Wardell v R

Leave to appeal out of time

1. The applicant filed a notice of intention to appeal on 9 November 2021. However, a notice of appeal was not filed until 11 October 2023. It appears that, as a result of the High Court's decision in Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15 (Roder); 98 ALJR 644, published on 17 April 2024, it was thought appropriate to file another notice of appeal on 2 July 2024.
2. The explanation for why a notice of appeal was not filed within time was set out in the affidavit of Mr Katsoolis and was not the subject of any challenge. Part of the delay was attributable to the time taken to obtain relevant documentation and counsel being on maternity leave. Part was attributable to the time taken by counsel to consider the prospects of the proposed appeal and to provide advice and then the obtaining of instructions from the applicant to proceed. At about this point, junior counsel also had glandular fever which contributed to the delay. There was then some delay in the preparation of submissions as a result of senior counsel being on extended leave overseas. Mr Katsoolis's affidavit states that the first notice of appeal was filed on 8 October 2023 but the stamped document indicated it was filed on 11 October 2023. The progress of the appeal was then delayed awaiting the outcome of the High Court appeal in Roder. As noted above, a later notice of appeal was filed on 2 July 2024.
3. The general principle to be applied in determining whether to grant leave to file the application for leave to appeal out of time is that the wide discretion conferred on the Court of Criminal Appeal under s 10(1)(b) of the Criminal Appeal Act and r 3.5(5) of the Supreme Court (Criminal Appeal) Rules is to be exercised by consideration of what the interests of justice require in the particular case: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [30] (French CJ, Hayne, Bell and Keane JJ); Gould v R [2023] NSWCCA 103 at [67] (Bell CJ, with Rothman and Garling JJ agreeing); 377 FLR 26.
4. The Crown did not oppose with any vigour, if at all, leave being granted. Furthermore, the grounds raised are clearly arguable and, in relation to the conviction appeal, of some potential wider significance.
5. In all the circumstances, it is appropriate to grant leave, pursuant to s 10(1)(b) of the Criminal Appeal Act and r 3.5(5) of the Supreme Court (Criminal Appeal) Rules, to make the application for leave to appeal out of time.

Grounds of appeal

1. The applicant's grounds of appeal were formulated as follows: "Conviction appeal Ground 1: The trial judge erred in his directions on tendency reasoning. Sentence Appeal Ground 1: The sentencing judge erred in nominating indicative prison sentences for offences for which his Honour did not think it appropriate to fix any prison sentence. Ground 2: His Honour erred in the manner in which he determined to fix the ultimate aggregate sentence."

The nature of the ground of appeal

1. The ground of appeal relied upon to contend that the applicant's convictions should be set aside is briefly formulated. It alleges error in the trial judge's directions on tendency reasoning but does not identify any particular error. Nor is the error stated to be one which amounted to a "wrong decision on any question of law". Although a number of complaints about, or errors in, aspects of the tendency directions are identified in the applicant's written submissions, none of these is said to involve a "wrong decision on any question of law". In addition, a draft of the proposed tendency directions was provided to the parties by the trial judge and senior counsel appearing for the applicant at trial sought a very limited number of amendments, which were effectively incorporated by the trial judge into his summing up. The impugned aspects of the tendency direction were not given following a request to the trial judge for such directions nor did the trial judge decline to give a redirection in any relevant respect at the request of the applicant's trial counsel. In these circumstances, there does not appear to be a "wrong decision on a question of law" relevantly made by the trial judge in relation to the tendency direction: Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62 (Huxley) at [42] (Gordon, Steward and Gleeson JJ); 98 ALJR 62.
2. The applicant's ground of appeal can be understood as being based on there being a miscarriage of justice by directions to the jury which falls within the third limb of s 6(1) of the Criminal Appeal Act. Nonetheless, even if the ground of appeal should also be understood as involving a misdirection which can be characterised as a wrong decision on a question of law within the second limb, essentially the same principles apply, as Gordon, Steward and Gleeson JJ explained in Huxley at [42]: "These principles concerning the approach to a misdirection of law apply in the same way whether the misdirection is characterised as an 'error of law', as a 'miscarriage of justice', or as a 'wrong decision of any question of law'. With regard to this last category, '[a] "wrong decision of any question of law" includes misdirections on matters of substantive law as well as misdirections on matters of adjectival law'."
3. Expressed at a high level of abstraction, the applicable general principle is that there will be a miscarriage of justice as a result of the trial judge's directions to the jury if the directions deflected the jury's attention from the need to be persuaded beyond reasonable doubt of the accused's guilt before returning a verdict of guilty: Huxley at [40]. In determining whether there has been such a miscarriage, it is necessary to consider the whole of the judge's summing up to the jury. In Huxley at [41], Gordon, Steward and Gleeson JJ held: "Accordingly, '[i]n every case, the ultimate question must be whether, taken as a whole, the judge's instructions to the jury' deflected the jury 'from its fundamental task of deciding whether the prosecution proved the elements of the charged offence beyond reasonable doubt'.[footnote: Hargraves (2011) 245 CLR 257 at 277 [46]] The plurality emphasised that '[w]hether there has been on any ... ground whatsoever a miscarriage of justice must always require consideration of the whole of the judge's charge to the jury'.[footnote: Hargraves (2011) 245 CLR 257 at 277 [46]]."

Leave to appeal required

1. It was not in dispute that the conviction ground of appeal was not one which involved a question of law alone and, accordingly, leave to appeal was required in respect of that ground of appeal, under s 5(1)(b) of the Criminal Appeal Act.
2. Furthermore, in the circumstances touched upon above and explained below, the complaints about, or errors in, the directions on tendency evidence now raised on appeal were not the subject of any objection by counsel before the trial judge. Consequently, leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) was also required for this ground of appeal to be relied on.

The complaints or errors

1. The complaints about, or errors in, the directions concerning tendency evidence relied on by the applicant were identified in general terms as being "whether the directions were adequate and whether they invited impermissible modes of reasoning". [2]
2. As set out in the applicant's written submissions and developed in oral submissions, the complaints or errors were identified more specifically as follows: 1. The tendency directions focused extensively on determination of what conduct the jury were satisfied had occurred in aid of establishing one or more of the asserted tendencies and explicitly contemplated proof at a lower standard than beyond reasonable doubt and this could not be sustained in light of what was said by the High Court in Roder at [37]; [3] 2. The statement in Roder that the jury should not be directed or invited to make intermediate findings in respect of charged conduct meant that a tendency such as that asserted in the second tendency, which included reference to particular conduct such as sexual touching and sexual assault, exacerbated the problem of emphasising in the tendency direction making findings in relation to charged conduct, and led to directions which risked confusing the jury and which did not conform to the simplified approach referred to in Roder; [4] 3. The directions displayed an erroneous approach, emphasising making findings as to both charged and uncharged conduct as the first step and effectively requiring a form of circular reasoning involving proof of underlying counts by way of satisfaction at some indeterminate level and carrying those findings through to an inference about the four tendencies, then feeding this back into an assessment of guilt in respect of charged conduct; [5] and 4. Since the third tendency asserted was that the applicant had a sexual interest in AW and the fourth tendency was that he had a sexual interest in SM, the trial judge should have directed, but did not direct, that only the evidence of AW could be relied on to establish the third tendency and only the evidence of SM could be relied on to establish the fourth tendency. [6]
3. The complaints or errors relied on by the applicant, except for the last, raise, in essence, the same general issue of whether the directions in the present case led to a miscarriage of justice in light of the High Court's reasoning in Roder and the Court's statement at [37] that a single tendency evidence direction should be given and should not direct or invite the jury to make findings in respect of charged conduct as a basis for then considering whether the alleged tendency or tendencies had been established.
4. By way of contrast, the last complaint or error deals with an issue particular to the form of the third and fourth tendencies, namely whether evidence other than the evidence of the relevant complainant can be relied on to establish the tendency which is limited to a sexual interest in one complainant.
5. In order to consider these complaints or errors, it is useful to review in some detail the relevant directions given by the trial judge and how they came about. Against that background, it will be appropriate to consider, first, the general issue of whether the content of the tendency directions in the present case led to there being a miscarriage of justice, in the circumstances and in light of Roder, and, then, to consider the particular issue concerning the third and fourth tendencies.

