Rassi v R

First communication from the jury that a problem had arisen

1. The following day, Thursday 10 February 2022, the trial Judge received a communication from the jury through the court officer that one juror had received a copy of the judgment on the admissibility of Dr Goodman-Delahunty's evidence. The court officer informed the trial Judge and confirmed verbally in court that "only that juror read it and that juror did not discuss it with anyone else".
2. The trial Judge, with the agreement of counsel, determined that the individual juror should be discharged but that her Honour should first question the juror as to whether any of the remaining jurors had seen or read the document.

The juror's evidence

1. The juror was affirmed and gave the following evidence: "Q. Thank you, Mr Juror, please take a seat. Mr Juror, this morning the court officer spoke with me and told me that you had found a document in your folder. Could you just have a look at this document that's marked MFI 18. Is that the document that you found in your folder? A. Yes. Q. Is it the case that you had an opportunity to read through that document? A. Yes. Q. Did you discuss that document or the contents of that document with any other juror? A. I discussed it but not to the degree of specifics. So it's the just the general gist of, how detailed can I go? Q. As detailed-- A. Okay, so - Q. Actually, just pause for a moment. A. Sure. Q. We're not meant to be aware of any discussions about the evidence that are occurring with the jury. So just in relation to this if you can limit it to what you said about the document. So we'll start with did you let any other juror read it? A. No. They only read the first page. Q. So they just saw the cover sheet? A. Yes, as far as I know. Q. Did you hand the document to anyone else? A. I did because I didn't realise that anyone else had it or didn't have it. Q. So you handed it to them and people saw the front sheet? A. Yes. Q. Do you know how many other jurors saw the front sheet? A. Not the specific number, but some people did. Q. Other than seeing the front sheet, no other jurors saw inside the document? A. I cannot recall. Q. Did you have then discussions with one or more of the jurors about the contents? A. Yes. Q. Can you remember what you disclosed about what you had read? A. May I go into specifics? Q. Yes. A. I discussed that it was just essentially a document that describing the, a back and forth of the barrister and the Crown and the judge, and that's as specific as I went. So I didn't go into specifics of why it was the, the reasons of this particular paper. Q. Thank you, Mr Juror. You have done exactly what is a juror should do. You became aware that you had a document. You were concerned as to whether you should have it or not and you therefore sought out to raise it with the court officer. So you have done everything that the Court would expect a juror to do. The difficulty is that you should not have had the document and you have now read through the document. There is a concern then that you are privy to or you've been exposed to material that goes beyond what's in this trial. So there is therefore a concern about you remaining in the jury. A. Mm-hmm. Q. Accordingly, I am discharging you from remaining in the jury. A. Okay. Q. Which means you won't go back to the jury room. You will no longer be part of this jury. So thank you very much for your commitment and your attendance throughout the trial and your obvious dedication and integrity in raising the matter in the way that you did. Thank you. A. Thank you."
2. This evidence was not consistent with the initial indication to the court officer that the document had not been discussed with other jurors. Further, the juror initially gave evidence that no other juror had read the document, saying "they only read the first page". However, when pressed as to whether any other juror saw "inside the document", he said, "I cannot recall."

Discharge of the individual juror and polling of the remaining jurors

1. The juror was discharged. It is worth repeating the explanation the Judge provided to the juror: "There is a concern then that you are privy to or you've been exposed to material that goes beyond what's in this trial."
2. That decision, which involved the discretionary discharge of the individual juror pursuant to s 53B of the Jury Act 1977 (NSW), was correct.
3. Before the juror gave evidence, the trial Judge expressed the opinion that: "If the juror were to give responses consistent with what has been indicated informally to the court officer then that juror would be discharged but we would be in a position to continue with the 11. So that's what I'm contemplating subject to any further submissions."
4. That approach was also correct at the time it was indicated. However, as has been seen, the juror's responses were not consistent with the information apparently provided to the court officer.
5. The parties then acquiesced with a process whereby certain questions would be addressed to the remaining jurors who would be invited to respond separately to those questions in writing. While there was some criticism of this process in the appellant's written submissions, it was accepted at the hearing of the appeal that the procedure was open to the trial Judge. Accordingly, it is unnecessary to enter a discourse as to the various provisions of the Jury Act, and the powers of a trial judge at common law, to obtain information from the jury as to the extent to which the contents of the document had been discussed, seen or read by the other jurors. It is worth noting in passing that there are certain procedures provided for in the Jury Act which are, or may be, mandatory in certain circumstances. [1] However, the Jury Act does not purport to provide the only methods by which a trial judge can obtain information necessary for the proper discharge of their function to maintain the integrity of the trial.
6. The remaining 11 jurors were brought into the courtroom and her Honour addressed them as follows: "HER HONOUR: Good morning members of the jury. I apologise for the delay this morning but the Court has been attending to a matter that arose. You would see that you are currently sitting as a jury of 11. One of your jurors brought to the attention of the court officer who brought it to my attention that he had access to a document in his folder that he felt he should not have had access to, and very properly he brought it to the attention of the court officer and that's what we've been dealing with. It is of course imperative that we know what you have access to because, as you would remember, I had said to you earlier you don't go off and make any inquiries or endeavour to ascertain anything else about this matter because the parties need to know on what basis you are determining your ultimate verdicts. At this stage I am going to set a task for each of you. I'm going to ask that each of you write a note to me, so not a collective note from the jury, but that each of you write a note because each of you may have different responses that you are going to provide to me. Don't tell me your name, just whatever your juror identification is, just so that we know who the author of each note is. I'm going to ask my associate, who is a very fast typist, to take down what I'm saying and then she'll print that out and provide that to you. But I'm just going to give you an indication of what I am asking you to do. I want each of you to give me a response of: Did you see the document that the juror had? That's the first one. If you saw it, what did you see? Did you read any part of the document? Was there any discussion about the document, and if there was discussion what was it? The final one is do any of you have any document in your folder that you shouldn't have? As you know, you should only be having access to copies of the exhibits or the MFI indictment. They're the questions that I am posing that I ask you each to give your individual response. It is only limited to the discussion about the document. I don't want you to divulge anything about any discussions that you're having about the evidence generally, because that is sacrosanct. Anything that occurs between the jury is something that remains between the jury and you should not be divulging it where it is a consideration of the evidence in the trial. So it's just focused, and very much focused, on that document. Some of you may not have had any involvement, in which case you probably have no idea what I'm talking about, but if anyone did have involvement then they no doubt do know what I'm talking about. Clearly if you had no involvement your responses are going to be far briefer. If you did have some involvement, if you can just attend to detailing as best you can your response. Please don't discuss this amongst yourselves when you go out. I'm sure some of you will go out and say what was all that about? That's fine. You're entitled to make a comment, but please don't start engaging in a conversation about it. We just at this stage want you all to attend to your own knowledge, keep that confined, write your own note, and then I will review the notes that you write. Hopefully you all understand what I'm asking for. As I've said, my associate will provide that note to go out to you. I'll just make sure that the parties approve of the note and it will be sent out to you and we will send out a copy for each of you so you're not sharing it, and you will be able to probably write on that note what your responses are. Just be patient, it will come out to you soon, and that explains why there's been a delay this morning."
7. As anticipated by this direction, each juror was then provided with a questionnaire, and each wrote out their responses which were marked for identification (MFI 19). The following table sets out the individual responses to the five questions directed to the jurors: JUROR JUROR RESPONSE Question 1: Did you see the document that the juror had? Juror A Yes Juror B Yes Juror C No Juror D Only from across the opposite side of the room when it was held up Juror E Yes Juror F Yes Juror G I only saw the document from afar as it was placed on the table Juror H I saw it Juror J No Juror L Yes Juror M Yes Question 2: If you saw it, what did you see? Juror A Paper on table Juror B Title page. 1st page of text. That there were multiple pages Juror C No Juror D Was too far away. Could see it was multiple pages Juror E Front page saying Court Process List of Matters Juror F There was a crest on the document and it had a date (front page) Juror G I only saw the A4 sheet on the table, but saw no writing or content. I couldn't even see the title or anything, just the A4 paper laying there. Juror H The cote of arm [sic: coat] Juror J Didn't see at all Juror L That it had 22 paragraphs (from memory) and thus was not the same as the expert witness document Juror M I saw the document at a distance of approx. 3m away - on the table Question 3: Did you read any part of the document? Juror A No Juror B Scanned title page, seeing mentioned of previous case made of March 4 Scanned 1st page seeing roman numeral numbering and word expert Juror C No Juror D No Juror E I flipped through the pages but did not read + cannot recall any detail Juror F I saw the date and the crest and confirmed that I did not have the document in my folder. Juror G No Juror H No Juror J No Juror L No (other than paragraph numbers) Juror M No Question 4: Was there any discussion about the document, and if there was discussion, what was it? Juror A Told document dated February and stated court procedure Juror B There was discussion on the usage of expert witness, which drew the document out. Juror mentioned that the document spoke of the discussion between Crown, Judge and Barrister on the inclusion of this evidence around Feb 1st Juror C No Juror D One other juror took the document from the other juror and I said to them several times not to read it but she kept reading it regardless. She then said to the group that she saw nothing relating to the facts of other evidence + statements Juror E We discussed what should be done with the document. Decided to give to court. Juror F Just that no one else seemed to have it and confusion as to what it was. Suggestion made to inform court officer Juror G No discussion of content or anything, the juror asked if we had the document and none of us did. Juror H No Juror J None Juror L Yes. Juror who had the document was asked if it swayed his views. He replied no. There was some speculation it was a "procedural" document related to this case. Juror M No Question 5: Do you have any document in your folder that you shouldn't have? i.e., you should only have access to the exhibits and MFI indictment? Juror A No Juror B I have only the required documents given as Exhibits 1-15, my notes, the indictment charges, empanelled jury information, attendance allowance, covid additional procedures Juror C No Juror D No other docs in my folder Juror E No Juror F No, only have what was presented and given to us. Juror G No. Juror H No. Juror J Do not have documents I shouldn't have Juror L No Juror M No

