The King v AR

The respondent was tried in the District Court of New South Wales on seven sexual offences against a single complainant, GC, aged 10, arising from three separate incidents during school holidays in September–October 2020. On each occasion, the Crown alleged the respondent sexually assaulted GC after she fell asleep beside him while watching a movie. The Crown served a tendency notice identifying the respondent's tendency to have a sexual interest in GC and to act on that interest by penetrating her vagina with his fingers and/or sexually touching her when she had fallen asleep beside him watching a movie. The evidence relied upon to establish the tendency was exclusively the evidence of the charged acts; there was no evidence of uncharged acts. The trial judge admitted the tendency evidence and directed the jury that, in determining whether the tendency was established, it should consider the evidence of the charged acts and decide whether the respondent conducted himself in the way the Crown alleged, but that it was not required to be satisfied of those acts beyond reasonable doubt. The jury convicted the respondent of counts 3, 5 and 7. The NSW Court of Criminal Appeal set aside the convictions and ordered a retrial, holding that the tendency direction was erroneous. The Crown appealed to the High Court.

• Whether framing a tendency in terms that replicate the detail of charged conduct, and relying exclusively on evidence of charged acts from a single complainant to establish that tendency, is inconsistent with the nature of tendency evidence
• Whether a tendency direction that invites the jury to make findings about charged conduct to a lesser standard than beyond reasonable doubt constitutes, of itself, a misdirection or miscarriage of justice
• Whether the tendency direction, considered in the context of the summing up as a whole, gave rise to a real risk of undermining the jury's understanding of the necessity for proof beyond reasonable doubt
• Whether the NSW CCA was correct to rely on Kanbut v The King to hold that framing a tendency by reference exclusively to the offending behaviour was inconsistent with the nature of tendency evidence

• ratioWhere a tendency direction invites a jury to make findings in respect of charged acts (contrary to the recommended approach in Roder), the relevant question on appeal is whether that direction, considered as part of the summing up as a whole, gave rise to a real or practical risk of undermining the jury's understanding of the necessity for proof of the elements of the charged offence beyond reasonable doubt. — established [11, 53, 58, 59, 60]
• ratioIn proving an offence, it is only each element of the offence and any fact essential or indispensable to proof of an element of the offence which must be proved beyond reasonable doubt. The trier of fact in a criminal trial need not satisfy itself to that standard of proof in respect of the existence of other facts and circumstances relevant to proof of the charge. — established [172]
• ratioEvidence that an accused tended to act in one way on one occasion (whether that occasion involves a charged or uncharged act) is likely to have significant probative value that the accused tended to act in the same way on another, similar occasion. Such evidence is quintessential tendency evidence. The evidence of a complainant alone of alleged conduct of an accused on more than one occasion can be tendency evidence, the probative value of which outweighs any unfairly prejudicial effect. — established [173, 182]
• ratioEvidence of either or both charged acts or uncharged acts can be relied on to establish a tendency. Whether the evidence said to demonstrate the tendency is evidence of charged acts or uncharged acts, the standard of proof concerning such evidence is governed by the principles applicable to circumstantial evidence. Unless the tendency is an indispensable intermediate step in reasoning to guilt, it need not be proved beyond reasonable doubt. — established [8, 76]
• ratioThere is no strict logical divide between a jury's rational satisfaction of the existence of an alleged tendency (said to be proved by the alleged occurrence of certain conduct on more than one occasion) and a jury's rational satisfaction of the alleged occurrence of certain conduct on more than one occasion (said to prove the existence of the alleged tendency). — established [179]
• ratioIn a criminal case, the tribunal of fact may, if it finds that an alleged tendency has been proved to a lesser standard by relying on direct evidence of charged acts, deploy that tendency in determining whether the charged acts have been proved beyond reasonable doubt. Such reasoning is not circular or incoherent. — established [9, 52, 56, 76]
• ratioThe closer the correspondence between the alleged tendency and the charged conduct and the fewer the instances of charged conduct relied on to establish an alleged tendency, the greater the potential for a direction that invites the jury to make findings in respect of that conduct to a lesser standard to undermine the jury's understanding of the necessity for proof beyond reasonable doubt. However, whether there was the relevant risk requires consideration of the summing up as a whole. — established [58]
• ratioIt is the alleged tendency, not the evidence said to demonstrate its existence, that is relied on as circumstantial evidence in proof of the charged conduct. — established [56]
• ratioA tendency 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 the charged conduct has been proved beyond reasonable doubt. — refined — the majority clarified that the use of 'should' rather than 'must' in Roder means departure from the recommended form does not of itself constitute a miscarriage of justice [10, 11, 77]
• ratioTendency evidence is a form of circumstantial evidence. The alleged tendency is an intermediate fact to be proved in its own right and, if established, the tendency can then be deployed in aid of proof of the charge(s) to which it relates. — affirmed [7, 76]
• ratioSimilarity between the conduct said to demonstrate the alleged tendency and the conduct in issue is not a precondition to the admission of tendency evidence, but it is a common feature of a tendency which can give that evidence significant probative value. Framing a tendency at a level of specificity that describes or replicates the detail of the type of conduct in issue is not inconsistent with the nature of tendency evidence. — established [45, 47, 53]
• ratioThe formulation of the relevant tendency will often be critical to the admissibility and use of the evidence said to support the alleged tendency as well as the reasoning towards guilt that the alleged tendency is said to support. — affirmed [40, 79]
• obiterThe overspecification of a tendency by reference to both complainants and all particularised acts against both complainants in a multi-complainant case can rob the alleged tendency of its probative strength. This was the problem in Kanbut, which was distinguished from the present case. — considered — distinguished Kanbut on the basis that the present case involved a single complainant and the specificity of the tendency gave it probative value [43, 44, 86, 87]
• obiterIt is a logical and semantic error to use an intermediate conclusion that contested evidence establishes that an accused probably had a tendency to perform a particular act on a single occasion in order to assist in drawing an ultimate conclusion, beyond reasonable doubt, that on the same occasion the accused performed that act. — applied — Edelman J in dissent identified this as a logical impossibility of single-act tendency reasoning [132, 154]
• obiterWhere a tendency is based on a very limited number of charged acts over a short period of time and involving the same complainant, and the tendency is expressed in terms closely related to the elements of the charged acts, there is a grave danger of confusing the burden of proof. That danger could only be avoided, if at all, by the most careful and powerful directions. — applied — Edelman J in dissent; the majority acknowledged the graduated risk but held the summing up as a whole was sufficient [122, 134, 139, 144]