The tendency directions

1. The tendency notice was given by letter dated 31 July 2020 and the asserted tendencies have been quoted in [11] above. It was accepted at both trials that the evidence identified in the notice was admissible as tendency evidence in support of those tendencies.
2. As to the directions to be given to the jury in relation to tendency evidence, Mr Dennis of Senior Counsel, who appeared for the applicant at trial, initially wrote in written submissions headed "Trial directions concerning tendency evidence" the following: "TENDENCY DIRECTIONS - EVIDENCE OF A SINGLE COMPLAINANT ONLY The accused does not take issue with standard directions regarding tendency evidence as set out in the Bench Book as set out at [4-227] with respect to the issue of tendency evidence when considered with respect to a single complainant on a 'stand alone' basis. TENDENCY DIRECTIONS - EVIDENCE OF ONE COMPLAINANT UTILISED AS TENDENCY IN SUPPORT OF THE OTHER COMPLAINANT [After referring to The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [86]]It is submitted that on the facts of the present matter there is a significant possibility that the jury will reason that specific counts or uncharged acts are an indispensable link in their chain of reasoning in making findings adverse to the accused with respect to one complainant when determining matters concerning the other complainant."
3. At some point before the summing up, the trial judge ruled on the question of the appropriate standard of proof to be applied for tendency evidence. His Honour apparently provided written reasons for that ruling on 3 September 2021, but a copy of the ruling or the reasons was not included in the material on this appeal. The transcript of the proceedings on 3 September 2021 records that the trial judge accepted that "tendency is a species of circumstantial reasoning" and ruled that "the jury will not be directed to apply the standard of proof of the balance of probabilities when determining if the tendency evidence is established, but will be directed in the manner as to the finding of non-essential circumstantial facts". There was no appeal in respect of this ruling.
4. Notwithstanding what was stated in his written submissions, on 26 August 2021, Mr Dennis informed the trial judge: [7] "I've modified my position since yesterday, your Honour, I no longer press the submission concerning 142 of the Evidence Act. In terms of intra complainant directions on tendency, I'm content with the bench book."
5. Later on that same day, after further discussion between counsel and the trial judge, the issues concerning the tendency directions were apparently largely resolved as follows: [8] "HIS HONOUR: Yes. But the tendency process allows them to consider it all together, so there's another paradox. DENNIS: The standard directions for tendency, they say enough to keep me happy. HIS HONOUR: Well, I have pretty much, in the draft that I have got going, just adopted the current bench book. DENNIS: I am happy with that your Honour."
6. On 27 August 2021, the trial judge's draft tendency direction was marked MFI 9 and Mr Dennis noted that he had made some suggestions for changes to that document. [9] From the evidence of Ms Kim, [10] it does not appear that these changes, which were very minor, had any significance for the purposes of the present proceedings. As had been indicated, the trial judge's draft tendency direction and the directions actually given were based on the suggested tendency direction in the Judicial Commission's Criminal Trial Bench Book, at [4-227].
7. Although there was some confusion on the issue during the trial, it was accepted on this appeal that s 161A of the Criminal Procedure Act 1989 (NSW) was in force at the time of, and applied in respect of, the applicant's trial.
8. During his summing up on 30 August 2021, the trial judge gave directions concerning tendency evidence, with only very minor variations from what was in MFI 9 including Mr Dennis's suggestions. These directions are quoted in full below with the words taken from the Bench Book suggested tendency evidence direction underlined. [11] "Now I am going to deal with the tendency evidence that I referred to earlier. Part of the Crown case is that the accused has four identified tendencies. The purpose of the following directions is to direct you as to what that means, and what the Crown needs to prove to establish a tendency, and if it is established, what use you can make of it in your reasoning when determining whether or not the Crown has met the high onus it bears of beyond reasonable doubt in respect of any and each of the charges. The four tendencies alleged are: 1. To have a sexual interest in females aged from 16 to 19 years of age; 2. To act on that alleged sexual interest by engaging in inappropriate sexual touching, as well as indecency and sexually assaulting females in that age bracket who the accused was exercising authority and control over as their employer, or by reason of supervising them in their work experience; 3. To have a particular state of mind, namely a sexual interest in [AW]; and 4. To have a particular state of mind, namely a sexual interest in [SM]. The Crown says you would be satisfied that the accused had these tendencies because of his conduct as alleged in each of the alleged offences on the indictment, and also because of the evidence of Brittany Hetherington, so far as that evidence went to touching, including kissing. The Crown relies on the tendencies it says are established by all of this evidence in support of making out the charges relating to both complainants. For example, the Crown says in respect of count 1 that it relies on the evidence before you in relation to counts 2 right through to 31 as well as the evidence from Brittany Hetherington to establish those tendencies. If you accepted those tendencies are established by that other evidence, then the Crown relies on that evidence to support the making out of count 1. I will come back to that and summarise it more shortly. 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 that the Crown alleges, that is in respect of the tendency evidence. In doing so, you do not consider each of the acts alleged for the tendency purpose in isolation. You should consider all the evidence and decide what conduct you are satisfied occurred. If you decide that all, or at least some of the conduct relied upon for this purpose occurred, you then need to consider whether it enables the inference to be drawn that the accused had one or more of the tendencies stated above. Firstly, you go through and see what facts you are satisfied of in this regard, and then you have a look at what you are satisfied has occurred, and consider whether that enables one or more of the four inferences I have just set out to be drawn. You will recall the direction I gave you about the care that needs to be applied to the drawing of inferences. I directed you to consider whether there might be alternative explanations for the evidence. I directed you that you should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. You should bear in mind those directions when you are considering this part of the evidence and what tendencies you are satisfied or not satisfied are established. If you are not satisfied that any of the conduct the Crown relies upon occurred, then there is no basis upon which the tendency could be inferred. In these circumstances you must put the whole issue of tendency to one side and confine your consideration to the other parts of the Crown's case. If you find that the accused did have the tendencies, or one or more of them, then you can use that in considering whether it is more likely he committed the specific offences with which he is charged. However, it is essential that you consider in relation to each charge whether the accused acted in a particular way, or had that particular state of mind on that specific occasion. 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 more likely the accused conducted himself in the way the Crown alleges on any of the occasions that are the subject of the charges. That is the only way any of the alleged tendencies of the accused may be used. Ultimately you must decide whether the specific offences with which the accused has 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 would also include such of the tendencies alleged by the Crown that you are satisfied have been established, one or more of them. The Crown also relies on what is called complaint evidence, which I will address below and give you directions about. Just to continue on tendency evidence, and I will come to complaint later, tendency evidence cannot be used other than in the way I have just described. In particular in respect of the evidence of Brittany Hetherington relied upon as tendency, part of what I am saying is that you must not substitute the conduct of the accused on some occasion for the conduct that is relied upon by the Crown to prove a particular charge. This extends also to the tendency evidence constituted by the other evidence of the other charges. Put simply, you cannot and must not reason that because you find one of the charges established, or some of the tendency evidence established, therefore the accused committed some or all of the other charges alleged. That is not a permissible way of reasoning. The evidence the Crown relies upon to establish that the accused had this tendency is of a type that might provoke people to have an emotional response, because it might be regarded as distasteful for a person to behave that way. You must be careful to avoid allowing any emotional response or prejudice to distract you from a calm and objective assessment of this issue. 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 in the indictment, and I am having in mind here the evidence of Brittany Hetherington. If you are not satisfied that an incident that is not the subject of a charge occurred, then the evidence relating to it, that is the non charged allegation, should be put completely aside because there is no other issue in the case to which it is relevant. The Crown says that if you are satisfied of the accused acting as alleged in respect of the other accounts, and/or of the way he conducted himself with Brittany Hetherington, however you may find that to be, then the tendencies it says are established. If you agree that evidence does establish those tendencies and you need not be satisfied beyond reasonable doubt about that, but you do need to be satisfied that it occurred, then you can take that tendency into account in determining the likelihood of the accused committing the charge you are considering. The accused's argument is to say that the evidence of Brittany Hetherington rebuts the assertion that there is any such tendency. The accused argues that Brittany Hetherington's evidence was of similar behaviour but short of offending. It was of touching, coming into the bedroom, kissing, including on the lips, and of getting under the covers, none of which Brittany Hetherington considered inappropriate. The accused says this rebuts the tendency and shows the non-offending allegations relating to Brittany Hetherington, show him to be a person who touches people in that way, but that it is not sexual. The accused also relies upon the evidence of April Spriggs, Elizabeth Northwood and Gemma Rheinberger, as well as that of Brittany Hetherington, as being young women in the same age group of 16 to 19 who worked or spent significant time with the accused, and gave evidence that they did not consider his behaviour towards them was in any way inappropriate. As to the evidence of the offending the accused says that you would not be satisfied that conduct occurred, so that the tendency is not established by that evidence. There is one aspect of this tendency direction that needs your careful attention. In order to convict the accused of any of the charges, and take for example there is no significance in which count I am choosing, I am just going to choose count 1, but in order to convict the accused of any of the charges, for example count 1, you need to be satisfied beyond reasonable doubt of the evidence of the complainant, in that case [AW], of the actual offending conduct for that count. Bear with me. At the same time when considering a count other than count 1, in order to rely on the evidence of count 1 taken with the other evidence to be tendency evidence that may assist in determining whether, for example count 2 occurred, you do not need to be satisfied beyond reasonable doubt as to the allegations of count 1, but you need to be satisfied that it occurred. One reason for this lesser standard when considering whether the matter can go to establishing a tendency as opposed to proving the offending is that the evidence of tendency cannot by itself prove the charge against the accused, and that is for the simple reason that it is not the charge that is being considered by you at the time. In practical terms what this means is that if you were satisfied as to the tendency evidence establishing the tendency, when you then come to consider that same material as a charge, you would then need to apply the high standard of beyond reasonable doubt. Beyond reasonable doubt applies when you are considering the alleged conduct said to constitute the charge. It does not apply when you are considering the same material being relied upon as being a tendency, and if you were satisfied of it as tendency, without being beyond reasonable doubt, but still satisfied of it, then if you are satisfied it shows a tendency, you can take it into account with everything else when you are determining whether that count that was being considered was made out. It is convenient here to direct you as to what you cannot use the tendency evidence for. Tendency reasoning, and here I include the evidence of the tendency witness Brittany Hetherington, which is noted above is also relied on by the accused, together with other evidence to rebut the tendencies alleged, has only been placed before you for the purpose of seeking to establish the tendency asserted by the Crown against the accused, and such reasoning must never be used in any other way. This might be a little bit repetitive of what I said before, but it is important that you do not make the mistake of approaching it in the substitution basis. What I mean by that is this. It would therefore be completely wrong to allow tendency reasoning to support a process of reasoning that because the accused committed one or more acts of a sexual or indecent nature towards one young female person, that he is in some way a person of bad character, and for that reason he must have committed the offences charged. You cannot punish the accused for other conduct attributed to him by finding him guilty of the charges in the indictment because of what you conclude about that other conduct. That is not the purpose of tendency reasoning, and you must not reason in that way. You cannot use tendency reasoning in any way prejudicial to the accused, unless you accept the Crown's argument that the evidence does disclose the tendency alleged, and that it does make it more likely that the accused committed the offences charged against him. Furthermore, evidence relied upon for the purpose of establishing a tendency on the part of the accused, and in turn to provide the foundation for tendency reasoning, must not be used to reason in an automatic way, namely that the existence of the asserted tendency must mean that the accused acted in accordance with that tendency on the occasions alleged in the indictment. It may mean that he did, but that is not an automatic result. For each count you need to calmly and objectively consider whether or not the accused in fact acted in accordance with that tendency by committing the particular acts alleged. I remind you that before the accused could be convicted of any offence alleged on the indictment, I have told you that you must be sufficiently satisfied as to the truthfulness and essential accuracy of the complainant named within that count, whether it be [AW] or [SM]. Even if you are satisfied as to the existence of a tendency or tendencies alleged by the Crown at the relevant times, that fact may lend support to evidence of a complainant but could never be a replacement for a complainant should you all form a view that she has been deliberately dishonest and/or unreliable in all or part of her evidence. You should also bear in mind that tendency reasoning is just one part of the way the Crown seeks to prove its case against the accused. Only give it such weight as you think it deserves in the context of the evidence before you." (Underlining added.)
9. After the trial judge had given his directions to the jury on tendency evidence, counsel for the applicant did not seek any correction or redirection in that regard. Nor was any issue with any aspect of the directions raised at the end of the summing up.