1. The responses were provided to the parties who made submissions as to the course the trial Judge should take.

Submissions at trial

1. Counsel for the appellant raised several matters of concern in respect of the answers from the juror questionnaire. He emphasised Juror D's response to question 4, which asserted that one of the jurors was reading the document and continued to do so even when Juror D "said to them several times not to read it". He also referred to Juror B's response to question 4, which referred to the discussion which led to the document being "[drawn] out" and the ensuing exchange in the jury room relating to "the discussion between Crown, Judge and Barrister on the inclusion of this evidence around Feb 1st."
2. He went on to identify "aspects of the judgment itself that causes some concern." He submitted that the jury would know that the appellant tried to exclude the expert evidence and may have read about parts of the evidence, set out in the judgment, that were not pressed. Counsel observed that if paragraph [18] of the judgment was read, which was an argument by defence counsel set out by the trial Judge, then there was a risk that the jury would engage in impermissible tendency reasoning, because it would cause the jury to think there was a "lack of trust by counsel for the defendant in terms of how they will deal with the evidence". He also raised concerns that the jury may treat the trial Judge's assessment of the probative value of the expert evidence as indicating the Judge's opinion on the importance of that evidence. Finally, defence counsel pointed out that one topic that the trial Judge had ruled admissible - referred to in paragraph [22(ix)] - was not included in the agreed facts ultimately tendered because the parties agreed that it was capable of misuse.
3. Counsel said he was "loath[e] to raise the issue" because the trial was in its final stages and the "timing is quite frankly terrible". Even so, he concluded: "It seems to me it's not an application per se, although it's typically described in that fashion by a party, but it seems to me that your Honour has to consider having discharged a juror, whether or not continuing the trial with the remaining jurors would give rise to a risk of a substantial miscarriage of justice, or put another way, subs (b), if of the opinion there is no such risk the trial can continue in that reduced fashion. … HER HONOUR: Your application is for a discharge of the jury, is that what you're saying? MCMAHON: It is, yes."
4. The prosecution submitted that "there is no need to discharge the remaining jurors", saying that her Honour "should properly accept the information that has been obtained from the jurors in such a careful and considered fashion". It was submitted there was nothing in the jurors' notes "that would cause your Honour any concern that any prejudicial information has been considered or come to the knowledge of the juror's individually or collectively". The Prosecutor said that further inquiries could be made by examining "relevant" jurors on oath but that this was "not necessary given the manner that the inquiry was made." It was also submitted that directions could cure any potential for prejudice.

Decision to continue with a jury of 11 and directions to the jury

1. The trial Judge refused the "application to discharge [the] jury" and provided the following reasons for that decision: "This is an application made on behalf of the accused that the remaining 11 jurors be discharged. This is opposed by the Crown. The issue involved in this matter is the extent of the knowledge of jurors of a judgment on admissibility of expert evidence as has been addressed in MFI 19. Each of the individual jurors who remain were asked to provide their individual responses to a set of five questions. Those responses have been provided and those responses have been made available to the parties and considered by the parties. The responses set out a different degree of knowledge or exposure. For even those for which there is the greater exposure I consider it to be well capable of being covered by suitable directions. I determine that the trial will proceed with 11 and I determine that there is no risk of a substantial miscarriage of justice. Accordingly, I do not accede to the application for a discharge."
2. The eleven jurors returned to the courtroom and the trial Judge provided the following directions: "Thank you members of the jury for attending to responding to those questions posed of you. It has been most helpful to receive those responses. You would no doubt remember in my opening remarks to you, way back on day 1, I brought to your attention the very different roles that we had. They indicated that you were the tribunal of fact and it's for you to determine all the facts but in my role I am to determine law. I don't have exactly what I said but I recollect it was along the lines of sometimes matters are dealt with in response to an objection to a question, sometimes it might be with admissibility of something. Most of those would be determine in your presence but you might be asked to leave. What I also do in my role in relation to the law is often before the trial starts with the jury, there are determinations of law that are made and that in fact occurred here. It is very common that there be such matters raised before a trial commences, they are also often raised during the trial but ideally the best option is they're raised before the trial and that way a jury isn't inconvenienced during the time that court time is required. So in this case I did hear some legal argument and I published a judgment and that is the document that is the subject of the questions posed to you. That judgment covered a number of issues that were raised before me that required me to reach a determination based upon legal matters. I was not determining any factual matters because that is within the domain of the jury. The jury determine questions of fact. In this case there is expert evidence before you. It is before you in the terms of a published document and you'll remember that that document is referred to as agreed facts and it became exhibit 15. So it's clear that the parties have had access to the material and they have reached a joint position of it becoming agreed facts. You are directed to disregard any information you may have obtained from the judgment or the document that was in the jury room. You are also directed not to discuss that document between each other. You are directed that the decision you make in this trial on the verdicts should only be made on the basis of the evidence that is being placed before you and the directions of law that I will give you on how you can and cannot use the evidence in the trial. So once again thank you for very candidly indicating the matters each of you did in your responses. I, consistent with the direction I have just given, would expect there will be no further discussion amongst you about that document and just disregard it. Moving then to your other note that came in this morning which has been marked as MFI 17. In that note it was asked by the jury to repeat the instruction on the utilisation of expert witness, ie, Dr Jane Goodman-Delahunty agreed facts on childhood sexual assault. I will be coming to that in my summing-up. When I gave you the direction yesterday I said I was giving it to you then because you were receiving the document but that I would be coming back to it and giving it to you as a formal direction in my summing-up. So rather than fragmenting my summing-up by giving it now I will give it to you which will either be today or early tomorrow morning. So I will come back to it, I'm not overlooking your note. As a matter of seating now we are a jury of 11. So you can now decide if you want to have another person up here and one 5 fewer person at the back. We're not in evidence anymore, we're into the addresses and you'll remember from the addresses that both parties are going to turn round and they'll be facing you. They need to cover quite a large vector because of where you all are so if anyone wants to move up into the jury box now is your chance before Madam Crown moves. So whoever thinks they've got the worst seat can take a better seat. We're now at the position of addresses, Madam Crown will address first."

