreme Court (Criminal Appeal) Rules and under s 5(1)(b) of the Criminal Appeal Act.
For the reasons given above, the second ground has been made out. Accordingly, leave should be granted to appeal on ground 2 and the appeal should be allowed. In these circumstances, it is appropriate to quash the convictions on counts 2, 4 and 6 and to order a new trial.

The sequence of deliberations is significant. Logically, the jury would first consider the evidence of charged acts as it bore upon the question of tendency, applying an indeterminate standard of proof. Their consideration of the same evidence as proof of the same charged acts as elements of the respective counts would come later, when the standard of beyond reasonable doubt should be applied. It is a very tall order to expect that a jury would not allow their earlier determination on the charged conduct to compromise their application of the criminal standard of proof at the second stage. Without disparagement of the reasoning capacity of jurors, I consider it unrealistic to expect that a jury could faithfully exercise the intellectual discipline required to “consider the same evidence ‘at different stages of its deliberations with a different [standard] of proof and for a different purpose’”, without subliminally finding the conduct charged on each count sufficiently proved as “a foregone conclusion” from the earlier deliberation on tendency.
I digress to note that this strain upon reasoning capacity is brought about by the Crown’s pursuit of a tendency argument in circumstances where it could add nothing, in practical terms, to proof of the charges. The difficulty for the trial judge formulating directions and for the jury implementing them would be avoided in the retrial of the applicant – and in future cases – by objection being taken to the use of evidence of charged conduct to prove tendency, invoking ss 101(2), 135 and 136 of the Evidence Act, as considered below, and by the tendency use being disallowed.
Putting aside scepticism about whether the exercise could ever be truly performed by a jury, I consider that in the present case rigorous application of the standard of proof beyond reasonable doubt at the second stage could not have been achieved through anything short of a full explanation to the jury of the difficult process of reasoning required of them, drawing their attention to the absence of any specific standard of proof for their deliberations on tendency and the need for caution against allowing their findings at that stage to compromise the criminal standard of proof when later revisiting the evidence of the applicant’s conduct as proof of each charge. In the summing up under consideration there was no direct explanation to the jury of the complex exercise in reasoning and disciplined thinking that they were expected to perform.
The situation could not have been improved if the trial judge had refrained from instructing the jury to decide whether the applicant performed all or any of the charged acts as a basis for determining whether the tendency could be inferred. Withholding that instruction would have further suppressed recognition by the jury that the tendency aspect of the case required them to decide twice over, to different standards, the critical contested question: Did the applicant do what the complainant alleged?. Integrity in the subsequent application of proof beyond reasonable doubt could not have been enhanced by shielding the jury from appreciation of the tension in reasoning that the Crown’s formulation of the case imposed upon them.
In Gilbert v The Queen [2000] HCA 15 Gleeson CJ and Gummow J said this at [13]:

