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Court of Criminal Appeal 2 May 2025

Hu v R

[2025] NSWCCA 66

Sexual offences
CRIME APPEALS APPEALS AGAINST CONVICTION ADMISSIBILITY OF TENDENCY EVIDENCE WHERE MATTERS IN ISSUE AT TIME OF PRE WHERE TENDENCY DIRECTION GIVEN

Citation: Hu v R [2025] NSWCCA 66
Court: Court of Criminal Appeal
Date: 2 May 2025
Judge(s): Davies J, Wright J, Sweeney J

Background

The applicant was an osteopath who practised in Sydney between 2013 and 2019. Following a trial in the District Court, he was convicted of one count of aggravated indecent assault against a patient in February 2013 and one count of aggravated sexual intercourse without consent against another patient in September 2019. The jury could not reach a verdict on two further counts of aggravated sexual touching without consent involving two other patients in October 2019.

The aggravating circumstance alleged in each count was that the complainant was "under the authority of" the applicant at the time of the offending, within the meaning of section 61H(2) of the Crimes Act 1900 (NSW). The Crown also relied on the evidence of each complainant as cross-admissible tendency evidence in respect of the counts involving the other complainants.

The applicant appealed his convictions on five grounds, challenging both the legal interpretation of "under the authority of" and the admission and use of the tendency evidence at trial.

Legal Issues

  • Whether a patient receiving osteopathic treatment is "in the care of," and therefore "under the authority of," the treating osteopath for the purposes of section 61H(2) of the Crimes Act 1900 (NSW)
  • Whether the trial judge misdirected the jury on the meaning of "under the authority of" as an aggravating circumstance
  • Whether the pre-trial ruling admitting the complainants' evidence as cross-admissible tendency evidence was erroneous
  • Whether, by the close of evidence at trial, the tendency evidence retained sufficient probative value to remain properly before the jury
  • Whether the tendency evidence directions given by the trial judge were confusing or erroneous in a way that undermined the standard of proof and occasioned a miscarriage of justice

Decision

Grounds 1 and 2: The "under the authority of" element

The Court held that the three limbs of section 61H(2), namely being "in the care of," "under the supervision of," and "under the authority of" another person, operate independently rather than as a composite expression requiring a single cumulative finding (at [40]-[47]). A patient receiving health care treatment is, in ordinary usage, "in the care of" the health care professional, and that relationship captures the concept of the professional being responsible for the patient's welfare during treatment (at [48]-[49]). Accordingly, it was open to the jury to find that a complainant receiving osteopathic treatment was "under the authority of" the applicant, and no error was established in the trial judge's approach (at [51]-[52]).

The Court rejected the submission that the trial judge directed the jury that the aggravating element was automatically established merely by the existence of an osteopath-patient relationship. The impugned remarks were either discussion with counsel about what was genuinely in dispute or a summary of the Crown's position, not binding directions of law (at [54]-[58]). The directions given to the jury left the question as one of fact and did not deflect the jury from its task of determining whether the element was proved beyond reasonable doubt (at [63]-[69]). Leave to appeal on ground 1 was granted but the appeal on that ground was dismissed; leave was refused on ground 2.

Ground 3: Admissibility of the tendency evidence

The Court reviewed the pre-trial ruling afresh, applying the correctness standard. The tendency evidence, taken at its highest, strongly supported a tendency on the applicant's part to be sexually or indecently inappropriate with female patients during massage treatment, including removing underwear without consent or explanation and making sexual or flirtatious comments in proximity to the touching (at [109]-[113]). The six-year gap between the 2013 incident and the 2019 incidents did not fatally weaken the tendency; an inference was available that the applicant had been careful to conceal his conduct following a complaint made to the Osteopathy Council and the Health Care Complaints Commission in 2013 (at [112]). The Court was satisfied the evidence had significant probative value and that its probative value outweighed the danger of unfair prejudice to the applicant (at [114]-[125]). Leave was granted and the appeal on ground 3 was dismissed.