Observations on the trial Judge's task

1. The issue for this Court is not whether the trial Judge erred in deciding to proceed with 11 jurors. That decision having been made, the question is whether there was a miscarriage of justice or, put in different language, whether there was a material irregularity such that the appellant did not receive a fair trial according to law: see, for example, Haile v R [2022] NSWCCA 71 at [201] (Bellew J), citing Phan v R [2018] NSWCCA 225 ("Phan") at [122] (Price J); see also Addo v R (2022) 108 NSWLR 522; [2022] NSWCCA 141 at [145] (Beech-Jones CJ at CL, Adamson and Bellew JJ), Watson v R [2022] NSWCCA 208 at [39]-[42] (Bell CJ, Price and Yehia JJ) and R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377 at [26]-[32]. Accordingly, the appeal is not strictly against the decision made by the trial Judge to continue with a jury of 11. However, the cases suggest, and parties to the appeal agreed, that the question is essentially the same.
2. Once the individual juror was discharged, the trial Judge was faced with the binary choice provided in s 53C of the Jury Act: 53C Discretion to continue trial or coronial inquest or discharge whole jury (1) If a juror dies, or the court or coroner discharges a juror in the course of a trial or coronial inquest, the court or coroner must - (a) discharge the jury if the court or coroner is of the opinion that to continue the trial or coronial inquest with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, or (b) if of the opinion that there is no such risk and subject to section 22, order that the trial or coronial inquest continue with a reduced number of jurors.
3. The word "risk" in s 53C is an important one for trial judges to consider when making difficult decisions, such as the one confronting Judge Noman SC.
4. In Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52 ("Wu"), McHugh J stressed at [26] the importance of the fact that the provisions of the Jury Act required the trial Judge to undertake a "two stage process". [2] His Honour said: "The first stage is concerned with the death or discharge of a juror. The second stage is whether, a juror having died or been discharged, the judge should order that the jurors remaining should 'be considered as remaining for all the purposes of that trial or inquest properly constituted' as the jury. That requires the judge to consider all the circumstances of the case including s 19 of the Jury Act which declares that the jury in criminal proceedings 'is to consist of 12 persons returned and selected in accordance with this Act.'" [3]
5. His Honour, along with Kirby J (who eventually dissented in the result), also considered it problematic that the trial Judge in the case of Wu said more than once that "there is no magic in the number twelve", a remark which ran contrary to the historical importance of that number comprising a jury. [4]
6. I emphasise these statements by the High Court in Wu to draw attention to McHugh J's observation at [28]: "But no-one should think that, once a juror dies or is discharged, the trial should automatically continue with the remaining jurors. Conviction by a jury of less than 12 is a denial of a long-standing right of those tried for serious crime under the common law system."
7. In that context and given what had happened and the content of answers to the questionnaire, her Honour's reasons for deciding to continue with the trial were very brief. There was no engagement with the contradictions in the answers provided by the various jurors and no analysis of the matters raised by the defence counsel concerning the answers given by Jurors B and D to question 4. Those responses, if accepted, cast significant doubt on the answers provided by other jurors. To take three examples:

• Four jurors asserted that there was no discussion of the document at all. That assertion is difficult to accept given the contents of the responses of the other jurors.
• The juror referred to by Juror D, who continued to peruse the document after being told to stop, was not identified. If Juror D's answer was accepted as accurate, and it was an unusual response to fabricate, that juror was in the same position as the juror who was discharged, as they were "privy to or [had] been exposed to material that goes beyond what's in this trial".
• Juror B's evidence of conversations about the "usage of expert witness" and the discussions between the lawyers and trial Judge about the "inclusion" of the evidence was not referred to by any other juror.

1. I also raise the decision in Wu and the later introduced provision in s 53C to emphasise that, as counsel said during argument at the trial, this was not strictly an application to discharge of the jury. Rather, it was a decision whether to continue the trial based on the "opinion" of whether continuing "with the remaining jurors would give rise to the risk of a substantial miscarriage of justice." In argument, and in the opening words of her Honour's judgment, the application was described as an application to discharge the jury or an application that the remaining 11 jurors be discharged.

Reasons for upholding ground 1

1. In joining the orders made on 29 March 2023, I was satisfied that the continuation of the trial resulted in a miscarriage of justice and that the appellant did not have a fair trial according to law. I approached the matter in accordance with the authorities referred to at [56]. For example, in Phan, Price J referred at [130] to the High Court's decision in Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 ("Crofts"): "In reviewing a trial judge's decision for continuing the trial, this Court is not confined to the judge's reasons. In Crofts, Toohey, Gaudron, Gummow and Kirby JJ said at 441: 'Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice.'"
2. The responses by the jurors to the questionnaire left this Court in a position of uncertainty as to what was discussed in the jury room and what information the individual jurors received, because of the mistaken provision of the judgment to the juror who was discharged. There was clearly a discussion about the judgment in the jury room, in spite of the responses of four of the jurors, and at least some of the jurors had read parts of it. It will be recalled that Juror L said the judgment had "22 paragraphs" (it had 23) which suggests that juror made their way to the last page of the document. This is contrary to the discharged juror's statement, under examination, that the non-discharged jurors had only seen the cover sheet. The conversation in the jury room, referred to by Juror B, concerned the discussion between the Judge and the lawyers about the "inclusion" of the expert evidence in the trial. This suggests that at least some, and possibly all, members of the jury were aware that the defence objected to the expert evidence and that the trial Judge had ruled that it would be "included".
3. Accepting Juror D's responses, it is apparent that one of the jury members was reading the judgment and declined to stop doing so despite Juror D insisting they stop reading it. That juror was not identified and almost certainly should have been discharged pursuant to s 53B(b) or (d) of the Jury Act.
4. Turning to the judgment which made its way into the jury room, the following matters had a capacity to cause prejudice to the appellant: 1. The fact that the appellant attempted to exclude the expert evidence from the jury's consideration. 2. The trial Judge's finding that the evidence was "of importance". 3. Judge Noman SC's related finding that the evidence could "substantially affect the assessment of the credibility of the complainant". 4. The judgment referred to evidence that was "not pressed" by the applicant's counsel. 5. The judgment referred to Dr Goodman-Delahunty's opinion that: "It is not uncommon for intrafamilial child sex offences to be committed within close proximity of other members of the family or when people are close by." This evidence was allowed by the trial Judge, but the Prosecutor did not, ultimately, press it. In discussions after the ruling, the parties agreed the evidence should not be led because of the risk that the opinion could have an unfair impact on the jury's assessment of the allegation in count 5 which was said to have occurred when other family members were in the near vicinity. The parties agreed that the evidence involved an opinion about the behaviour of offenders, rather than victims, and that this was not within the psychologist's area of expertise. 1. The judgment also made reference to "child abuse victims" and "child victims", expressions which may be apt to arouse prejudice in a lay juror.
5. There were, of course, countervailing considerations. The trial was nearing its end and some of the witnesses may be required to give evidence a second time. Those kinds of considerations can be relevant, as the High Court made clear in both Wu (see [29]) and Crofts (see p 452). They are factors which will no doubt weigh heavily on a trial judge who may feel under pressure to press on in a busy trial court like the District Court of New South Wales. However, such considerations will rarely prevail in a case like this, where the jury was exposed to material it should not have seen. This Court is then called upon to address the question of whether there was a risk of miscarriage and whether the appellant was convicted following a trial according to law.
6. I also considered the directions provided to the jury by Judge Noman SC and whether those directions were capable of mitigating the risk of miscarriage.
7. In the circumstances, I was not satisfied that the directions - as clear and forceful as they were - could address the potential for prejudice. There are limits to the axiom that jurors follow and obey the directions provided by a trial judge.
8. For those reasons, I agreed with the other members of the Court that ground 1 must be upheld at the conclusion of the hearing and joined in the orders made that day as well as the subsequent grant of conditional bail pending any re-trial.

Ground 2: The learned trial judge's directions on tendency evidence were erroneous and occasioned a miscarriage of justice

1. Resolution of the second ground of appeal involves consideration of the directions that should be provided to a jury where the prosecution relies on tendency evidence, especially when it seeks to establish the relevant tendency by reference to evidence tendered in proof of the counts on the indictment as well as evidence of uncharged acts of less seriousness. The issues ventilated on the appeal were not raised at the trial. There was no complaint about the tendency directions provided to the jury. The ground raises questions about the correct approach to s 161A of the Criminal Procedure Act 1986 (NSW) and the written submissions questioned the correctness of the decision in JS v R [2022] NSWCCA 145 ("JS v R"). Section 161A was not referred to at the trial and the judgment in JS v R had not been delivered when her Honour summed up to the jury. Because the issue was not discussed at the trial, it is not known whether Judge Noman SC was guided by s 161A.

