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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: New South Wales Court of Criminal Appeal
Date: 2 May 2025
Judge(s): Davies J, Wright J (primary judgment), Sweeney J

Background

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

In each charged offence, the aggravating circumstance was that the complainant was "under the authority" of the applicant within the meaning of s 61H(2) of the Crimes Act 1900 (NSW). Each complainant was a patient receiving osteopathic treatment at the time of the alleged conduct.

The applicant sought leave to appeal his convictions on five grounds, covering the proper construction of the "under the authority of" element, directions given to the jury on that element, and the admissibility and use of tendency evidence drawn from the accounts of the four complainants.

  • Whether, on the proper construction of s 61H(2) of the Crimes Act 1900 (NSW), a patient receiving treatment from an osteopath is "under the authority of" that osteopath at the relevant time.
  • Whether the trial judge misdirected the jury on the "under the authority of" element of each offence.
  • Whether the evidence of each complainant was cross-admissible as tendency evidence under ss 97 and 101 of the Evidence Act 1995 (NSW).
  • Whether the trial judge erred by directing the jury on tendency evidence when the factual matters said to be proved by that evidence were allegedly no longer in issue at the close of the trial.
  • Whether the tendency directions caused a miscarriage of justice, having regard to the preferred approach set out by the High Court in DPP v Benjamin Roder (a pseudonym) [2024] HCA 15.

Decision

"Under the authority of" and the jury directions

The Court held that on the proper construction of s 61H(2), a patient who is receiving treatment from a health care professional is "in the care of" that professional, and is therefore "under the authority of" them within the statutory definition. The Court found no error in the trial judge's directions to the jury on this element. The defence had not made substantial submissions at trial on this point, and no redirection was sought.

Admissibility of tendency evidence

The Court upheld the pre-trial ruling that the evidence of each complainant was cross-admissible as tendency evidence against the counts involving the other complainants. Given the matters in issue at the time of the pre-trial hearing, the tendency evidence had significant probative value under s 97 of the Evidence Act, and that probative value outweighed the danger of unfair prejudice to the applicant under s 101.

Whether the tendency evidence remained probative at trial's close

The applicant argued that by the end of the evidence, the only remaining issue was the "ambit of proper treatment," so that the tendency evidence had ceased to carry significant probative value. The Court rejected that characterisation. Multiple substantial factual disputes remained at the close of evidence, including whether the applicant had removed complainants' underwear without warning or consent, and whether penetration had occurred as described. The applicant also acknowledged having lied to the Health Care Complaints Commission in 2013 about the first incident, placing his credibility squarely in issue. The tendency evidence retained significant probative value in relation to those matters, and the trial judge did not err in instructing the jury on it.

Whether the tendency directions caused a miscarriage of justice

The Court accepted that the tendency direction was not in accordance with the preferred approach identified in DPP v Roder and JS v R [2022] NSWCCA 145. However, it concluded that when the summing up was read as a whole, the jury would not have been deflected from their task of determining whether each element of each offence had been proved beyond reasonable doubt. No miscarriage of justice resulted.

Leave was refused on grounds 2, 4 and 5, and granted on grounds 1 and 3. The appeal was dismissed.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 61H(2) of the Crimes Act 1900 (NSW), a patient receiving osteopathic treatment is "in the care of" their treating practitioner and therefore "under the authority of" that practitioner for the purposes of the aggravated sexual offence provisions.
  • Significant probative value for tendency evidence is assessed at the time of the pre-trial ruling, but the Court of Criminal Appeal confirmed it must also be present at the close of evidence at trial; where multiple substantial factual disputes remain, the tendency evidence does not lose its probative character simply because some aspects of the physical contact are uncontested.
  • A tendency direction that does not strictly follow the preferred approach in DPP v Roder will not automatically produce a miscarriage of justice; the summing up must be considered as a whole to determine whether the jury was deflected from its proper task.
  • No error was established in directing the jury on tendency evidence where the pre-trial admissibility ruling remained binding and the underlying factual matters in issue had not fundamentally changed by the trial's conclusion.
  • In dismissing the appeal, the Court reinforced that the credibility of an accused, including acknowledged dishonesty to a regulatory body, can itself constitute a substantial factual matter to which cross-admissible tendency evidence may remain relevant.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61D(1A) (rep), 61E (rep), 61H(2), 61J(1) and (2)(e), 61KD(1)(a), 61M(1) and (3)(c) (rep), 61O (rep), 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
- DPP v Benjamin Roder (a pseudonym) [2024] HCA 15; 98 ALJR 644
- Moore (a pseudonym) v The King [2024] HCA 30; 98 ALJR 1119
- Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62
- TL v The King (2022) 275 CLR 83; [2022] HCA 35
- JS v R [2022] NSWCCA 145
- The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
- McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50
- Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44
- Huynh v The Queen (2013) 214 CLR 1; [2013] HCA 6
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
- Astill v R [2024] NSWCCA 118