Ground 4: Whether the tendency evidence retained probative value at the close of trial

The applicant argued that by the end of the evidence the only real issue remaining was the "ambit of proper treatment," rendering the tendency evidence no longer significantly probative. The Court rejected that characterisation. Substantial factual disputes remained in relation to both counts, including whether the applicant removed underwear without consent or explanation and, in relation to count 2, whether digital penetration occurred (at [138]-[139]). The tendency evidence retained considerable probative value in relation to those issues, and its probative value continued to outweigh the danger of unfair prejudice (at [141]-[142]). Leave to appeal was refused on this ground.

Ground 5: The tendency evidence directions and standard of proof

The Court acknowledged that parts of the tendency direction, in asking the jury to consider whether the tendency evidence established that the conduct occurred, were not in accordance with the preferred approach confirmed by the High Court in Roder and this Court in JS (at [166]). However, assessing the summing up as a whole, the Court found no significant risk that the jury was deflected from determining whether each element of each offence was proved beyond reasonable doubt (at [169]-[170]). The trial judge gave careful and repeated directions on the onus and standard of proof, the elements of each offence, and the need to consider each count separately (at [170]-[175]). Critically, the jury's inability to reach verdicts on counts 3 and 4 indicated that the jury did not treat the tendency evidence as displacing the requirement of proof beyond reasonable doubt on each count (at [181]-[182]). Leave to appeal was refused on ground 5.

Orders Made

  • Ground 1: Leave to appeal under section 5(1)(b) of the Criminal Appeal Act 1912 (NSW) granted; appeal dismissed.
  • Ground 2: Leave to appeal under section 5(1)(b) and rule 4.15 refused.
  • Ground 3: Leave to appeal under section 5(1)(b) granted; appeal dismissed.
  • Ground 4: Leave to appeal under section 5(1)(b) and rule 4.15 refused.
  • Ground 5: Leave under rule 4.15 refused.

Key Takeaways

  • The three limbs of section 61H(2) of the Crimes Act 1900 (NSW), "in the care of," "under the supervision of," and "under the authority of," operate independently. A patient receiving treatment from a health care professional, including an osteopath, is "in the care of" that professional and therefore "under the authority of" them for the purposes of the aggravating circumstance provisions (at [47]-[49]).

  • No error was established in the trial judge directing the jury on only so much of the definition of "under the authority of" as was relevant to the osteopath-patient relationship, without exhaustively defining the word "care," where doing so would risk substituting a different expression for the statutory language (at [65]).

  • Tendency evidence is not rendered inadmissible merely because the charged incidents are separated by a significant gap in time, where other evidence provides a plausible explanation for the absence of similar conduct during that interval (at [112]).

  • In dismissing the challenge to the tendency directions, the Court of Criminal Appeal confirmed that not every tendency direction which invites the jury to consider charged conduct as part of establishing an asserted tendency will constitute an error or occasion a miscarriage of justice; the summing up must be assessed as a whole (at [161], [169]-[170]).

  • A jury's failure to convict on all counts in a multi-count trial is a relevant indicator that the jury applied the correct standard of proof independently to each charge and did not reason impermissibly from the tendency evidence (at [181]-[182]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61D(1A) (repealed), 61E (repealed), 61H(2), 61J(1) and (2)(e) , 61KD(1)(a) , 61M(1) and ( 3)(c) (repealed), 61O (repealed), 66C(2)
- Crimes (Amendment) Act 1989 (NSW)
- Crimes ( Child Assault) Amendment Act 1985 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
- Criminal Procedure Act 1986 (NSW), ss 130A, 161A
- Evidence Act 1995 ( NSW), ss 97,101
- Interpretation Act 1987 (NSW), ss 34 (1)(a) , 34(2)(f)
- Supreme Court ( Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- Astill v R [2024] NSWCCA 118
- Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44.
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62
- Huynh v The Queen (2013) 214 CLR 1; [2013] HCA 6
- JS v R [2022] NSWCCA 145
- KSC v R [2012] NSWCCA 179
- Liberato v The Queen 159 CLR 507; [1985] HCA 66
- Manojlovic v R; R v Manojlovic [2020] NSWCCA 315
- McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045
- Moore (a pseudonym) v The King [2024] HCA 30; 98 ALJR 1119
- New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50
- New v R [2025] NSWCCA 32
- Rassi v R [2023] NSWCCA 119
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
- Taylor v R [2020] NSWCCA 355
- The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
- TL v The King (2022) 275 CLR 83; [2022] HCA 35
- Wardell v R [2025] NSWCCA 26