Prejudice, onus and standard of proof: The need for careful directions where the prosecution relies on tendency evidence

1. Trial judges must formulate careful directions in cases where the prosecution relies on tendency evidence. The directions must be fashioned to address the particular circumstances of the case. While the Criminal Trial Courts Bench Book ("Bench Book") provides important guidance for trial judges, the directions must encapsulate the issues and potential dangers of misuse which might arise in an individual case.
2. Directions must guard against the improper use of tendency evidence and the potential for prejudice which is inherent in such evidence. The inherently prejudicial nature of tendency evidence was discussed by Bell P (as the Chief Justice then was) in Taylor v The Queen [2020] NSWCCA 355 at [122]. [5] His Honour referred to R v SK [2011] NSWCCA 292 at [34], RH v The Queen (2014) 241 A Crim R 1; [2014] NSWCCA 71 at [169] and cited the following passage from the judgment of Gageler J in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [71]-[74] ("Hughes"): [6] "71 Tendency reasoning, as courts have long recognised, is not deductive logic. It is a form of inferential or inductive reasoning. What it involves is 'admeasuring the probability or improbability of the fact … in issue … given the fact or facts sought to be adduced in evidence'. In the admeasurement of that probability or improbability, as courts have again long recognised, there inheres a very real risk of attaching 'too much importance' to the tendency evidence - of giving tendency evidence 'too much weight' [Perry v The Queen (1982) 150 CLR 580 at 585-586]. The common law traditionally took an extremely conservative approach to managing that risk, at least in criminal proceedings. 72 The problem that inheres in tendency reasoning has come to be exposed by social science research and explained in social science literature in more precise terms. The problem is one of cognitive bias, amounting to an inclination observable on the part of most persons to overvalue dispositional or personality-based explanations for another person's conduct and to undervalue situational explanations for that conduct. The bias is towards overestimating the probability of another person acting consistency with a tendency that the person is thought to have - of treating the person as more consistent that he or she actually is. 73 That problem of cognitive bias in tendency reasoning is separate from any added danger which might arise from the potential for a tribunal of fact to make some improper use of tendency evidence. The potential for a tribunal of fact to make improper use of tendency evidence is readily accommodated within an evaluation of the prejudicial effect of the evidence [HML v The Queen (2008) 235 CLR 334 at [12]]. Cognitive bias can perhaps be thought of as a form of prejudice, but it really is a problem of a different sort from the problem of a tribunal of fact making improper use of evidence. The problem is of a different sort because it inheres in the process of reasoning involved in the tribunal of fact making entirely proper use of the evidence."
3. To similar effect were the observations of Kiefel CJ, Bell, Keane and Edelman JJ in Hughes at [17]: "… The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years."
4. I referred to the above passage in BRC v R (2020) 284 A Crim R 124; [2020] NSWCCA 176 at [101] and stressed the need for a trial judge to "warn the jury against the misuse of [tendency] evidence based on an emotional or prejudiced reaction to [it]".
5. The circumstances of the present case, in which MM was the sole complainant and the acts relied upon to prove the asserted tendency included those forming the basis of counts 1-5, made it particularly important for the directions to be clear and precise. In BRC v R, I said at [102]-[103]: "102. Directions should be fashioned to minimise the risk of such prejudicial reasoning. For example, the jury should generally be directed that people do not always act on such tendencies and the question always remains whether it is established beyond reasonable doubt that the accused committed the particular offence charged. 103. Most importantly, the directions must identify the purpose for which the evidence was admitted and the use or uses to which it can properly be put. The Judge should explain the reasoning process involved. It will usually be appropriate to direct the jury that the evidence cannot be used in any other way. In cases where the tendency evidence is not the subject of the specific charges, it will be appropriate to direct the jury that it must not find the accused guilty of a specific charge unless it is satisfied beyond reasonable doubt that the accused is guilty of that charge; it must not substitute the conduct adduced as tendency evidence as proof of the charge. It must not find the accused guilty of a specific charge because the jury finds the accused person engaged in other criminal conduct."
6. With recent developments in the case law, and the introduction of s 161A of the Criminal Procedure Act, directions must also guard against the improper use of tendency evidence and ensure that the jury understands the onus and standard of proof. The directions must protect the accused against the risk that the jury may adopt a less rigorous standard of proof in relation to the charged offences.
7. Where, as it was here, parts of the tendency case involved allegations of less seriousness than the charged offences and where, as was mostly the case here, the tendency evidence comes from the same witness, the directions must address those circumstances and caution the jury against placing undue weight on the evidence.
8. As Senior Counsel for the appellant acknowledged, this is not always an easy task. Without abrogating the responsibility of the trial judge, those appearing for the parties should provide the judge with assistance as to the directions which are appropriate to the peculiar circumstances of the individual trial.

The tendency notice and evidence in the appellant's trial

1. The prosecution served a tendency notice, dated 23 November 2021, pursuant to s 97(1)(b) of the Evidence Act 1995 (NSW). Paragraph 4 identified the tendency that the Prosecutor sought to establish: "4. The tendency sought to be proved is [the appellant's] tendency to act in a particular way, namely, to have a sexual interest in the complainant, [MM] and a preparedness to act on that interest in respect of [MM]."
2. As the appellant submitted, the second of those tendencies (the "preparedness to act on" his sexual interest) had far greater probative value to the issues of whether the counts on the indictment were committed.
3. Paragraphs 2-3 of the tendency notice set out the evidence upon which the prosecution relied to establish the tendency: "2. The indictment contains five counts relating to one complainant ("[MM]"). The Crown seeks to rely upon the evidence of each of the counts on the indictment as tendency evidence in respect of the others counts. In summary, it is contended that the evidence in respect of the complainant on the indictment is cross-admissible as tendency evidence. 3. Further, the Crown seeks to rely upon evidence of the following uncharged acts, which are admissible in proof of each charged act as tendency evidence; a. On a number of occasions, the accused gave the complainant 'bear hugs', whereby the complainant would be lying on top of the accused's chest and he would slide her up and down his body, b. On a number of occasions during (a) the accused has an erect penis, c. On a number of occasions, the complainant and accused would be alone together in the accused's bed. d. On a number of occasions during the night the accused would go into the complainant's bedroom and stand right next to her head, whilst she was in bed. e. On at least one occasion the Accused entered the bathroom whilst the complainant was showering and remained there for a period of time, whispering her name. f. On at least one occasion the Accused made inappropriate comments towards the complainant."
4. A table at the end of the notice set out the evidence again and identified the parts of the complainant's statements relied on in support of these allegations and distinguished the counts on the indictment from the uncharged acts: Acts Charges Supporting Document The accused gave the complainant "bear hugs" Uncharged [11]-[12] MM dated 27 December 2019 [8], [16] MM dated 31 October 2020 The accused sexually hugged, sniffed, rubbed or kissed the complainant Uncharged, Count 1, 3, 5 [10], [22], [23] MM dated 27 December 2019 [8], [15], [21] MM dated 31 October 2020 The complainant and accused would be alone together in the accused's bedroom Uncharged, Count 3, 4 and 5 [11]-[12], [22]-[23] MM dated 27 December 2019 [8] MM dated 31 October 2020 During the night the accused would go into the complainant's bedroom and stand close to her head, whilst she was in bed. Uncharged [16] MM dated 27 December 2019 [17] MM dated 27 December 2019 The Accused entered the bathroom whilst the complainant was showering and remained there for a period of time, whispering her name. Uncharged [8], [15] MM dated 14 October 2020 [18] MM dated 31 October 2020 The accused had an erect penis in the presence of the complainant Uncharged, Count 2 [12], [21] MM dated December 2019 [16], [19] MB dated October 2020 The Accused played a pornographic video to the complainant Count 2 [20]-[21] MM dated 27 December 2019 [19] MM dated 31 October 2020 The accused had the complainant masturbate him. Count 2 [21] MM dated 27 December 2019 [19] MM dated 31 October 2020 [22], [25] MM dated 27 December 2019 The Accused made inappropriate comments towards the complainant Uncharged, Count 3 [10], [12] MM dated 31 October 2020 [22] MM dated 31 October 2020 The accused was fully naked in front of the complainant Count 3 [22] MM dated 27 December 2019 The accused performed cunnilingus on the complainant Count 4 [22] MM dated 27 December 2019 [7] MM dated 14 October 2020

1. No objection was taken to the evidence or to the prosecution relying on tendency evidence. The complainant gave evidence generally in accordance with the evidence identified in the notice. In relation to some of the uncharged acts there was evidence from other witnesses that had a capacity to provide some support for the complainant's allegations.
2. In advance of the summing up, the tendency notice was marked for identification (MFI 13) and a further table provided references to the transcript of evidence given at the trial (MFI 15).