• Applied and refined. The majority clarified that the Roder guidance that a tendency direction 'should' avoid inviting findings on charged conduct is a recommendation, not a strict rule; departure does not of itself constitute a miscarriage of justice. The majority affirmed Roder's characterisation of tendency evidence as circumstantial evidence involving an intermediate fact, and affirmed that using evidence of charged acts to establish a tendency and then deploying that tendency in proof of the charged acts is not circular reasoning. Director of Public Prosecutions v Benjamin Roder (a pseudonym) [[2024] HCA 15] — Central authority on tendency directions; refined at [10]–[11], [53], [58]
• Applied. The majority affirmed the principles from this case regarding the nature and function of tendency evidence, the standard of proof for intermediate facts, and the permissibility of relying on charged acts to establish a tendency. TL v The King [[2022] HCA 35] — Applied at [7]–[9], [29], [52], [56], [76]
• Distinguished. The majority held that the overspecification of the tendency in Kanbut by reference to both complainants and all particularised acts robbed the tendency of probative strength, but that this reasoning did not apply to the present single-complainant case where the specificity of the tendency gave it significant probative value. JS v R [[2022] NSWCCA 145] — Distinguished at [43]–[47], [86]–[87]
• Applied. Principles regarding the formulation of tendency evidence and the two-limb test for significant probative value were affirmed. Hughes v The Queen [[2017] HCA 20] — Applied at [17], [40], [79]
• Overturned. The High Court set aside the CCA's orders quashing the convictions and ordering a retrial, holding that the CCA erred in its reliance on Kanbut and in finding that the tendency direction constituted a miscarriage of justice. New v R [[2025] NSWCCA 32] — Overturned in full
• Referred to in relation to the assessment of significant probative value and the formulation of tendency evidence. The Queen v Dennis Bauer (a pseudonym) [[2018] HCA 40] — Referred at [48], [50], [58], [80], [86]
• Applied. Principles regarding the standard of proof for intermediate facts in criminal cases were affirmed. Shepherd v R [[1990] HCA 56] — Applied at [27], [79]
• Referred to in relation to tendency evidence principles. IMM v The Queen [[2016] HCA 14] — Referred at [3]
• Referred to regarding the standard of proof for circumstantial evidence. HML v The Queen; SB v The Queen; OAE v The Queen [[2008] HCA 16] — Referred at [6]