Was there a miscarriage of justice as a result of the tendency directions in light of Roder?

1. Roder involved an accused charged with 27 child sexual offences committed against two complainants. The Crown relied on evidence of the 27 charged acts (or conduct associated with those acts) and six uncharged acts to establish asserted tendencies on the part of the accused to have "an improper sexual interest" in the complainants and a willingness to act on that interest "by engaging in sexual activity with them" in certain circumstances. The accused conceded that the evidence of both the charged and uncharged acts was cross‑admissible as tendency evidence. Prior to the trial, a ruling was sought concerning the form of directions to be given about the standard of proof to be applied when addressing the evidence of the charged acts for the purpose of determining whether the alleged tendencies were established. The trial judge's ruling on that issue was appealed to the Victorian Court of Appeal, and the High Court granted special leave to appeal from the Court of Appeal's decision.
2. The High Court commenced its judgment in Roder by noting that trial judges in New South Wales should not ordinarily direct a jury that, before they may act on evidence of uncharged acts adduced to support an alleged tendency of the accused pursuant to s 97 of the Evidence Act 1995 (NSW), they must be satisfied of the proof of the uncharged acts beyond reasonable doubt, citing The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 (Bauer) at [86] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ): Roder at [1]. An exception to this position was said to arise if there is a significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt. [12]
3. The issue in Roder was, in essence, whether the same position applied in relation to evidence of charged acts relied on to support an alleged tendency on the part of the accused. The High Court held that it did: Roder at [2].
4. The concern which had led the Victorian Court of Appeal to the opposite conclusion in Director of Public Prosecutions v Roder (a pseudonym) [2023] VSCA 262 was that, unless the jury were instructed that they had to be satisfied beyond reasonable doubt of the existence of any charged act in order to use it for tendency purposes, the jury may engage in "circular reasoning" and apply a "less rigorous standard of proof to the charges on the indictment" than beyond reasonable doubt: Roder at [25]. This type of circular reasoning was identified as arising where the jury were directed in terms that first invited them to apply a lesser standard in finding whether the charged acts took place for the purpose of determining whether the alleged tendency was established, and then instructed them to determine whether each charge was proved beyond reasonable doubt: Roder at [25].
5. The High Court generally adopted, at [26]-[27] of Roder, the approach of this Court to the issue of circular reasoning in the context of tendency evidence in JS v R [2022] NSWCCA 145 (JS) at [43] (Basten AJA, with Hamill and Dhanji JJ agreeing). The High Court held, in particular, at [27]: "[[43] of JS] correctly identifies the alleged tendency as an intermediate fact that is to be proved in its own right and then deployed in aid of the proof of each charge. For a tribunal of fact to find that an alleged tendency has been proved to a lesser standard by relying on, inter alia, direct evidence of charged acts, and then deploying that tendency in determining whether the charged acts have been proved beyond reasonable doubt, does not involve circular or incoherent reasoning. Instead, it simply means that the jury may consider the same evidence 'at different stages of its deliberations with a different onus of proof and for a different purpose'."
6. The Court then went on in Roder, at [28], to hold that the concern of circular reasoning leading to a potential undermining of the required standard of proof should be addressed, not by instructing the jury that they had to be satisfied beyond reasonable doubt of the existence of any charged act in order to use it for tendency purposes, but rather by giving a tendency direction that: identified the evidence said to support the alleged tendency; invited the jury to consider whether that tendency was established; and, avoided inviting the jury to make findings as to the charged conduct when considering whether the tendency was established. It was noted in effect that other parts of the summing up should deal with the onus and standard of proof in relation to the charged conduct.
7. After explaining, in Roder at [31]-[36], why other suggested approaches to tendency directions designed to address the concern of circular reasoning and potential undermining of the standard of proof should be rejected, the High Court concluded at [37]: "… it follows from the nature of tendency evidence that, in a case where the prosecution relies on both uncharged and charged acts to establish an alleged tendency of the kind under consideration here, a single separate tendency direction should ordinarily be given. Such a direction should not direct or invite the jury to make findings in respect of charged conduct, but instead should indicate the evidence relied on to support the alleged tendency, direct the jury to consider whether they are satisfied of the alleged tendency and then advise the jury that, if they are so satisfied, they can use that tendency in considering whether it is more likely that the accused committed the specific offences with which he or she is charged. Careful directions should be given to the jury as to the requisite onus and standard of proof as well as to the contents of the elements of the offence and the need for separate consideration of each charge." (Footnotes omitted.)
8. In this context, reasoning will be "circular" if, as Basten AJA explained in JS at [43]: "the Crown, in a linear process, sought to prove the commission of an offence (at a standard of proof less than beyond reasonable doubt), and then relied on that finding to prove the tendency, and then relied on the tendency to prove the offence".
9. The concern is that such circular reasoning has the potential to undermine the necessity for proof of each charge beyond reasonable doubt: Roder at [25] and [26]. This concern is based on the perception that once a jury has accepted, applying a lesser standard of proof, that charged conduct by the accused has occurred for the purposes of determining whether the tendencies asserted exist, they will tend also to accept that the conduct has occurred when considering whether the accused is guilty of the charge in respect of that conduct without considering, adequately or at all, whether the evidence as a whole establishes that the conduct has been proved beyond reasonable doubt.
10. From this understanding of the reasons for the approach in [37] of Roder, it follows that, if a trial judge's directions to the jury included a direction to engage in the form of circular reasoning identified in JS, it might ordinarily give rise to a miscarriage of justice as the jury's attention might thereby be deflected from the need to be persuaded beyond reasonable doubt of the accused's guilt on a particular charge before returning a verdict of guilty of that charge.
11. Whether there is a miscarriage of justice on this basis in a particular case will, however, depend on a consideration of the summing up as a whole in the context of the trial: Huxley at [41]. If the summing up as a whole ensured that there was no reasonable possibility or risk of the jury's attention being so deflected and the required standard of proof not being applied, there would be no miscarriage on that basis. An illustration of this is provided by what occurred in JS itself.
12. In JS, JS had been charged and convicted on two counts of sexual intercourse with a child under 10 years. Part of the Crown case was that he had tendencies to have a sexual interest in the victim and a willingness to act on that interest. In support of these tendencies, the Crown relied on evidence of the charged acts as well as an uncharged act.
13. On appeal, JS challenged his conviction on two grounds, one of which contended that the tendency direction given by the trial judge in the summing up involved circular reasoning of the type referred to above thus undermining the standard of proof. The gravamen of the challenge to the tendency direction was described, in JS at [35], as being that: 1. the jury were directed that they did not need to be satisfied beyond reasonable doubt as to each of the three items of tendency evidence before being entitled to take it into account in determining whether, with respect to each count, they were satisfied beyond reasonable doubt of guilt; and 2. the tendency direction undermined the general direction as to proof beyond reasonable doubt with respect to each offence charged in that, with respect to the charged conduct, the jury was being directed to address the same factual circumstances according to two different standards of proof.
14. In considering these contentions, Basten AJA (Hamill and Dhanji JJ agreeing) held: 1. "in principle it will usually be correct (and was correct in the present case) to say that, in assessing one charge, the jury could take into account the evidence of the activity said to constitute the other charge, without being satisfied at that point that it was proved beyond reasonable doubt": JS at [39]; 2. "[n]evertheless, [JS] was correct to note that such a direction would be apt to undermine the general directions concerning proof beyond reasonable doubt in respect of each charge. That danger calls for some care in formulating directions; it does not undermine the general principle": JS at [40]; 3. "[t]he important direction is that having weighed all the relevant evidence, the jury must be satisfied beyond reasonable doubt that each element of each charge has been established": JS at [41].
15. In order, in effect, to avoid impermissible circular reasoning and potential undermining of the standard of proof, Basten AJA held, JS at [43] in a passage adopted and emphasised by the High Court in Roder at [26]: "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".