The directions

1. The jury were given the following directions during the summing up: "TENDENCY REASONING 39. The accused is charged only with the offences stated on the indictment, so the five counts listed on the indictment. You have before you evidence that the Crown relies upon as establishing that the accused committed those offences. 40. Part of the Crown case is that the accused had both a tendency to have a particular state of mind, namely, to have a sexual interest in the complainant and to act on that sexual interest by doing sexual acts with the complainant. 41. The complainant detailed the occasion relied upon supporting each count on the indictment. She also gave evidence of other incidents said to be inappropriate. The Crown relies, both, on these other incidents and the counts on the indictment as evidencing the accused's sexual interest in the complainant and that he acted on that sexual interest. In addition to the incidents identified supporting each count, the other incidents include: i. the bear hugs, which was the cuddling in the accused's bed with occasions when the accused removed his pyjama pants and some occasions when the complainant felt his erect penis; ii. the shopping occasion - when they went shopping for a dress for the wedding and the way in which the accused commented that the complainant looked beautiful; iii. the use of the hairbrush - the accused entering into the complainant's bedroom at night when she was asleep and being close to her and asking to use her hairbrush, despite his limited hair and that he never used her brush during the day; iv. the shower occasion - the accused entering the bathroom when she was showering and remaining in the room and whispering her name; v. the bus incident when the complainant was rubbing a pole on the bus and the accused said, 'I wish that was my penis'; and vi. the conversation in the laundry about asking the complainant to stay. 42. In nominating the counts on the indictment and the other incidents that I have just gone through, the Crown says the tendency of acting on a sexual interest is demonstrated by 11 factors: i. that the accused gave the complainant 'bear hugs' and the Crown relies upon the 'bear hugs incident'; ii. that the accused sexually hugged, sniffed, rubbed or kissed the complainant and the Crown relies upon the 'bear hugs incident' and also the evidence supporting counts 1, 3 and 5; iii. the complainant and the accused would be alone together in the accused's bedroom and the Crown relies upon the 'bear hugs incident' and counts 3, 4 and 5; iv. that during the night the accused would go into the complainant's bedroom and stand close to her head, whilst she was in bed and the Crown cites the 'hairbrush incident'; v. that the accused entered the bathroom whilst the complainant was showering and remained there for a period of time whispering her name, that is, the 'shower incident'; vi. that the accused had an erect penis in the presence of the complainant and the Crown relies upon the 'bear hugs incident' and count 2 and 5; vii. the accused played a pornographic video to the complainant and that is count 2; viii. that the accused had the complainant masturbate him and that I relied upon and count 2; ix. the accused made inappropriate comments towards the complainant and the Crown cites the 'dress shopping incident', the 'bus incident', the 'laundry incident' and count 3; x. the accused was fully naked in front of the complainant and the Crown cites count 3; xi. the accused performed cunnilingus on the complainant and that is count 4. 43. The Crown says that you would be satisfied the accused had this tendency of a sexual interest in the complainant and that he acted on that sexual interest because of this conduct. 44. The Crown says this conduct reveals the accused had the nominated tendency, which makes it more likely that he committed the offences on the indictment. 45. You will need to consider the evidence relating to this alleged conduct of the accused and decide whether he did, in fact, conduct himself in the way the Crown alleges. In doing so, you do not consider each of the acts in isolation. You should consider all of the evidence and decide what conduct you are satisfied occurred. 46. If 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 nominated tendency. 47. You should consider whether there might be alternative explanations for the evidence. When you consider tendency evidence, you should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. 48. If you are not satisfied on the evidence that there was the tendency, you must put the whole issue of tendency to one side and confine your consideration to the other parts of the Crown's case. 49. If you find the accused did have the state of mind and that he did act on it as nominated, then you can use that in considering whether it is more likely that he committed the specific offences with which he is charged. However, it is essential you consider, in relation to each charge on the indictment whether the accused acted in that particular way and that he had the particular state of mind on that specific occasion. 50. Finding the accused did have the tendency the Crown alleges is not enough to prove guilt. It may assist the Crown to prove the accused committed the offences, but it is not enough by itself. The question is whether it makes it more likely the accused conducted himself in the way the Crown alleges on any of the occasions that are the subject of the charges. The is the only way the accused's tendency may be used. 51. Ultimately you must decide whether the specific offences with which the accused had been charged have been proved. That decision must be based upon the evidence relevant to each of the charges. This includes the evidence of the complainant about what the accused did. It will include the tendency alleged by the Crown, as directed, provided you are satisfied it has been established. 52. When considering whether a charge has been proved beyond reasonable doubt, you will have to decide whether the Crown has proved the accused committed the essential elements of that charge. 53. Some of the evidence before you that is relied upon by the Crown to prove the tendency alleged concerns incidents that are not the subject of any charge on the indictment. If you are not satisfied that an incident that is not the subject of a charge occurred, then the evidence relating to it should be put completely aside. There is no other issue in the case to which it is relevant. 54. When considering tendency reasoning, I remind you that the accused denied any sexual activity occurred at all, and therefore, does not accept that he had the alleged tendency."
2. No objection was taken to these directions at the trial. There were discussions in advance of the summing up, during which the trial Judge was provided with the tendency notice and confirmed with counsel that there was no objection to the use of both charged and uncharged acts in proof of the tendency. Counsel said he understood both were "included on the Bauer basis, essentially". [7] Section 161A of the Criminal Procedure Act was not raised by either counsel. As I have said, it is unclear whether the directions formulated by Judge Noman SC were guided by the provision in s 161A.
3. The jury asked for the tendency evidence direction to be "redeliver[ed]". Her Honour provided a slightly shortened version of the direction upon that request.

