AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 12 March 2025

New v R

[2025] NSWCCA 32

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION S SEXUAL OFFENCES WRONG DECISION ON ANY QUESTION OF LAW MISCARRIAGE OF JUSTICE

Citation: New v R [2025] NSWCCA 32
Court: Court of Criminal Appeal, NSW
Date: 12 March 2025
Judges: Mitchelmore JA, Fagan J, Dhanji J

Background

The appellant was convicted by juries of two separate sexual offences arising from incidents involving two complainants. The first conviction, from a trial in September 2022, related to an allegation of intentional sexual touching without consent under s 61KC(a) of the Crimes Act 1900 (NSW). The second conviction, from a retrial in September 2023 (the first jury having been unable to reach a verdict), related to sexual intercourse without consent under s 61I of the Crimes Act. In addition, the appellant had pleaded guilty to perverting the course of justice under s 319 of the Crimes Act shortly after the first trial's verdict.

In April 2024, the District Court imposed an aggregate sentence of 6 years' imprisonment with a non-parole period of 3 years and 7 months, covering all three offences. The appellant then sought leave to appeal against both the sexual offence convictions and the aggregate sentence.

The conviction appeal focused entirely on tendency evidence. At both trials, the trial judge admitted evidence under the tendency provisions of the Evidence Act 1995 (NSW) to show the appellant had a tendency to sexually touch the bodies of unconscious women, over the appellant's objection. The appellant argued this evidence was wrongly admitted, wrongly expanded, and inadequately directed upon.

  • Whether the trial judge erred in admitting tendency evidence directed at establishing the appellant's propensity to sexually touch unconscious women (Ground 1)
  • Whether additional evidence given by a further tendency witness (FK) was wrongly admitted, and whether its admission caused a miscarriage of justice (Grounds 2(a) and 2(b))
  • Whether the trial judge's failure to give certain directions on the use of tendency evidence occasioned a miscarriage of justice (Ground 3)
  • Whether the tendency directions actually given were erroneous because they required the jury to make preliminary findings about both charged and uncharged conduct, in a way that undermined the standard of proof and deflected the jury from its fundamental task (Ground 4)
  • Whether, following the quashing of convictions, the court should enter verdicts of acquittal or order a new trial

Decision

Ground 1 (admission of core tendency evidence): The majority (Dhanji J, Mitchelmore JA agreeing) held that the core tendency evidence, concerning the appellant's alleged propensity to touch unconscious women sexually, carried significant probative value under s 97(1) of the Evidence Act and that the danger of unfair prejudice did not outweigh it under s 101. Ground 1 was not upheld by the majority. Fagan J dissented, concluding the evidence lacked substantial probative value and should have been rejected under both s 97(1) and s 101.

Grounds 2(a) and 2(b) (FK's further evidence): The court was unanimous on this point. FK's further evidence did not actually support the asserted tendency to touch unconscious women. Rather, it described non-consensual sexual touching of a conscious woman during what appeared to be an attempt to initiate further consensual activity. That evidence was highly prejudicial but not probative of the pleaded tendency. Admitting it and failing to withdraw it from the jury occasioned a miscarriage of justice. Both grounds were upheld.

Ground 3 (omission of directions): The majority (Dhanji J, Mitchelmore JA agreeing; Fagan J not deciding) found no miscarriage arising from the omission of particular directions in either trial. The absence of those directions would not have deflected the jury from their task.

Ground 4 (erroneous tendency directions): The majority upheld this ground. The directions given required the jury to make anterior findings about whether the charged and uncharged conduct had actually occurred before applying the tendency reasoning. This process undermined the applicable standard of proof and created a real risk that the jury was deflected from its fundamental task, namely deciding whether the prosecution had proved the charged offences beyond reasonable doubt.

Acquittal or retrial: By majority (Dhanji J and Fagan J), the court entered verdicts of acquittal rather than ordering a new trial. Despite factors that might otherwise have favoured a retrial, the majority considered it would be oppressive to subject the appellant to further proceedings. Mitchelmore JA dissented, finding the interests of justice favoured a new trial. On resentencing for the perverting the course of justice offence, Dhanji J (with whom the others agreed on the sentence) imposed 14 months' imprisonment with a 10-month non-parole period, noting the sentence had already been served.

Orders Made

  • Verdict of acquittal entered on count 1 (intentional sexual touching without consent, indictment dated 7 September 2022)
  • Verdict of acquittal entered on the single count (sexual intercourse without consent, indictment dated 21 October 2022)
  • For the offence of perverting the course of justice: sentence of 14 months' imprisonment with a non-parole period of 10 months, commencing 12 September 2023; non-parole period expired 11 July 2024; total sentence expired 11 November 2024
  • Aggregate sentence imposed by the District Court quashed

Key Takeaways

  • Tendency evidence that is framed at a level of generality inconsistent with the actual evidence adduced may lack the probative value required for admissibility under ss 97 and 101 of the Evidence Act 1995 (NSW), particularly where the evidence led at trial does not in fact support the pleaded tendency.
  • FK's evidence illustrates a critical distinction: evidence of non-consensual touching of a conscious person does not directly support a tendency to touch unconscious persons, and admitting it under that tendency rubric may constitute a miscarriage of justice given its high potential for unfair prejudice.
  • Where tendency directions require a jury to make anterior factual findings about both charged and uncharged conduct, there is a real risk the standard of proof applicable to the charged offences is undermined, giving rise to error on a question of law.
  • The Court of Criminal Appeal confirmed that the relevant evidence for assessing a ground based on tendency admissibility is the evidence actually admitted at trial, departing from the approaches in R v Fletcher [2005] NSWCCA 338 and Col v R [2013] NSWCCA 302.
  • In determining whether to enter acquittals or order a new trial following quashed convictions, oppression to the accused from further proceedings can, in appropriate circumstances, be a decisive consideration favouring acquittal, though this was a point of dissent within the court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 61I, 61KC(a), 319
- Evidence Act 1995 (NSW): ss 97(1), 101
- Criminal Appeal Act 1912 (NSW): ss 5(1)(b), 6, 7(1A), 8

Cases:
- Col v R (2013) 237 A Crim R 67; [2013] NSWCCA 302 (not followed)
- R v Fletcher (2005) 156 A Crim R 308; [2005] NSWCCA 338 (not followed)
- GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40
- Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35
- Director of Public Prosecutions v Benjamin Roder (a pseudonym) (2024) 98 ALJR 644; [2024] HCA 15
- Harrigan v R [2005] NSWCCA 449
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29