16. The tendency direction in JS was not quoted in full but it did include the passage set out in JS at [42] (with the wording from the Criminal Trial Bench Book suggested tendency direction underlined): "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 on those occasions. In doing so you do not consider each of the acts in isolation: you should consider all the evidence and decide what conduct you are satisfied occurred. Although you are looking at the two episodes of conduct that are the subject of the charges, you are not, in this exercise, considering whether those episodes of misconduct have been proven beyond reasonable doubt… [Y]ou do not consider each of these episodes of conduct in isolation but you look at them collectively to decide what conduct you are satisfied occurred for the purposes of tendency reasoning. You consider all three of the episodes of conduct within this context and consider whether the tendency for which the Crown contends has been established. It does not follow from this that you are satisfied beyond reasonable doubt of the guilt of the accused; it is simply part of the process of reasoning along the pathway toward whether or not you accept beyond reasonable doubt the evidence of the complainant with regard to the two charges." (Underlining added.)
17. Thus, the trial judge directed the jury (in conformity with the suggested direction in the Bench Book) to determine "what conduct you are satisfied occurred" for the purpose of determining whether the tendency was established and in this process the jury did not have to consider whether the charged acts had been proved beyond reasonable doubt.
18. Although the jury was directed to "consider whether the tendency for which the Crown contends has been established", they were also effectively directed to engage in circular reasoning in the sense described above with the potential for undermining the standard of proof by being told "[a]lthough you are looking at the two episodes of conduct that are the subject of the charges, you are not, in this exercise, considering whether those episodes of misconduct have been proven beyond reasonable doubt… [Y]ou do not consider each of these episodes of conduct in isolation but you look at them collectively to decide what conduct you are satisfied occurred for the purposes of tendency reasoning…". In these respects, the directions were, to a certain extent, similar to the directions in the present case.
19. Notwithstanding this approach taken by the trial judge in JS, which was contrary to the "preferrable" direction referred to in JS at [43] and the approach in Roder at [37], it was held in JS at [44] that there was "no risk in [JS] that the onus and standard of proof were not understood and properly applied" because of: "[the trial judge's] careful directions as to the onus and standard of proof, the need for separate consideration of each count, the elements of the offences, the need to accept the evidence of the complainant as to the occurrence of each count, and the direction that the tendency, if proved, did not prove guilt of the offences but was 'simply part of the process of reasoning along the pathway towards whether or not you accept beyond reasonable doubt the evidence of the complainant with regard to the two charges' …".
20. Thus, in JS the risk of a miscarriage of justice because of the terms of the tendency direction was avoided given the terms of the other directions in the summing up. While some of the areas of the summing up where the careful directions were given were identified by Basten AJA in the passage at [44] of JS, the summing up as a whole was not reproduced.
21. Turning now to the tendency directions in the present case, it should be noted that the trial took place prior to, and the trial judge did not have benefit of, the High Court's judgment in Roder or this Court's judgment in JS. It may be expected that, in future, trial judges' directions concerning tendency evidence (and the Criminal Trial Bench Book suggested directions in that regard) will take into account, and comply with, the approach set out in Roder at [37].
22. The applicant submitted, in effect, that aspects of the tendency directions were contrary to the approach referred to in Roder, of not directing or inviting the jury to make findings in respect of charged conduct for the purposes of considering whether any of the tendencies was established. The impugned aspects included the directions: to "decide whether he did in fact conduct himself in the way that the Crown alleges" and "consider all the evidence and decide what conduct you are satisfied occurred". It was effectively said that, whatever the jury made of such directions, they would "carry forward" satisfaction about charged conduct for tendency purposes to proof of the charged conduct at a lower standard of proof.
23. Substantially the same point was made concerning the directions that: "If you agree that evidence does establish those tendencies and you need not be satisfied beyond reasonable doubt about that, but you do need to be satisfied that it occurred, then you can take that tendency into account in determining the likelihood of the accused committing the charge you are considering."; and "Bear with me. At the same time when considering a count other than count 1, in order to rely on the evidence of count 1 taken with the other evidence to be tendency evidence that may assist in determining whether, for example count 2 occurred, you do not need to be satisfied beyond reasonable doubt as to the allegations of count 1, but you need to be satisfied that it occurred."
24. As to the direction "[i]f you are not satisfied that any of the conduct the Crown relies upon occurred, then there is no basis upon which the tendency could be inferred. In these circumstances you must put the whole issue of tendency to one side and confine your consideration to the other parts of the Crown's case", it was contended in substance that it caused confusion in relation to direct evidence of charged acts and had two potential effects: (1) if any of the charged conduct was found established at the lower standard of proof, the jury would tend to "hang on to it" when they came to determine whether the charge was proved beyond reasonable doubt; and, (2) the jury might be encouraged not to reject the finding that the conduct occurred at the point of considering whether the tendency was made out because to reject the finding might require them to put the whole issue of tendency to one side and effectively preclude consideration of the whether the charge had been proved when they came to give separate consideration to the relevant count.
25. We accept that the directions on tendency evidence in the present case are not an example of the simpler approach referred to in Roder which emphasises the tendency as the intermediate fact to be found rather than focusing on the conduct said to support the tendency. In addition, aspects of the directions specifically identified by the applicant may give rise to a risk of circular reasoning causing the jury to apply or accept a reduced standard of proof when determining whether the accused was guilty of charged conduct, if they had already determined to accept that the charged conduct had been engaged in for the purposes of considering whether the accused had the tendencies asserted. Thus, there was the potential for these directions to give rise to a miscarriage of justice in the sense explained in Huxley. A miscarriage would be avoided, however, if the summing up taken as a whole effectively ensured that there was not a risk of the jury failing to apply the required standard of proof to the determination of whether the accused was guilty of any relevant count, as occurred in JS.
26. In addition, there is a further passage in the tendency direction which could cause confusion: "[i]f you are not satisfied that any of the conduct the Crown relies upon occurred, then there is no basis upon which the tendency could be inferred. In these circumstances you must put the whole issue of tendency to one side and confine your consideration to the other parts of the Crown's case."
27. As was observed by Beech-Jones CJ at CL in similar but not identical circumstances in Decision Restricted [2022] NSWCCA 259 at [68]: "if the jury could not find that any of those acts occurred then they would not just put aside the suggestion that the applicant had the tendency alleged, they were obliged to find her not guilty as then there would be nothing left of the Crown case."
28. Notwithstanding the potential for confusion in relation to tendency evidence of charged acts, in our view, the summing up as a whole made it abundantly clear that if the evidence of particular charged conduct relied on as tendency evidence as well as direct evidence of the charged conduct was not accepted, the applicant must be found not guilty in respect of the relevant charge.
29. The applicant submitted that, the tendency directions in the present case were lengthy and incapable of being readily understood by jurors who were simultaneously thinking about whether or not they were satisfied of the counts in question. Furthermore, it was said in substance that the undermining of the standard of proof as a result of being directed to make findings as to charged conduct for the purposes of considering whether the asserted tendencies were established was exacerbated in the present case by: (a) the specificity of the types of conduct in the second tendency, which required the jury to focus on particular charged acts by the multiplicity of tendencies asserted by the Crown; and, (b) by the length and complexity of the directions.
30. As we understood it, the applicant submitted that the other aspects of the summing up did not adequately remove the risk of the jury being deflected from their fundamental task of deciding whether the prosecution proved the elements of each offence charged beyond reasonable doubt. Thus, it was effectively submitted that the directions to the jury led to there being a miscarriage of justice.
31. In our view, these submissions should not be accepted. The tendency directions did not give rise to a miscarriage of justice in the circumstances of this case. The summing up read as a whole more than adequately instructed the jury so that, notwithstanding the length and problematic aspects of the tendency directions, the jury would not have been deflected from their fundamental task of determining guilt beyond reasonable doubt. We have reached this conclusion for a number of reasons.
32. First, it was not contended that there was any specific misstatement of the law in the summing up, including in relation to tendency evidence.