• Evidence Act 1995 (NSW) s 97(1) — Governs admissibility of tendency evidence, requiring significant probative value. Section 97A(2) establishes a presumption of significant probative value for tendency evidence in child sexual offence proceedings. [5, 6, 22, 47, 78, 126, 127, 130]
• Evidence Act 1995 (NSW) s 101(2) — Precludes prosecution use of tendency evidence unless its probative value substantially outweighs its prejudicial effect. [5, 6, 47, 78, 126, 181]
• Criminal Procedure Act 1986 (NSW) s 161A — Regulates tendency and coincidence directions. Provides that a jury must not be directed that tendency evidence needs to be proved beyond reasonable doubt. The majority held this provision is consistent with the settled principle that only elements of the offence and facts essential or indispensable to proof of an element must be proved beyond reasonable doubt. [8, 171, 172]
• Crimes Act 1900 (NSW) s 66C(1) — Offence of sexual intercourse with child between 10 and 14 years; the basis of counts 1, 3 and 5 on the indictment. [14, 63]
• Crimes Act 1900 (NSW) s 66DB(a) — Offence of sexually touching a child between 10 and 16 years; the basis of counts 2, 4, 6 and 7 on the indictment. [14, 63]
• Criminal Appeal Act 1912 (NSW) s 6(1) — Provision governing miscarriage of justice on criminal appeal; the framework within which the majority assessed whether the tendency direction gave rise to a miscarriage of justice. [11]

This decision resolves a contested question about the proper use of tendency evidence where the tendency is established exclusively by evidence of charged acts against a single complainant. It clarifies and develops the principles from [[2024] HCA 15] regarding tendency directions. The majority establishes that framing a tendency in terms replicating charged conduct is permissible and can give the tendency significant probative value. Critically, the majority establishes the definitive appellate test: a tendency direction that departs from the recommended Roder form does not of itself constitute a miscarriage of justice; the question is whether the summing up as a whole gave rise to a real or practical risk of undermining the jury's understanding of proof beyond reasonable doubt. The decision also confines the reach of [[2022] NSWCCA 145], clarifying that the problem in that case was the overspecification of a tendency across multiple complainants, not the use of specificity per se. The 4-3 split signals that the graduated risk identified by the majority — that the closer the correspondence between tendency and charged conduct, and the fewer the instances, the greater the potential risk — will be a live issue in future cases. Edelman J's dissenting analysis of single-act tendency reasoning and the graduated scale of danger, while not ratio, identifies factors the majority also acknowledged and which trial judges will need to address in their directions.

• When drafting tendency notices in single-complainant cases relying exclusively on charged acts, prosecutors may frame the tendency with specificity replicating the detail of the charged conduct. The majority held that such specificity is what gives the tendency significant probative value ([45], [47]).
• Trial judges giving tendency directions that depart from the recommended Roder form — by inviting findings on charged conduct rather than directing in terms of the tendency — should ensure the summing up as a whole is saturated with directions on the criminal standard of proof, the elements of each offence, and the need for separate consideration of each charge ([59], [60], [183], [184]).
• The majority's graduated risk principle ([58]) means that the fewer the charged acts and the closer the correspondence between tendency and charged conduct, the more robust the balance of the summing up must be. Trial judges should consider whether additional directions are warranted in such cases.
• Defence counsel challenging tendency directions on appeal must demonstrate that the summing up as a whole gave rise to a real or practical risk of undermining the jury's understanding of proof beyond reasonable doubt — not merely that the tendency direction departed from the recommended Roder form ([11], [53]).
• The distinction drawn with Kanbut ([[2022] NSWCCA 145]) is important: overspecification of a tendency across multiple complainants and all particularised acts may rob the tendency of probative value, but specificity in a single-complainant case identifying features common to all alleged offences is permissible ([44]–[47]).
• Edelman J's dissenting suggestion ([161]) that in cases involving a single complainant and a limited number of closely related allegations, a direction should be given that the jury must be very careful that findings as to tendency do not distract from the ultimate duty to find each charge proved beyond reasonable doubt, while not binding, identifies a prudent precautionary measure for trial judges.
• Section 161A of the Criminal Procedure Act 1986 (NSW) precludes directing a jury that tendency evidence must be proved beyond reasonable doubt, consistent with the settled principle that only elements of the offence and indispensable intermediate facts attract that standard ([8], [171], [172]).

• [[2024] HCA 15]
• [[2022] HCA 35]
• [[2017] HCA 20]
• [[2018] HCA 40]
• [[2022] NSWCCA 145]