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Court of Criminal Appeal 31 March 2025

DP v R

[2025] NSWCCA 45

Sexual offences

Citation: DP v R [2025] NSWCCA 45
Court: NSW Court of Criminal Appeal
Date: 31 March 2025
Judge(s): Adamson JA; Hamill J; Ierace J

Background

The applicant was convicted by jury of seven sexual offences committed against his daughter across four separate incidents between 2010 and 2017, when the complainant was aged between 7 and 13. He was also convicted of two counts of possessing child abuse material, discovered when police executed a search warrant on the family home in October 2018. One count involved covertly filmed images and videos of the complainant taken through her bedroom window; the other involved images and videos of naked female children generally. The complainant reported the offending to police in October 2018, when she was 15 years old.

The applicant received an aggregate sentence of 10 years' imprisonment and did not challenge his sentence. His appeal was confined to the convictions. The Crown had served a tendency notice relying on the sex counts and additional sexualised conduct by the applicant toward the complainant, referred to in the proceedings as "context evidence." Notably, the Crown's tendency notice did not include the possession counts, though at trial the Crown ultimately relied on the covertly filmed material (count 10) as supporting evidence of the tendency.

A central procedural difficulty arose at the end of the Crown's closing address, when the trial judge raised the question of tendency evidence in the jury's absence. The Crown confirmed it was not relying on the context evidence for a tendency purpose but was relying on count 10 to establish tendency in relation to the sex counts. Defence counsel did not seek an anti-tendency direction regarding the context evidence, and did not object to count 10 being used in support of the tendency. The trial judge's tendency direction was ultimately more favourable to the applicant than the law required.

  • Whether the trial judge's failure to give an anti-tendency direction in respect of the context evidence occasioned a miscarriage of justice, either because defence counsel should have sought such a direction or because the direction given was defective.
  • Whether the various alleged irregularities in the way tendencies and supporting evidence were handled at trial resulted in a miscarriage of justice.
  • Whether, had either ground been made out, the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) would have applied to preserve the convictions.
  • The obligations of a Crown prosecutor when relying on tendency evidence at trial.

Decision

Ground 1: Failure to give an anti-tendency direction

The Court confirmed there is no universal rule requiring an anti-tendency direction. The applicant must demonstrate a "real chance" or "significant risk" that the jury engaged in impermissible tendency reasoning. On the facts, there was an objectively reasonable forensic basis for defence counsel not to seek such a direction: drawing attention to the context evidence through a formal direction could have highlighted it to the jury's detriment, rather than limiting its effect. The Court applied the principle from TKWJ v The Queen and BQ v The King that a failure to seek a direction does not constitute ineffective assistance where a reasonable forensic choice underlies it.

The risk of impermissible tendency reasoning was further diminished by the fact that the trial judge's direction was, if anything, overly favourable to the applicant. The direction required the jury to be satisfied of each count beyond reasonable doubt before using it for a tendency purpose, which set a higher bar than the law demands. No miscarriage of justice was established under ground 1.

Ground 2: Irregularities in treatment of tendencies and supporting evidence

The Court examined each of the specific irregularities raised by the applicant, including the Crown's failure to articulate tendency reasoning clearly before and during trial, and the manner in which count 10 came to be used as tendency support evidence. None of these matters, individually or collectively, resulted in a miscarriage of justice on the particular facts of this trial.

The proviso

Although neither ground was made out, the Court observed that the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) would have been applicable had error been found, given the strength of the evidence against the applicant.

The prosecutor's obligations

The Court took the opportunity to record observations about prosecutorial duty when relying on tendency evidence. A prosecutor ought to identify tendency evidence and articulate its relevance to the jury in the Crown's opening. The Crown should also clearly identify in closing which evidence it relies upon to establish the tendency, so that defence counsel can respond and the trial judge can sum up accurately. In this trial, the Crown's failure to do so effectively left the trial judge to communicate the prosecution's circumstantial tendency case to the jury for the first time during the summing-up. While the trial judge's handling of the situation preserved the fairness of the trial, the Court emphasised that carrying this obligation falls on the prosecutor, not the judge.

Orders Made

  • Time for filing the notice of appeal extended to 29 November 2024.
  • Leave to appeal granted, including pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
  • Appeal dismissed.

Key Takeaways

  • No universal rule requires a trial judge to give an anti-tendency direction. An applicant must demonstrate a "real chance" or "significant risk" that the jury engaged in impermissible tendency reasoning before a failure to give such a direction will amount to a miscarriage of justice.
  • Where defence counsel makes an objectively reasonable forensic decision not to seek an anti-tendency direction, that omission will not of itself constitute a miscarriage of justice, even if a different choice was theoretically available.
  • A tendency direction that is more favourable to the accused than the law requires can operate to reduce the risk that any error in the direction caused a miscarriage of justice.
  • The Court of Criminal Appeal identified a clear prosecutorial obligation: when tendency evidence forms part of the Crown case, the prosecutor must identify that evidence and articulate the tendency relied upon in both the opening address and the closing address. It is undesirable to leave that task to the trial judge's summing-up.
  • Under s 6(1) of the Criminal Appeal Act 1912 (NSW), the proviso remains available where error is found but the evidence against the accused was sufficiently strong that no substantial miscarriage of justice occurred.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M, 66C, 66EB, 91H
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), ss 161A, 306U
- Evidence Act 1995 (NSW), ss 97, 100
- Evidence Regulation 2020 (NSW), reg 5
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- BQ v The King (2024) 279 CLR 124; [2024] HCA 29
- BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47
- Director of Public Prosecutions v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644
- Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- HML v The Queen (2008) 235 CLR 334; [2008] HCA 16
- Hughes v The Queen (2017) 263 CLR 388; [2017] HCA 20
- Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 7
- KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11
- Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46