33. Secondly, the trial judge's directions in relation to tendency evidence were consistent with the principle in Bauer and the conclusion in Roder that ordinarily a jury should not be directed that evidence of charged or uncharged acts adduced to support the asserted tendencies are required to be proved beyond reasonable doubt when determining whether the tendencies have been established. Moreover, in the present case, none of evidence of charged or uncharged acts, when relied upon as tendency evidence, was indispensable to reaching a verdict of guilty in respect of any charged act. This followed from the fact that there was direct evidence of each charged act from the relevant complainant as well as complaint evidence and, in some cases, supporting evidence such as a video recording. Accordingly, s 161A(3) was not engaged, on substantially the same basis as was explained in Astill v R [2024] NSWCCA 118 (Astill) at [56]-[57] (Bell CJ, with Stern JA and Button J agreeing).
34. Thirdly, the tendency directions not only identified the tendencies as intermediate facts to be proved in their own right and then deployed in aid of the proof of each charge, as referred to in Roder at [27] but also included directions in compliance with what was said in Bauer at [86], namely: "The trial judge should … stress that it is not enough, however, to convict the accused that the jury may be satisfied of the commission of the uncharged acts or that they establish that the accused had a sexual interest in the complainant, on which the accused had acted in the past; it remains that the jury cannot find the accused guilty of any charged offence unless upon their consideration of all of the evidence relevant to the charge they are satisfied of the accused's guilt of that offence beyond reasonable doubt."
35. At the beginning of the tendency evidence directions in the summing up, the trial judge covered those matters as follows: "The purpose of the following directions is to direct you as to what that means, and what the Crown needs to prove to establish a tendency, and if it is established, what use you can make of it in your reasoning when determining whether or not the Crown has met the high onus it bears of beyond reasonable doubt in respect of any and each of the charges."
36. Later, the trial judge also instructed the jury that acceptance of a tendency would not be sufficient by itself to find a charge had been proved, as follows: "However, it is essential that you consider in relation to each charge whether the accused acted in a particular way, or had that particular state of mind on that specific occasion. 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 more likely the accused conducted himself in the way the Crown alleges on any of the occasions that are the subject of the charges. That is the only way any of the alleged tendencies of the accused may be used."
37. Fourthly, as part of the tendency evidence directions, the trial judge gave a specific example of how the standard of proof beyond reasonable doubt applied: "In order to convict the accused of any of the charges, and take for example … count 1, … you need to be satisfied beyond reasonable doubt of the evidence of the complainant, in that case AW, of the actual offending conduct for that count. … At the same time when considering a count other than count 1, in order to rely on the evidence of count 1 taken with the other evidence to be tendency evidence that may assist in determining whether, for example count 2 occurred, you do not need to be satisfied beyond reasonable doubt as to the allegations of count 1, but you need to be satisfied that it occurred. One reason for this lesser standard when considering whether the matter can go to establishing a tendency as opposed to proving the offending is that the evidence of tendency cannot by itself prove the charge against the accused, and that is for the simple reason that it is not the charge that is being considered by you at the time. In practical terms what this means is that if you were satisfied as to the tendency evidence establishing the tendency, when you then come to consider that same material as a charge, you would then need to apply the high standard of beyond reasonable doubt. …".
38. Although this passage went well beyond the simple form of direction set out in Roder at [37] and verged on the other types of directions considered but rejected by the High Court as the preferred or usual means of addressing the problem of circular reasoning and undermining of the standard of proof, it was not said to contain any misstatement of law. Indeed, it effectively pre-empted a question from the jury as to whether they had to be satisfied beyond reasonable doubt of a charged act before it could be used to infer that the tendency existed. Furthermore, the last paragraph of the passage quoted appropriately emphasised the tendency as an intermediate fact and reiterated the standard of proof in relation to proof of each charge.
39. Fifthly, as was found to have been the case in JS, the summing up in the present case included careful directions as to: the standard of proof beyond reasonable doubt and the onus on the Crown to prove the elements of each charge beyond reasonable doubt; the need for separate consideration of each count; the need to accept the evidence of the relevant complainant as to the occurrence of each count; and, the direction that the tendency, if proved, "may assist the Crown to prove the accused committed the offences, but it is not enough by itself". The trial judge in this case also specifically referred to the requirement for the charged conduct to be proved beyond reasonable doubt in the summing up when dealing with drawing inferences, when dealing with the alibi evidence, when dealing with the individual elements of each offence, when dealing with the fact that the applicant gave evidence and in various other passages. For example and without attempting to be exhaustive, the summing up included the following passages at different points: "Just going through [the elements document MFI 13], the opening paragraph I hope is apparent to you. Before an innocent person can be found guilty of an offence the Crown must prove each element of the offence beyond reasonable doubt. The essential elements or ingredients that the Crown must prove beyond reasonable doubt are set out below. The failure to prove any element beyond reasonable doubt would mean the accused is not guilty of that offence. Remember what I have told you, that you need to consider it in respect of each of the 31 counts." "You need to effectively look at each count, and say it was an indecent charge allegation, look at the elements for an indecent assault that will be set out on this document, and your task is to determine whether in respect of each count of indecent assault the Crown has satisfied you beyond reasonable doubt of those elements. The same for when the counts are of sexual intercourse without consent." "In respect of each complainant and all the witnesses you must consider their evidence and satisfy yourselves that they are a reliable witness. That is, that they are an honest witness and a witness who is accurate in vital respects. You must examine and evaluate the evidence of each complainant in light of any criticisms that have been made of it. This direction follows from the onus and high standard of proof that is placed upon the Crown. You could not find the accused guilty of the offences unless you are satisfied beyond reasonable doubt that the complainants are an honest and reliable witness in each of the charges." "Keep an open mind, as you might recall me telling you at the beginning of this trial, that you are not to make up your mind until you have heard all of the evidence and you should not really make up your mind until you have been properly directed as to the legal matters to apply to that evidence that you find is the facts to your satisfaction. When I say "to your satisfaction", that is just to the facts generally, but, in terms of the actual elements of the offending, of course, the level of satisfied has to be beyond reasonable doubt." "As you have been told, the essential elements of the Crown case … must be proven beyond reasonable doubt, or the accused must be acquitted. You must be satisfied beyond reasonable doubt that [SM] and [AW], respectively, are telling the truth as to the essential elements of each individual count in the indictment."
40. In our view, when the summing up is read as a whole, there was no realistic possibility that in this case the onus and standard of proof were not understood and properly applied by the jury. Our conclusion in this regard is reinforced by the consideration that in the present case the tendency evidence related to a mixture of charged and uncharged conduct, two complainants and an additional witness. Furthermore, the defence relied on aspects of the additional witness's evidence to support the proposition that the applicant may have engaged in conduct with young women under his supervision that some would regard as irregular, but fell short of criminal conduct. In these circumstances, the potential for impermissible circular reasoning was further reduced.
41. Since it should not be concluded that the judge's tendency directions deflected the jury from its fundamental task of deciding whether the prosecution proved the elements of each charged offence beyond reasonable doubt, there was no proper basis for finding that there was a miscarriage of justice.
42. Sixthly, although it is not appropriate to speculate on the jury's specific processes of reasoning, the fact that the jury did not convict on all counts, and in particular did not convict on all counts involving SM, is consistent with the jury not treating the tendency evidence in an unthinkingly uniform way or as allowing them to apply a lesser standard of proof than beyond reasonable doubt in respect of each charge. As was said in similar circumstances in Astill, at [61]: "The outcome of the jury's deliberations was consistent with the members of the jury not only conscientiously having discharged their duty but also understanding and following the trial judge's directions."
43. Finally, counsel for the applicant at the trial did not seek any additional directions or redirections. As explained in Astill at [62], this could be an indication that, in the context of the trial, the tendency evidence directions and the summing up as a whole were not perceived to have involved a miscarriage of justice. This consideration may be deprived of significant force in the present case, however, since the trial took place prior to the publication of the judgments in JS and Roder.
44. For these reasons, although the tendency directions given by the trial judge were not in accordance with the approach set out by the High Court in Roder at [37], we do not accept that there was, in the circumstances, a miscarriage of justice, when the tendency directions are considered in light of the summing up as a whole and the circumstances of the trial.