The submissions

1. The main complaint made on appeal is that the directions invited a circular process of reasoning. Perhaps more precisely, the argument is that the directions may have led the jury to convict the appellant on counts 2-5 by adopting a standard of proof less onerous than proof beyond reasonable doubt. The submission is that this possibility arose because the jury was invited to use the facts relating to those counts as part of the tendency case and directed that those matters need not be established beyond reasonable doubt.
2. An anterior complaint is to the effect that the directions went beyond the scope of the tendency notice. As I understood the argument, it is submitted that there was a "problem" because (in some instances) the same incident was used to support a tendency to do things of much less seriousness and also to support the more serious allegations that comprised a charge in the indictment. The argument is recorded in the transcript of the appeal. [8] I am unable to accept this part of the argument. The trial Judge put the tendency case and the incidents upon which it was based, by reference to the notice, the evidence and the tables with which she was provided, without complaint by counsel appearing for the appellant at the trial. I will not address this aspect of the argument further except insofar as it feeds into the central complaint.
3. Returning to the appellant's key complaint, the argument was put in written submissions in the following way: "79. It should be noted first that the tendency direction contemplated the establishment of tendency from both charged acts and uncharged acts. The tendency sought to be established was 'sexual interest' and that the appellant 'acted on that interest'. To be precise about this, 'sexual interest' and 'sexual interest acted upon' are different, the latter being (potentially) far more probative than the former. The events alleged were on a wide spectrum, extending for example from 'bear hugs', 'being alone together with bear hugs' and 'inappropriate comments', all the way to the performance of cunnlingus, the subject of count 4. 80. To be clear, in respect of any count, the evidence of tendency was being relied upon to establish that in respect of proof of that count, the accused had a pressing desire to engage in sexual activity with the complainant, which if also established (as part of the tendency), he had acted on in the past. How charged and uncharged acts work in this regard is not necessarily the same. This is for two reasons. First, charged acts tend to be much more serious than uncharged ones, and hence are much more probative of a 'sexual interest acted upon' as an established tendency. Secondly in respect of any particular count, it is impermissible in considering that count to have any regard at all to those (very same) alleged acts in determining whether or not a tendency is established which may be relied upon in proof of that fact. In addition, and related, if circular reasoning of this kind is permitted and no particular standard is required to be established, then in respect of any particular count, proof of that count will be supported by evidence of that very count, established to some standard less than reasonable doubt. 81. Explaining this to a jury may not be entirely straightforward, but it can be done. If one is addressing uncharged acts in this particular case, they included acts suggesting a sexual interest, not necessarily acted upon. Subject to issues of probative value, this is permissible and, generally speaking, evidence of the type contemplated by HML v The Queen (2008) 235 CLR 335, [2008] HCA 16, now qualified by Bauer. In respect of charged acts, this evidence is generally, and in this particular case, much more probative than the evidence of uncharged acts, and involving explicit sexual conduct of varying seriousness. 82. Take for instance count 4, which is the most serious allegation. At the point of considering whether count 4 is established, it would be impermissible to have any regard to evidence of count 4 as evidence of tendency supporting count 4. However, say that count 2 had been established at that point (independent of anything to do with count 4), then at that point highly probative tendency will have been established in respect of count 4. This reasoning is permissible and potentially compelling. Similarly, if independent (altogether) of count 2, count 4 had been established, then count 4 would be highly probative of count 2. 83. A direction to have regard to all the evidence charged and uncharged in determining the existence of tendency is bound to be problematic if the charged counts are brought to bear as a matter of generality and without any consideration of the standard of proof, for the reasons just given. On the other hand, such a direction might be permissible if what sought to be established was a tendency that fell short of the actual counts, but what then would be established would be less probative than the evidence of the counts themselves. That is not this case."
4. It was submitted that, while the decision in The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 ("Bauer") clarified that uncharged acts relied on in proof of a tendency case need not be proved beyond reasonable doubt, [9] the situation was different in relation to acts which formed the basis of a count on the indictment. It was submitted in the appellant's written submissions at [85] that "no High Court authority holds that the jury need not be satisfied of a charged act beyond reasonable doubt before it can be used for tendency purposes".
5. It was further submitted that s 161A did not provide support for the directions given at the appellant's trial and that "in order for the jury to be satisfied that the charged acts occurred, they had to be satisfied of particular essential facts … beyond reasonable doubt". The appellant's written submissions went on to say: "90. It was only upon reaching this state of satisfaction in respect of one of the charges, could the jury then go on to consider whether the appellant had a tendency of the kind alleged and, in turn, use that to reason to guilty on the other charges. The provision does not evince an intention to alter the standard of proof for offences which are also adduced for tendency purposes. In fact, the provision is directed to ensuring that the standard of proof for element of offences or essential facts remains beyond reasonable doubt." (Emphasis in original.)
6. A similar argument was advanced in JS v R. For the same reasons as were provided by Basten AJA (Dhanji J and I agreeing) the submission cannot be accepted.
7. At the hearing of the appeal, the appellant emphasised that the complaint was not really about the standard of proof. Rather, it was a complaint concerning the use of evidence as tendency evidence, when the same evidence was also used to establish an element of one of the counts on the indictment. As it was put at the hearing of the appeal (noting that the initial reference is to the case of JS v R): "GAME: Yes, but this case is actually different to JS. But as I said, I'm driven to say something about the standard of proof, but my central argument is really an argument about how you tell a jury how to reason about this, and this does end up, in the most important way, on all the most serious allegations, being wholly circular. BEECH-JONES CJ at CL: Well if the standard of proof is different, it's not necessarily circular. GAME: Well the problem with that is this: is that you're sitting there worrying about count 4 because you haven't - I'm just making this up, but you're sitting there saying 'Have I got about - yes, I've got a doubt about 4. I'm going to look at the tendency evidence'. And you were satisfied about count 4 on a standard less than beyond reasonable doubt, and now you've brought that into your consideration about beyond reasonable doubt. So at a lesser standard is not going to - it helps, but it doesn't solve the really important problem."
8. The oral submissions concluded by reference to a hypothetical tendency case involving incidents (both charged and uncharged) of varying degrees of seriousness and directions that could be given to stop the jury from engaging in a process of circular reasoning: "GAME: … So you're looking at all the other evidence in the case and you're saying - what I say works is that if you identify a tendency, and it doesn't really sting for a prosecution - if you identify the tendency that, as it were, falls short of the most serious or the thing that you are alleging, then you're actually bringing quite a lot. You are bringing something to the case, and it does kind of work. As soon as you say you've got the most serious act - let's say you've got minor assault, minor sexual - let's say - I say 'Minor'. Let's say you've got a minor indecent assault and then you've got one count of cunnilingus. That's not this case, but say you've got that. Then you are running into a big problem if you allow the cunnilingus to be relied upon as tendency evidence when you are directing the jury in respect of the cunnilingus. BUTTON J: Just exploring, Mr Game, perhaps in accordance with your thesis, one could say to the jury: 'Now, when you're thinking about applying any possible tendency to count 4, you would need to subtract from your consideration of the tendency count 4 for the simple reason, members of the jury, that you would just be bootstrapping yourself into satisfaction of count 4.' GAME: Yes, it can be done. That's what I'm saying. BUTTON J: I just did it. GAME: Yes. Sorry, yes. I'm agreeing with your Honour. Yes, it can be done. And it makes sense and a jury would understand that. And then-- BEECH-JONES CJ at CL: Then you say you can also direct them, 'And if you consider in count 1, if you considered count 4, you can't consider your conclusion on count 1 because you considered it on count 4'. GAME: Yes, but it doesn't matter because if proceed kind of crab-like through the counts or you proceed to - you know, it - say you've got two counts and one is strong and one is weak. The first one's got corroboration and the second one hasn't and it's a less serious allegation, and they're quite temporally close. Then the first one is working very strongly on the second one, but the second one's got nothing to say really about the first one on its own. So it's getting inside those ideas that a jury needs to understand. That's what I'm really getting at, is these kind of directions don't get inside what a jury needs to understand. They are just saying, "You can have regard to everything in the whole case however you like on this question of tendency". Then the jury, not surprisingly, asked for further directions. They got this whole thing all over again at p 458 and following. My submission is that at that point those directions are - it is actually incoherent for a jury to be directed in this way. Incoherent."

