The King v. AR

Lower Court Judgment

03/03/2025 Supreme Court of New South Wales (Court of Criminal Appeal) (Wright, Ierace and Rigg JJ) 

[2025] NSWCCA 22

Catchwords

Criminal law – appeal – conviction – where appellant convicted of two counts of sexual intercourse with a child between the ages of 8 and 10 and one count of sexual touching – Crimes Act 1900 (NSW) ss 66C(1) and 66DB(a) – trial by Jury – tendency evidence – standard of proof –  where evidence relied upon to establish the tendency was the same evidence relied upon to establish the counts on the indictment –  where trial judge directed jury to make findings in respect of the charged conduct in order to determine if the tendency was established - whether miscarriage of justice was occasioned by a misdirection of law – whether Court of Appeal erred by concluding that reliance upon the same evidence to establish the tendency as the evidence relied upon to establish the counts on the indictment was “inconsistent with the nature of tendency evidence” – whether contrary to R v Bauer (a pseudonym) (2018) 266 CLR 56 and Director of Public Prosecutions v Roder (a pseudonym) (2024) 98 ALJR 644.