Was there a miscarriage of justice because of a failure to identify the relevant evidence in relation to the third and fourth tendencies?

1. The third and fourth tendencies were that the applicant had a tendency to have a sexual interest in AW and SM respectively. It was submitted by the applicant that the trial judge should have directed that only the evidence of AW could be relied on to establish the third tendency and only the evidence of SM could be relied on to establish the fourth tendency. By failing to give such directions, it was submitted the trial judge must have left the jury thinking that the whole of the evidence in the case was admissible to establish those tendencies.
2. This issue was not raised at the trial and no direction was sought as contemplated under this ground of appeal. This may have been some indication that there was no perception that, in the context of the trial, such directions were required or that a miscarriage of justice arose out of the failure to give the directions.
3. Furthermore, in our view, taking into account all the circumstances including the fact that it was an issue at trial whether the first, third and fourth tendencies were established, it was not the case that only the evidence of each complainant was relevant in relation to the third or fourth tendency specific to her. Evidence is relevant if, assuming it is accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue: Evidence Act 1995 (NSW), s 55(1). Evidence of the applicant's sexual interest in one female aged 16 to 19 with a specific relationship to him could in our view rationally affect: 1. directly the assessment of the probability of his interest in that female in that age range with that relationship to him; and 2. indirectly the assessment of the probability of his interest in another specific female in the same age range with a similar relationship to him based on his interest in females more generally in that age range with that relationship.
4. In other words, evidence of a sexual interest in AW or SM was directly relevant to whether the applicant had a sexual interest in females in the relevant age group with a similar relationship generally and thus indirectly relevant to whether he had a sexual interest in SM or AW, respectively.
5. Accordingly, we do not accept the applicant's submission that the evidence in support of the third and fourth tendencies was restricted to that of each relevant complainant. Consequently, there was no basis for the trial judge to have given a direction as contended by the applicant. There was thus no misdirection or miscarriage of justice on that basis.

Conclusion on conviction appeal and leave to appeal

1. For these reasons, we do not accept that the applicant's conviction ground of appeal has been made out. Since the ground was arguable and raised issues of some significance in light of the High Court's recent decision in Roder, we are of the view that leave to appeal, under s 5(1)(b) of the Criminal Appeal Act and under r 4.15 of the Supreme Court (Criminal Appeal) Rules, should be granted, but the appeal against conviction should be dismissed.

Additional comments

1. Before turning to the sentence appeal, it appeared to us that it may be appropriate to make some additional comments, although they are not necessary for our decision.

Content of tendency directions

1. The conclusion that the tendency directions, in light of the summing up as a whole in the circumstances of the present case, did not lead to any miscarriage of justice does not mean, however, that similar tendency directions should continue to be given. The approach set out in Roder at [37], as was noted in Astill at [44], requires that in a case such as the present the content and length of directions should not overcomplicate the jury's task and that there should be one tendency direction, coupled with faithful reference by the trial judge to the evidence relied upon to establish the tendency and accompanied by clear directions as to onus and standard of proof as well as to the contents of the elements of the offence(s) and of the need for separate consideration of each charge.
2. Thus, in circumstances where the prosecution relies on charged and uncharged acts to establish asserted tendencies, a single, separate tendency direction should be given in which: 1. the evidence relied on to support the asserted tendencies is identified; 2. the jury is directed to consider whether they are satisfied that any of the asserted tendencies is established; and 3. the jury is advised that, if any of the tendencies is established, that tendency can be used in considering whether it is more likely that the accused committed a relevant offence charged.
3. In light of the reasoning and approach in Roder and JS, the tendency directions should not include the jury being directed or invited to make findings in respect of charged conduct for the purposes of considering whether any of the tendencies was established.
4. The tendency directions must be fashioned to address the particular circumstances of the case and should encapsulate the issues and warn of the potential dangers of misuse which might arise in those circumstances. For example, where evidence of uncharged conduct is relied upon it may be appropriate to provide a direction to the jury reminding them of the limited use of that evidence, such that if they do not rely upon it to draw an inference as to a tendency argued for by the Crown, it should be put to one side.
5. A useful discussion of the nature, purpose and use of the Criminal Trial Bench Book suggested directions is found in BRC v R [2020] NSWCCA 176; 284 A Crim R 124. It would be helpful for the Criminal Trial Bench Book suggested tendency evidence direction at [4-227] to be revised so as to take into account what the High Court has said in Roder.

The description of the asserted tendencies

1. In addition, we accept, as the applicant submitted, that identification of multiple, overlapping tendencies in the tendency notice in the present case exacerbated the difficulty for the trial judge in giving appropriate tendency directions, although we are of the view that the summing up as a whole in the present case ensured that there was no resulting miscarriage of justice.
2. The first tendency was to have a sexual interest in in females aged from 16 to 19 years of age. The second tendency was a tendency to act on that sexual interest "by engaging in inappropriate sexual touching, as well as indecency and sexually assaulting females in that age bracket who the accused was exercising authority and control over as their employer, or by reason of supervising them in their work experience". On its face, the tendency alleged could have been understood as being to do all of the types of acts referred to in respect of each relevant female or only some of those types of conduct. The tendency evidence, however, did not all involve all of those types of conduct and some of the evidence related only to the least serious types of conduct referred to. Framing the tendency in this way made the task of giving clear and appropriate directions on tendency evidence more difficult than was necessary.
3. It may be that the particular types of sexual conduct identified were intended to be illustrative of acting on the first tendency and were specifically identified in the second tendency as "common features" in order to address the issue raised in Bauer at [58] where it was said: "In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true." (Footnotes omitted.)
4. In our view, the identification of specific types of conduct in the second tendency was unhelpful because it was unclear and also gave rise to difficulty identifying which parts of the tendency evidence actually supported the existence of the asserted tendency. In addition, it was unnecessary as there were already significant common features identified, namely that it was when the applicant was exercising authority and control over young females aged between 16 and 19 years old as their employer or by reason of supervising in their work experience that he had a tendency to act on his sexual interest in them.
5. In substance, the second tendency was a tendency to act on the sexual interest in females aged from 16 to 19 years of age "who the accused was exercising authority and control over as their employer, or by reason of supervising them in their work experience" with examples of the types of conduct involved being given. Although the examples of acting on the sexual interest given in the second tendency were unhelpful, they did not lead to any miscarriage of justice for the reasons we have already given.
6. In addition, it was unclear what the third and fourth tendencies, which referred to having a sexual interest only in AW and SM respectively, added to the first and second tendencies, which were to the effect that the applicant had a sexual interest in young females aged between 16 to 19 years old (which included both AW and SM at the relevant times) and acted on that interest when exercising authority and control over females of that age range as their employer or work experience supervisor. In these circumstances, the third and fourth tendencies appeared to us to be unnecessary and unhelpful. They also tended to complicate the tendency directions and potentially made the jury's task more complex than it was otherwise required to be.