Section 161A and the standard of proof

1. Section 161A of the Criminal Procedure Act provides: 161A Direction not to be given regarding tendency or coincidence evidence (1) A jury must not be directed that evidence needs to be proved beyond reasonable doubt to the extent that it is adduced as tendency evidence or coincidence evidence. (2) If evidence is adduced as both tendency evidence or coincidence evidence and as proof of an element or essential fact of a charge before the jury, the jury may be directed that the evidence needs to be proved beyond reasonable doubt, but only to the extent that it is adduced as proof of the element or essential fact. (3) Subsection (1) does not apply if a court is satisfied-- (a) there is a significant possibility that a jury will rely on an act or omission as being essential to its reasoning in reaching a finding of guilt, and (b) evidence of the act or omission has been adduced as tendency evidence or coincidence evidence.
2. As the appellant submits, the provision requires the jury to be directed clearly as to the standard of proof where the evidence is led in proof of an element or where it is an essential part of the circumstantial reasoning process. I accept there is a risk of inviting an impermissible and circular process of reasoning when the evidence is led for both purposes and where different standards of proof apparently apply to the same evidence, depending on the purpose for which it is being used. I also accept that the problem may be particularly acute in cases where there is a cascading level of seriousness in the allegations being relied on as tendency evidence.
3. However, the appellant's submission that "the provision does not evince an intention to alter the standard of proof for offences which are also adduced for tendency purposes" must be considered in light of the final words of s 161A(2) (emphasis added) - "but only to the extent that it is adduced as proof of the element or essential fact". This makes it clear that where evidence is adduced both as tendency evidence and as proof of an element, the jury "must not be directed" (s 161A(1)) that it need be proved beyond reasonable doubt insofar as it is relied on as tendency evidence. However, it can be (and clearly must be) so directed "to the extent that it is adduced" as proof of an element of a count on the indictment: s 161A(2).
4. The provision creates significant difficulties for trial judges in formulating directions which both (a) comply with the prohibition is s 161A(1) and (b) do not invite the jury to engage in an impermissible circular reasoning process or to apply a less rigorous standard of proof to the counts on the indictment. However, the terms of the section leave little room for doubt that the Parliament intended that the evidence adduced in proof of the counts on the indictment can also be used in proof of the tendency asserted and that, in the latter regard, it is not incumbent on the Prosecutor to establish the relevant event(s) beyond reasonable doubt.
5. If there is any ambiguity in the provision, recourse may be had to secondary materials. If there is any doubt as to the propositions stated in the last two paragraphs, it is removed by reference to the italicised part of the following extract from the second reading speech: [10] "Standard of Proof amendment The second supplementary amendment to the Criminal Procedure Act is in Schedule 1.8[8] of the bill. It clarifies that a jury should not be directed as to the standard of proof required in relation to tendency and coincidence evidence. This implements Recommendation 48 of the Royal Commission. This recommendation was that 'tendency or coincidence evidence about a defendant in a child sexual offence prosecution should not be required to be proved beyond reasonable doubt.' This recommendation is largely consistent with provisions in Victorian legislation, supported by the Royal Commission, which makes it clear that a judge may not direct a jury that any matters other than the elements of the charged offence need to be proved beyond reasonable doubt. The Royal Commission explained at p 73 of the Criminal Justice Report that recommendation 48 was in response to a determination by the New South Wales Court of Criminal Appeal that tendency evidence should be required to be proved beyond reasonable doubt. The Criminal Justice Report was published in August 2017, before the September 2018 High Court decision of The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40. The High Court unanimously found at [86] that: Contrary to the practice which has operated for some time in New South Wales, trial judges in that State should not ordinarily direct a jury that, before they may act on evidence of uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt. However, the judgment was silent on the topic of evidence that is adduced to establish a dual purpose - a tendency or coincidence on behalf of an accused, and an element (or elements) of an offence. This has resulted in confusion and inconsistent directions in New South Wales. Some stakeholders have advised that judges are still directing that juries need to be satisfied of such evidence beyond a reasonable doubt, before it can be used for tendency and coincidence purposes. This amendment will make clear that this direction is not required for tendency and coincidence reasoning. The provision however is not intended to interfere with the fundamental requirement for courts to direct juries that the elements of any charged offences must be proven beyond a reasonable doubt. The proposed s 161A(2) ensures that, consistent with the fundamental principles of criminal law, nothing in s 161A(1) interferes with the requirement to direct a jury that all elements of a criminal offence need to be proved beyond a reasonable doubt before they can convict the accused. In order to address some New South Wales stakeholder concerns and provide clarity, proposed s 161A(3) allows a judge to direct a jury as to the standard of proof that they are required to apply to tendency or coincidence evidence when there is a significant possibly that the jury will rely that evidence as being essential to its reasoning in reaching a finding guilt. The proposed s 161A(3) seeks to ensure that, in appropriate cases, a court can give still give a jury the Shepherd direction (following Shepherd v The Queen (1990) 170 CLR 573; affirmed in The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40 at [86]), and to clarify that the reform is not intended to abrogate the Shepherd direction. As with the first amendment, this amendment is not limited to trials for child sexual offences. This is consistent with the common law position and will ensure that directions as to the standard of proof for tendency and coincidence evidence are approached uniformly in all criminal trials." (Emphasis added.)
6. The reference in this passage to evidence being "adduced to establish a dual purpose" and the latter emphasis on the requirement of proof beyond reasonable doubt to the criminal standard for the elements of the offence (and matters essential to proof of those elements) is reflected in the terms of s 161A(2). The evidence can be adduced for two distinct purposes and, when it is, the standard of proof is different depending on the purpose for which it is used.

Jury directions

1. As I have said, there is substance in the appellant's concerns about the possibility of the jury engaging in a form of circular reasoning, and the potential erosion of the standard of proof, when evidence is used both to prove tendency (not requiring proof beyond reasonable doubt) and to establish an element (requiring proof beyond reasonable doubt). This is particularly so where (as here) the evidence largely comes from the same source (generally, in cases of this kind, from the complainant). The concern is that the jury may make a finding about the conduct to some lesser standard, and then reason to a conclusion on the charges (beyond reasonable doubt) based on the finding made to the lesser standard.
2. Against that, the process of tendency reasoning involves the tribunal of fact deciding whether the asserted tendency exists by reference to the whole of the evidence, considered together, including the charged and uncharged acts. This is consistent with the way circumstantial evidence works more generally.
3. Framing directions requiring the jury to disregard parts of the evidence (that is, the acts giving rise to the charge under consideration), in deciding whether the tendency exists, may result in confusion and lead the jury to approach the tendency case in an erroneous manner. At the invitation of the Court, the appellant provided a proposed draft direction after the hearing: "I have directed you that you may have regard to all of the evidence that I have just identified as constituting the tendency evidence in your consideration of whether: (a) you are satisfied such conduct occurred, and (b) whether it enables an inference to be drawn that the accused had the asserted tendency and acted on it as alleged. When considering this however, there is one qualification you should observe. Two of the counts on the indictment are relied upon as evidence of the asserted tendency (items (viii) and (xi) in the list I just gave you). They are Count 2, which alleges an incident where the accused had the complainant masturbate him and Count 4, which alleges that the accused performed cunnilingus on the complainant. I will take Count 2 as an example, although what I say also applies to Count 4. A little earlier in these directions I told you that you need to give separate consideration to the individual counts (para 11). This remains the case. When you determine whether Count 2 is proven beyond reasonable doubt, you may consider the tendency evidence. If you do this, you should not include the allegation that the accused had the complainant masturbate his penis as part of the tendency evidence. This is because it is in fact the Count 2 evidence (item (viii). That means simply this: you are asking yourself whether or not the Crown has proved beyond reasonable doubt the accused had the complainant masturbate his penis. In that consideration you are entitled to take into account all of the other tendency evidence. However, it would be illogical and impermissible if you included the Count 2 evidence itself, that the accused had the complainant masturbate his penis and had a tendency to so act, as tendency evidence that he did those things, before you have even decided if he did those things. As I have said, you are entitled to consider the rest of the tendency evidence in your consideration of whether the Crown have proved the accused committed the offence alleged as Count 2. As I have also said, the same applies to Count 4 which is an allegation of cunnilingus. To put it more briefly, if in your separate consideration of Count 4 you bring to bear (as you are entitled to do) any finding you may make on the tendency evidence, you should not include as part of that tendency evidence, the Count 4 evidence of cunnilingus. So, on Count 4 you may have regard to all of the other identified tendency evidence apart from the Count 4 evidence itself. Related to this is another matter relevant to your consideration of the tendency evidence. In your consideration of the tendency evidence it is a matter for you to determine what conduct occurred and the nature and extent of any tendency so established. The standard of proof applicable in a criminal trial namely, proof beyond reasonable doubt, does not apply to your consideration of the tendency evidence. There is one qualification, however. This applies if you form the view that proof of the asserted tendency is essential to any finding you make on the question of guilt beyond reasonable doubt. In this circumstance you would need to be satisfied of the asserted tendency beyond reasonable doubt before you could make a finding of guilt beyond reasonable doubt on that count."
4. The respondent submitted that this direction "is inconsistent with that set out in the bench book" and referred to the Bench Book at [4-227]. The Court has said many times that the Bench Book should not be used in this way: see R v Hong [2009] NSWCCA 242 and the cases referred to by Spigelman CJ at [33]-[35]; see also the Foreword to the Bench Book itself.
5. The Bench Book is often correct. It can be a useful tool for trial judges and for counsel conducting criminal trials. However, it should not be used as authority or precedent justifying a submission that a particular direction should, or should not, be provided in a given case. Replicating the words of the Bench Book has led trial judges into error more than once: see Hadchiti v R [2016] NSWCCA 63; Abdallah v R [2016] NSWCCA 275 at [73]; SB v R [2020] NSWCCA 207 at [127], [179]; [11] Hayne v R [2022] NSWCCA 11 at [18]-[35]. [12] The need for the Bench Book to be modified was discussed in BRC v R. In Beattie v The Queen [2021] NSWCCA 291 the Court said "[t]he fact that a direction is suggested in the Bench Book does not mean its use cannot give rise to a miscarriage of justice". See also Ith v R [2012] NSWCCA 70 at [48]. One of the problems with reliance on the direction at [4-227] is that the proposed or draft direction does not contemplate the directions authorised by s 161A(3). This is not to criticise the Bench Book but to demonstrate again, as its Foreword says: "The directions are not intended to constitute an authoritative statement of the law, nor is it the case that the whole of each direction will be appropriate in each case. In all respects the directions ought be adapted to the circumstances of the individual case and the legal issues which have arisen."
6. The direction suggested by the appellant has the capacity to cure the vice of which he complains. However, it may also create confusion and requires the jury to make a finding (or findings) as to whether the alleged tendency exists on different bodies of evidence, depending on which count it is considering. This was one of the complaints made by the respondent in their supplementary submissions in reply to the appellant's proposed direction.
7. Another solution, in an appropriate case, is to give effect to the provision in s 161A(3) of the Criminal Procedure Act. That sub-section preserves what is often referred to as a "Shepherd direction": Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 ("Shepherd"). As has been seen, the second reading speech specifically noted that the "reform" enacted by s 161A was "not intended to abrogate the Shepherd direction" in cases where there is a significant possibility that a jury will rely on that evidence as being essential in reaching a finding of guilt.
8. Tendency evidence is a species of circumstantial evidence and Shepherd is a case about circumstantial reasoning. Shepherd arose because of a misunderstanding about the joint judgment of Gibbs CJ and Mason J (as his Honour was at the time) in Chamberlain v The Queen [No 2] (1984) 153 CLR 521; [1984] HCA 7. Shepherd confirms that, in a case based on circumstantial evidence, neither individual items of evidence nor "intermediate facts" need to be established beyond reasonable doubt. However, there is an exception where the evidence or facts represent "indispensable links in a chain of reasoning towards an inference of guilt": Shepherd at 579 (Dawson J, Toohey and Gaudron JJ agreeing at 586; see also Mason CJ at 576). Such indispensable links must be proved beyond reasonable doubt and the jury should be so directed.
9. Section 161A(3) preserves the requirement to provide such a direction. However, rather than leaving it to the trial Judge to identify and direct the jury as to which facts are "indispensable links", the sub-section allows the direction to be given when there is a "significant possibility" that "the jury will rely on an act or omission as being essential to its reasoning".
10. In JS v R Basten AJA said at [39]: "It is not easy to envisage a circumstance in which the commission of one offence against a victim will be an indispensable step in reasoning that the other offence was committed."
11. While I agreed with his Honour in that case, the terms of s 161A(3) demonstrate that there will be cases where a Shepherd direction will be appropriate and necessary. An example might be a case such as the present (which, as Senior Counsel acknowledged, is "actually different to JS"), [13] where the prosecution relies, in proof of the tendency, on uncharged acts and charged acts of varying degrees of seriousness. There may be "a significant possibility" that a jury which finds the appellant has a tendency to act on a sexual interest in a child in a less serious way (for example, by making inappropriate comments, walking into a bathroom, or rubbing themselves against them), is not persuaded that such a tendency supports a more serious allegation (such as sexual intercourse or cunnilingus). It may then be appropriate to provide a direction along the lines of set out in the final paragraph of the appellant's suggested direction set out above at [106]. I note in passing that no submission was made to Judge Noman SC which ventured even close to a suggestion that a Shepherd direction - or a direction under s 161A(3) - was appropriate.
12. I maintain my agreement generally with the judgment of Basten JA in JS v R, particularly the observation at [43]: "It is the tendency that is relied on as circumstantial evidence in proof of the charge on the indictment. The proper approach is to have regard to all the evidence of relied on in proof of the tendency as evidence of the tendency alleged. To the extent that the jury is satisfied of the existence of the tendency, the tendency may be relied on in proof of the charge. Given this process, it is preferable not to direct a jury to make findings as to the conduct relied on in proof of a charge. Rather the jury should be directed with respect to finding the alleged tendency."
13. These observations accord with the process of reasoning involved in a tendency case as it has been explained in previous cases: see, for example, IMM v The Queen (2016) 257 CLR 300 at 327; [2016] HCA 14 at [104] (Gageler J) and Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303 at [253], [360].
14. Of course, the jury must also be directed - as occurred in the present case - that, in the end, the elements of each offence on the indictment must be established beyond reasonable doubt.