I agree with what Wright J has written with respect to ground 3 and have nothing to add.
RIGG J: I have had the considerable advantage of reading the draft judgments of Wright J and Fagan J, including Wright J’s detailed analysis of the evidence, course of proceedings, submissions of the parties and relevant legal principles. I agree with the orders proposed by his Honour.
As to ground 1, having undertaken my own assessment of the evidence, I have concluded that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt. I agree with Wright J’s analysis of the arguments advanced on the applicant’s behalf to the contrary.
I agree with the reasons given by Wright J for upholding ground 2. I also agree with a number of the observations of Fagan J.
The risk of undermining the jury’s understanding of the necessity for proof beyond reasonable doubt of the elements of the charged offences by relying on tendency reasoning was acute in this case because of the evidence coming from one witness, alleging a small number of offences committed in virtually identical circumstances, and the tendency the subject of judicial direction being a tendency to do the charged acts. These problems were very similar to those present in AR. The majority of the High Court found that non-compliance with Roder in AR did not give rise to a miscarriage of justice.
Differently from AR, the tendency direction in this case did not include within it direction which reinforced to the jury the contrast between the task it was undertaking in considering the alleged tendency and its ultimate task in considering the same evidence in proof of guilt. There were four ways in which this was done within the tendency direction in AR that were regarded as important by Gageler CJ, Gleeson and Beech-Jones JJ: see factors [2], [6], [7] and [8] quoted at [26] in their Honours’ joint judgment, and the references to these at [30], [31], [32] and [59].
As Wright J has explained at [162], the numerous directions elsewhere in the summing up in this case could not in the same way as in AR make more effective the references to the standard of proof in the tendency direction. Nor was there in this case direction of the kind suggested by Edelman J in AR at [161] quoted by Wright J at [160], nor that nominated by Fagan J at [209] and in the last sentence of [213], either of which could have assisted in minimising the risk of the use of tendency reasoning deflecting the jury from its core task.
Further, as Wright J has outlined at [163]-[164], the cross-reference within the tendency direction to the direction on inferences which had immediately preceded the tendency direction highlighted the path to finding fact D (the tendency) proved by determining whether facts A, B and C (the charged acts) were proved. Although the tendency direction in AR did make reference to the inferences direction already given, it was not suggested to have immediately preceded it. Here, the inferences direction itself included the statement that such direction would have particular relevance to considering the tendency evidence: see above at [163].
In a case such as the present, there is a difficult contrast between the preferred approach outlined in Roder, and the orthodox method of drawing inferences, for the reasons outlined by Fagan J at [199]-[200] and [203]. However I would not go so far as to find, as Fagan J has at [210], that the situation could not have been improved if the trial judge had refrained from instructing the jury to decide whether the applicant performed all or any of the charged acts as a basis for determining whether the tendency could be inferred. The applicant’s second ground of appeal is predicated upon failure to direct in accordance with Roder. Compliance with Roder, as well as the other protective mechanisms outlined in this judgment, could all have helped reduce the relevant risk.
The determination in upholding ground 2 that this risk was not sufficiently minimised in this case to prevent a miscarriage of justice is not a determination that the absent risk minimisation mechanisms could if employed in this case have helped enough; nor one that there is good reason, in a case such as this, for the risk being taken at all. There are real concerns as to these issues in this particular case, including for the reasons outlined by Fagan J at [206]-[208] and [215]-[217]. However in the absence of a ground of appeal relating to the use of the evidence of the charged acts for tendency purposes and full argument on the issue, I do not express a concluded view on these matters.
As to ground 3, I agree with Wright J’s manner of resolution outlined at [185]-[186]. On its face, her Honour’s reliance on the jury verdicts appears erroneous. However the written submissions provided by the parties at first instance on the determination of the applicant’s guilt of these charges were not included in the material on appeal. Her Honour’s reasons, quoted by Wright J, make clear that the Crown had relied upon the jury’s verdicts to warrant acceptance of the complainant’s evidence in support of the applicant’s guilt of the related offences. It is not clear from the material before the Court whether any issue was taken with this as a matter of principle on the applicant’s behalf, and in these circumstances I do not regard it as possible to determine the adequacy of her Honour’s reasons.

Carter (a pseudonym) v R

At a glance

Court

Decision date

Before

Catchwords

Catchwords

Judgment

Source

HEADNOTE

As to issue (i)

As to issue (ii)

Per Fagan J

As to issue (iii)

As to issue (iv)

JUDGMENT

Procedural background

The appeal

Ground 1

The evidence at trial

Applicant’s submissions on ground 1

Respondent’s submissions

Consideration

Principles

Assessment as a result of the review of the evidence

Ground 2

Applicant’s submissions

Respondent’s submissions

Further submissions made by leave as a result of the delivery of the High Court’s judgment in AR.

Consideration

Ground 3

Proposed orders

Ground 2 – misdirection on tendency

Ground 1 – unreasonable verdict

Ground 3 – conviction of the common assaults determined under s 166

Endnotes

Parties

Legislation Cited (9)

Cases Cited (33)