Sentence appeal

1. As noted above, the applicant also seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act to appeal against the sentence imposed upon him, on the following grounds: "Ground 1: The sentencing judge erred in nominating indicative prison sentences for offences for which his Honour did not think it appropriate to fix any prison sentence. Ground 2: His Honour erred in the manner in which he determined to fix the ultimate aggregate sentence."
2. Given the focused nature of the grounds of appeal, the evidence, submissions, and sentencing determination can be addressed with relative brevity.
3. Additional evidence adduced during the sentencing proceedings included the applicant's criminal and custodial histories and victim impact statements tendered by the Crown.
4. Read for the applicant were affidavits from two female friends of his and that of his solicitor. A psychological report from Mr Sam Borenstein was tendered, as was an average life expectancy table from the Australian Bureau of Statistics.
5. The applicant was 68 years at the time of the sentence hearing. He had no criminal convictions. According to the average in the life expectancy table, the applicant was expected to live a further 17 and a half years.
6. The sentencing judge found that nothing in the applicant's background or personal circumstances reduced his moral culpability. The psychological report was found to show the applicant to have a total lack of remorse and failure to acknowledge his wrongdoing, but also demonstrated a low risk of reoffending. His Honour found that the applicant's good prospects of rehabilitation and low risk of reoffending were also contributed to by his lack of a criminal record and unlikelihood of being in the future in the same position as was used to commit these offences.
7. His Honour took into account the information in the applicant's solicitor's affidavit regarding the onerous conditions in custody due to the additional Covid-19 restrictions. The sentencing judge stated that the other two affidavits described positive qualities of the applicant that were of limited relevance to the sentencing exercise.
8. In light of the grounds of appeal, it is appropriate to set out some aspects of the submissions advanced by the parties at first instance, before referring to the relevant aspects of the sentencing judgment.
9. Senior Counsel for the applicant conceded that nothing other than a significant sentence of imprisonment was appropriate.
10. It was also submitted that the applicant's age was relevant as any custodial sentence would fall more heavily on him than a man of younger years and that: "The issue of general deterrence remains relevant but must be assessed in that context. However, it cannot be said that it would never be appropriate for a sentence to be imposed that may represent the whole of the rest of the offender's life - Holyoak (1995) 82 A Crim R 502 and case law cited therein."
11. As to the statistical life expectancy of 17 and a half years, it was submitted that while no two individuals are entirely the same, the statistics offer some assistance in weighing the fact of the applicant's advanced years in determining the application of the relevant principle.
12. In oral submissions, Holyoak was referred to again as supportive of the proposition that a sentence falls more heavily on a person of advanced years. It was submitted that this was relevant in weighing general and specific deterrence and was a matter capable of mitigating what would otherwise be the appropriate penalty but not so far that the sentence was wholly disproportionate and inappropriate. The average life expectancy in the table was referred to.
13. Written submissions for the Crown simply acknowledged that the age of the applicant was a relevant consideration.
14. During the sentencing hearing the following exchange took place between his Honour and the Crown Prosecutor: "CROWN PROSECUTOR: … There would also be a degree of accumulation between the separate incidents within the victims to represent the fact of multiple offending. The way totality may have the greatest impact on your ultimate sentence would be at the final stage where you have to take a look back at the overall sentence and consider if it's a crushing one. That is also a point where the offender's age would have a role to play, such that you may not impose the same sentence you may have been minded to impose on a much younger man because of the consequence of a non-parole period subsuming or taking up a considerable portion, if not the majority of, of any life expectancy Mr Wardell may have. So certainly totality has a role to play and it would also be factored in as far as the age of the offender. HIS HONOUR: What was that last submission, Mr Crown, in terms of he wouldn't - you made a submission concerning a non-parole period, as I understand what you said, taking up the majority of his remaining life expectancy. CROWN PROSECUTOR: Yes, that's Holyoake, and there are a number of other authorities in relation to that. They don't say that a court cannot impose a sentence that would effectively amount to a life term by way of that, if that is the appropriate sentence, but they do say that is a factor you have to have regard to because the way a sentence would weigh on a person who is, by way of example, 68 years of age, is different to someone who may be in their 30s, who, if they received a non-parole period, just by way of an example - it's the non-parole period in the case of Mol - of ten years. If they are released at 40, they have an expectation of a significant period of their life still ahead of them. For a man of 68, if they have a non-parole period of ten years, then at 78 there is, statistically, much less of their life expectancy. HIS HONOUR: No, I understood that. Without trying to get you to say something you're not at liberty to say, so to speak, but are you saying the Crown is not asking for a non-parole period of more than a majority of 17 years? CROWN PROSECUTOR: In essence, yes. If one looks at the case of Davies, which involved more victims at a much younger age - I think the numbers in that were 24 years with a non-parole period of 18 years, albeit that was on a plea of guilty. The Crown accepted in the written submissions that a sentence of that length would not necessarily, ultimately subject to your view, be appropriate in this matter. HIS HONOUR: But I was saying a majority of 17, so a non-parole period - in this case, you've got 23 counts, all with standard non-parole periods, all with either seven or 20 years at the maximum. If you break it down to look at the 20-year ones, there's 13 of them. The non-parole period is going to be pretty significant, I would have thought? CROWN PROSECUTOR: Yes, and the Crown - HIS HONOUR: And I would have thought, arguably, greater than the majority of the number of 17. CROWN PROSECUTOR: It depends where one draws the majority portion, but, certainly, the Crown position is that it would be well within range that is greater than the sentence that was imposed in Mol. Those cases are not put forward as comparative cases as such. They are limited in number and they are quite different in terms of the facts and the offences. HIS HONOUR: What was the sentence in Mol again? I thought you said it was 25 and 18? CROWN PROSECUTOR: Mol was 14 years with a ten-year non-parole period. HIS HONOUR: Okay. Right."
15. The cases referred to were Davies v R [2019] NSWCCA 45 and Mol v R [2017] NSWCCA 76. Further discussion continued regarding the facts in Mol.
16. Relevant to ground 1, his Honour stated as follows, under the heading "Sentencing Considerations:" "96. There was no argument made that there was some sentence other than a full time custodial sentence that was appropriate. As an overall submission that is plainly the correct approach. However, looked at individually, there are some offences that in my view do not cross the section 5 threshold, namely counts 1, 2, and possibly 3 (but not count 4 which whilst it is assessed as having the same objective seriousness as count 3, I consider to be more serious, reflecting the scope for difference within the same level of seriousness of offending) and possibly also count 12. Given the seriousness of the other offending, and the significant period of custody that will result, the most appropriate sentence in my view is to proceed with an indicative sentence, to reflect the Court's view of the conduct concerned, but recognising also that with the application of the totality principle, those sentences are in effect wholly concurrent sentences with the other offending."
17. Relevant to ground 2, his Honour addressed the applicant's age at multiple points in the remarks on sentence. In the portion of his Honour's remarks setting out the parties' submissions, his Honour stated as follows: "87. The ultimate submission of both parties was for a similar outcome, in so far as both parties' submissions advocated a non parole period approximating, or perhaps less than, the majority of the offender's life expectancy. There are two matters that I consider require some further consideration. One is the question of how to account for the age of the offender and the principle that a significant sentence falls more heavily on a person of advanced years. The decision of Holyoak (1995) 82 A Crim R 502 was relied upon but the principle does not extend to mitigating the sentence to a point that is disproportionate to the offending. 88. In Holyoak at page 507 the Court of Criminal Appeal made it clear that the mere fact of advanced years does not result in leniency. There needs to be some other significance in the age resulting in the lesser sentence. One such factor which is relied upon in this case is identified at page 507 and is where a sentence imposed on an offender will mean, given his age, that he will have little worthwhile life left after his release. The reasoning expressed was because the sentence bears more heavily upon the offender than a sentence of a similar term imposed on a younger man who can look forward to a worthwhile life after release. This was considered to be obvious. Allen J at 507 stated that "the real question as I see it is whether the objective gravity of the offences in the present case were such that it was within the proper bounds of judicial discretion for his Honour to impose the sentence that he did notwithstanding what, having regard to the applicant's age, the consequences well might be. It simply is not the law that it never can be appropriate to impose a minimum term which will have the effect because of the advanced age of the offender that he well may spend the whole of his remaining life in custody." 89. Allen J went on to state that the issue of age does not make proportionality irrelevant. And similarly, that general deterrence remained relevant. His Honour then said, "what however is appropriate by way of full-time custody viewed from the point of view of general deterrence must be considered in the light of the impact upon public perception of a jail sentence imposed upon a man of such advanced years upon whom the sentence would bear the more heavily because of his very age and the real risk that he will never walk free". 90. In the present case the offender is 68 years old. I find in line with the life expectancy tables that he has a life expectancy of 17 ½ years. I accept the position of the parties that it is a relevant consideration to take into account as to whether the minimum term of the non-parole period results in [there] remaining some period of worthwhile life upon release. I also take into account the fact that given his age and the impact on what life he has left it may be a more onerous sentence to bear. At the same time I take into account the relevance of general deterrence and the need for proportionality and also the impact of this offending on the victims. It perhaps demonstrates a beneficent aspect of the sentencing process that attention is paid to ameliorating the impact on an offender's remaining life of what would otherwise be a more lengthy sentence, yet the damage to the victims is acknowledged to be ongoing, a situation made more stark in this case by the youth of the victims. No criticism is intended in that remark which serves to point out the complex nature of the balancing process of the different considerations going into this sentence."
18. Under the heading "Sentencing Considerations" his Honour said the following in relation to the applicant's age: "98. In the present case the need for deterrence is tempered by the lack of likelihood of reoffending and the age of the offender. That reduces the need for personal deterrence. There remains the need for general deterrence. In regards to general deterrence, I have taken account of the age of the offender. The sentence arrived at will allow him a period of a worthwhile life upon release, taking into account all the other considerations, including in regards to general deterrence the need to consider the impact on public perception as discussed by Allen J in Holyoak, referred to at [89] above…"
19. In his Honour's section entitled "Conclusion" he stated, at [102]: "102. As mentioned above there was an intimation from the Crown consistent with what was being said by the offender's counsel that the non-parole period should not extend to a period beyond the majority of the life expectancy of the offender. That submission was not made with great precision, that is, it was not submitted that it cannot be any more than one half of the life expectancy of the offender. As a guide however that would see a result of a non-parole period of about eight years. In my view taking all factors into account and bearing in mind the need for a minimum sentence of custody to reflect the seriousness of the criminality involved, means the non-parole period should be more than that. This is a case of 13 counts of aggravated sexual assault, all of which are assessed as being in the broad mid range of objective seriousness, and 2 of which are assessed as being in the middle of the range of objective seriousness referred to in section 54A of the Act. The legislative guideposts for this offending of aggravated sexual assault are a maximum sentence of 20 years imprisonment and a standard non-parole period of 10 years. There then remains the 10 offences of aggravated indecent assault albeit that some are of a low level of seriousness. Overall the offender does not have a strong subjective case due to his total lack of remorse and lack of acknowledgement of wrongdoing, though there are some favourable features to it which are acknowledged, in particular the fact of his age as discussed above. The result is in my view there should be no lesser period of custody than 9 years."
20. His Honour then immediately stated that the result he reached was that the appropriate sentence was 14 years imprisonment, and allowing for his finding of special circumstances the non-parole period would be 9 years. His Honour found special circumstances to vary the usual ratio between non-parole period and total sentence due to the applicant's age, this being his first period of incarceration, to assist with rehabilitation and "…to achieve a result that sees the offender upon release have a worthwhile life for an appropriate period in all the circumstances." [13]