Resolution of ground 2

1. Given the success of ground 1 and the absence of any arguments on this issue at the trial, resolution of this ground is somewhat academic.
2. It may be, if the Director of Public Prosecutions decides to put the applicant to trial for a second time, that the trial judge would be persuaded to put the tendency directions somewhat differently or to include a direction under s 161A(3). The directions might include reference to the different degree of seriousness of some of the uncharged acts as compared to the charged acts.
3. However, I am not persuaded that the tendency directions provided to the jury buy Judge Noman SC were wrong or, as the ground is framed, led to a miscarriage of justice.
4. I do not accept the submission that the tendency directions provided to the jury were "incoherent".
5. Nor did the directions reverse the onus of proof or lead to a situation where the jury may have returned guilty verdicts on counts 2-5, based on a misunderstanding of the standard of proof relating to the charges. The directions were quite clear about the standard of proof attaching to each of the charges. While the section was not referred to at the trial, the directions complied with s 161A of the Criminal Procedure Act 1986.
6. Insofar as the submission was pressed, I do not accept that JS v R was wrongly decided. I do accept that the circumstances were somewhat different, and that JS v R does not dictate the outcome of the present ground of appeal. The case highlights the need for directions to be guided by the factual circumstances of the case.
7. Because of the importance of the issues raised, and the difficulties involved in directing juries in circumstances such as the present, I would grant leave to argue ground 2.
8. However, in all of the circumstances, I would not uphold the ground in the circumstances of the case.

Endnotes

1. See for example Hunt v R (2011) 81 NSWLR 181; [2011] NSWCCA 152 at [28]-[32]; Smith v R (2010) 79 NSWLR 675; [2010] NSWCCA 325 at [35]-[40]; R v Brown and Tran (2004) 148 A Crim R 268; [2004] NSWCCA 324.
2. The Jury Act was amended in 2008 and 2010 (since Wu was decided) to include the provisions in ss 53B and 53C. See the observation of Bellew J in Haile v R [2022] NSWCCA 71 at [195]-[196].
3. See also the judgment of Gleeson CJ and Hayne J at [6] and [8].
4. Wu v The Queen (1999) 199 CLR 99 [1999] HCA 52 at [27]-[28] (McHugh J) and [44], [74] (Kirby J); contra [21] (Gleeson CJ and Hayne J) and cf [92]-[96] (Callinan J).
5. His Honour dissented in the outcome, but the observations concerning prejudice were correct and not the reason for the divergence of views as to the result of the appeal.
6. Although Gageler J was in dissent as to the result, the majority did not address the history and policy underpinning the "tendency rule"; see Taylor v The Queen [2020] NSWCCA 355 at [94].
7. This was a reference to The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40.
8. Tcpt, 29 March 2023, pp 9-11.
9. See The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [86].
10. New South Wales Legislative Council, Parliamentary Debates (Hansard), 20 October 2020.
11. Cf WS v R [2023] NSWCCA 52.
12. Another example is Carbone v R [2020] NSWCCA 318 where the trial Judge's directions on manslaughter by unlawful and dangerous act (set out at [27]-[28]) replicated the directions in the Bench Book. The directions on whether the act was dangerous were that the accused "would have realised that it exposed the deceased to a risk of serious injury." That direction was erroneous, largely because it failed to refer to an "appreciable risk of serious injury": Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31 at 333 ("Wilson v The Queen") and see, Button J in Carbone v R at [105], [119]. The current version of the Bench Book at [5-6240] includes a proposed direction on dangerousness that says a reasonable person "would have realised that the act exposed another person, whether it be the deceased or not, to a risk of serious injury." Contrary to the decision in Wilson v The Queen, the word "appreciable" is omitted. The commentary on Wilson v The Queen also omits the word "appreciable". By contrast, the current version of the Sentencing Bench Book correctly states the law at "[40-010] Categories of manslaughter", as it was articulated in Wilson v The Queen.
13. Tcpt, 29 March 2023, p 16. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 October 2024