The parties' submissions

1. The applicant submitted that the approach reflected in paragraph [96] of the sentencing judgment (above at [121]) was flawed. It was submitted that it was not merely technical because his Honour had otherwise referred to the need to recognise, in considering totality, that the offending occurred against two different victims in two separate periods of time. It was submitted that the indicative custodial sentences for these four offences must have been taken into account in some way.
2. The respondent referred to the uncontroversial proposition that the appeal lies from the aggregate sentence, not the indicative sentences, although clear error in an indicative sentence may signal error in an aggregate. Referring to AA v R [2024] NSWCCA 132, it was submitted that sometimes an error in an indicative sentence will be subsumed and overtaken by the application of the principle of totality such that there is no discernible capacity for the error to have an impact on the aggregate sentence.
3. It was submitted that the fact that an offender is to be sentenced for multiple offences is relevant to the determination of each sentence, so that it will be erroneous to treat each offence as if it had occurred in isolation. In support of that proposition the Crown referred to R v JRD [2007] NSWCCA 55 at [27], [33]; Mohindra v R [2020] NSWCCA 340 at [48]; Khorami v R; R v Khorami [2021] NSWCCA 228 at [378].
4. The Crown submitted that not only was each of the four relevant offences itself part of a broader pattern of offending, any sentence to be imposed or indicated was required to be consistent with the reality of the sentencing task. It was submitted that the fact that the applicant was to be sentenced to a term of imprisonment limited the sentencing options available for individual offences.

Determination

1. There was no error in his Honour specifying indicative periods of imprisonment for these offences, confirming the significant notional concurrency between offences in this matter, although he may not have found the threshold in s 5 of the Crimes (Sentencing Procedure) Act crossed if he had been dealing with the four relevant offences in isolation. His Honour was obliged to consider these offences in light of the broader pattern of offending, and the sentencing options available. The applicant was not entitled to the benefit, in mitigation of penalty, of any of these four offences being isolated.
2. Due to the applicant's inevitable imprisonment, sentencing options other than imprisonment (or sentences of imprisonment to be served other than on a full time basis) were rendered incapable of serving the purposes of sentencing. They were either unavailable options, or would not have reflected the punitive, rehabilitative, and denunciatory aspects of sentencing. As was stated by Basten JA, with whom Johnson and Davies JJ agreed, in Mohindra at [49]: "One important reason for having regard to other matters for which the offender is being sentenced is to avoid imposing inconsistent sentences. For example, it is not possible to impose a community corrections order, requiring community service work, where the person is incarcerated under another sentence. Similarly, a form of conditional release order would be inappropriate if it ran concurrently with a sentence of imprisonment."
3. We would grant leave to appeal against sentence on ground 1 but dismiss this ground.

The parties' submissions

1. It was submitted for the applicant that whereas his Honour referred to both parties contending that the non-parole period should not exceed "the majority of the expected remainder" of the life of the applicant, this submission had only come from the Crown. It was submitted that the exercise reflected in paragraph [102] of the sentencing judgment (above at [124]) was one which took "the majority" of the remainder of the applicant's life as a benchmark. It was submitted that "This seems to have been taken as meaning "more than half", as 8 years and 9 months is half of 17 and a half years."
2. The applicant's argument proceeded on the basis that his Honour then settled on the non-parole period of 9 years because the seriousness of the criminality required a greater non-parole period than that benchmark. Having specified indicative non-parole periods for individual offences, where this was required, at close to two thirds of the respective indicative sentences, his Honour was said to have then determined upon the total sentence of 14 years imprisonment to create a similar ultimate ratio, when a 9-year non-parole period had been determined. This process was submitted to be an erroneous "short-cut" and indicative of "bottom-up" sentencing contrary to s 44(1) of the Crimes (Sentencing Procedure) Act (for an aggregate sentence).
3. The Crown submitted that the applicant had not established error. It was submitted that it was not clear that the Crown had made the submission attributed to him by his Honour, rather than addressing the appropriate relevance of age and its impact on totality. It was submitted that to the extent that his Honour may have misunderstood the Crown submission, his Honour at [102] rejected it as an approach that would result in an insufficient non-parole period.
4. It was alternatively submitted that if there was error, it favoured the applicant because the sentencing judge stated at [90] that he would have imposed a lengthier sentence but for this ameliorative aspect of the sentencing process. The following three components, which were favourable to the applicant, were said to make up his Honour's treatment of the applicant's age as reflected in paragraph [90]: "a. The applicant's age was relevant to whether the non-parole period resulted in the applicant having some period of worthwhile life on release, b. The applicant's age meant that his sentence may be more onerous for him to [bear], and c. The impact of the applicant's age was that it ameliorated what would otherwise have been a more lengthy sentence."
5. The Crown articulated detailed submissions in relation to s 6(3) of the Criminal Appeal Act, in the event that the Court found that error had been demonstrated.

Determination

1. The principles relevant to sentencing older offenders were canvassed in Geraghty v R [2023] NSWCCA 47 (Basten JA, Button and Chen JJ) at [109]-[116]. Although there are many ways in which advanced age can ameliorate the sentence to be imposed, the Court held at [113] that to give determinative weight to age would be inconsistent with principle.
2. We are of the view that to the extent that the Crown Prosecutor may be thought to have advanced the submission the applicant suggests he did, or his Honour may have misunderstood the Crown's submission (and clearly misunderstood that this was also the position of defence counsel), his Honour did not act upon it. In a careful judgment close to 40 pages or 106 paragraphs in length, his Honour did not use the applicant's life expectancy as a short-cut in sentencing him. Returning to the impact of age on numerous occasions, in appropriate contexts, his Honour ameliorated this sentence very significantly - but not mechanically - because of the applicant's age.
3. It was not erroneous for his Honour, in the course of rejecting the mechanical or determinative approach to age he had understood the parties to have urged upon him, to indicate that this would result in a non-parole period that would not be sufficient.
4. We would grant leave to appeal pursuant to this ground but dismiss the ground.

Conclusion and Orders

1. For these reasons, the orders of the Court are: 1. Grant the applicant leave to make the application for leave to appeal out of time, pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules. 2. Grant the applicant leave to appeal against conviction. 3. Dismiss the appeal against conviction. 4. Grant the applicant leave to appeal against sentence. 5. Dismiss the appeal against sentence.

Endnotes

1. This is to assist to ensure that the statutory prohibitions contained in s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) on publishing the names or identifying information of complainants in such matters are effective.
2. Applicant's written submissions filed 2 July 2024 (AWS), par 8.
3. AWS, par 20.
4. AWS, pars 22-24.
5. AWS, pars 25 and 27.
6. AWS, par 17.
7. Tcrpt 26 August 2021, p 1230 (39-42).
8. Tcrpt 26 August 2021, p 1232 (18-27).
9. Tcrpt 27 August 2021, p 1276 (9).
10. Affidavit of Yaebee Kim affirmed 29 August 2024, par 5.
11. Tcrpt 30 August 2021, pp 55-62. The paragraphing in this passage has been modified to correspond with the paragraphing in MFI 9, the draft tendency directions provided to the parties by the trial judge.
12. This position is now also established by s 161A of Criminal Procedure Act.
13. Sentencing judgment [72], [83], [103]. 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: 03 March 2025