31. Tendency Directions — Is There an Appeal Point? (Vic)¶
Scope and currency
Cheat sheet · The King v AR HCA 10 (2026) 428 ALR 646; 100 ALJR 545 (8 April 2026) · Evidence Act 2008 (Vic) s 97 · Jury Directions Act 2015 (Vic) s 61
Starting point: tendency evidence is circumstantial evidence operating through an intermediate fact (the tendency). The jury finds the tendency on a lesser standard, then deploys it as circumstantial support in deciding whether the elements are proved beyond reasonable doubt. After AR, departure from the Roder preferred form is not of itself an error of law or a miscarriage — the question is always the summing up as a whole. Work the gates in order.
The case in 60 seconds¶
| Element | Detail |
|---|---|
| Facts | AR indicted on 7 counts of child sexual offences; single complainant GC, aged 10; 3 incidents over school holidays Sept/Oct 2020; AR in a relationship with GC's mother. Each incident: watching a movie → complainant falls asleep → wakes to digital touching/penetration. |
| Verdicts | Convicted counts 3, 5, 7 (Narara incidents); acquitted counts 1–2 (West Gosford — "comparative frailty", recalled after a "vivid dream" 1 yr 9 mths later). Aggregate 9 yrs 6 mths; NPP 4 yrs 9 mths. |
| Tendency notice (s 97(1)(a)) | (a) a particular state of mind — sexual interest in GC; and (b) acting on it by digital penetration and/or sexual touching when she had fallen asleep beside him watching a movie. Evidence entirely co-extensive with the charged acts; no uncharged acts; no defence objection to admissibility; cross-admissible across counts. |
| NSWCCA | Convictions set aside, retrial ordered: tendency "replicated"/"coincided precisely" with the charges (Kanbut); circular/"bootstrap" reasoning; direction that the jury need not find the charged conduct proved BRD (only "at least some of the conduct occurred") deflected the criminal standard, contrary to Roder. |
| HCA (6–1) | Crown appeal allowed; NSWCCA set aside; convictions reinstated. Gageler CJ, Gordon, Steward, Gleeson, Jagot, Beech-Jones JJ; Edelman J dissenting. |
| Ratio — 4 propositions | 1. Specificity replicating the charged conduct is not inconsistent with the nature of tendency evidence — it generally enhances significant probative value. 2. Using charged acts to find a tendency, then the tendency to prove the charges, is not circular — the tendency is an intermediate fact in a circumstantial case. 3. Non-compliance with the Roder preference is not of itself error or a miscarriage. 4. The test is whether the summing up as a whole created a real or practical risk of undermining proof of the elements BRD. |
The decision sequence¶
GATE 0 What is the tendency built from?
Is the tendency evidence co-extensive with the charged acts (no uncharged acts adduced)? → Yes: this is the AR scenario. The charged acts may be used to find the tendency, and the tendency then used to prove the charges. This is not circular or "bootstrap" reasoning — go to Gate 1. → No (uncharged acts relied on): the AR circularity rebuttal is not the live issue; the intermediate-fact structure and Gates 3–5 still apply.
GATE 1 Is the complaint that the notice replicates the charges?
Does the s 97(1)(a) tendency notice mirror the elements of the charged offences? → Yes: not a valid objection. Specificity generally enhances significant probative value because it demonstrates closer correspondence to the conduct in issue. A tendency may permissibly be formulated at a high level of specificity. → Argument relies on Kanbut: distinguish it. The error in Kanbut v The King (2022) 390 FLR 238 was overspecification across multiple complainants — grouping eight unrelated acts and robbing the evidence of capacity to prove the counts cross-admissibly. Where the specificity relates to a single complainant and captures features common to all incidents, Kanbut does not bite. → Residual route: attack under s 101(2) — scrutinise the number of instances and the source of the evidence to argue probative value is outweighed by the danger of unfair prejudice. Do not resist merely because the notice "mirrors" the charges.
GATE 2 Did the trial judge follow the Roder preference?
Did the judge identify the evidence relied on and ask whether the jury was satisfied the tendency was established — rather than directing preliminary findings of fact on whether the charged conduct occurred? → Yes (preferred form): no format complaint. Confirm Gate 4, then stop. → No (jury invited to decide whether the accused "did in fact conduct himself in the way the Crown alleges"): non-compliance is not of itself an error of law or a miscarriage of justice — go to Gate 3.
GATE 3 The 'summing up as a whole' test
Did the direction, read in the context of the whole summing up, give rise to a real or practical risk of undermining the jury's understanding that the elements must be proved beyond reasonable doubt? The three neutralising features in AR — check each against the transcript: → Saturation: was the summing up saturated with the criminal standard? In AR the judge reiterated at least 30 times that every element of each charge had to be proved beyond reasonable doubt. → Express insufficiency warning: was the jury told that finding the tendency was not enough by itself to prove guilt beyond reasonable doubt? → Separate consideration: was the jury directed to consider each count separately, with careful guidance on the need for separate satisfaction? → All three present: risk neutralised → no miscarriage. → One or more absent: the risk of dilution is live → arguable miscarriage; go to Gate 5.
GATE 4 Was the intermediate-fact standard correctly isolated?
Did the judge keep the lesser standard for the tendency separate from beyond reasonable doubt for the elements? s 61 Jury Directions Act 2015 (Vic) (NSW equivalent: s 161A Criminal Procedure Act 1986): a jury must not be directed that evidence needs to be proved beyond reasonable doubt to the extent that it is adduced to establish a tendency. → Correct: lesser standard (e.g. probability / "at least some of the conduct occurred") for the intermediate fact; beyond reasonable doubt for every element. → Error to look for: a direction requiring the tendency itself to be proved beyond reasonable doubt (contrary to s 61), or a direction that blurs the two so the jury carries the lesser standard through to the elements.
GATE 5 Is this a 'thin' tendency case? — the countervailing warning
Single complainant, small number of charged incidents, tendency expressed in terms closely replicating the elements? → Yes: actively request a specific warning at trial — modelled on Edelman J's dissent in AR or Fagan J's formulation in Carter v The King NSWCCA 43 — that the tendency evidence does not by itself establish that each count is proved beyond reasonable doubt, and that tendency findings must not distract the jury from its ultimate duty of separate proof. → Warning requested and refused / not given: this is the appeal point. Argue with Gate 3: absent saturation and an express insufficiency warning, the risk of the jury treating ultimate proof as a foregone conclusion on a lesser standard is acute. → No: the AR majority position holds; the appeal prospects are poor.
The two stages at a glance¶
| Stage | What is decided | Standard | Effect |
|---|---|---|---|
| Intermediate | Whether the accused possessed the asserted tendency, on the direct evidence considered collectively | Lesser standard (e.g. probability); s 61 JDA (Vic) / s 161A CPA (NSW) | Establishes the intermediate fact only — not enough by itself to prove guilt |
| Ultimate | Whether the essential elements of each charged offence are made out | Beyond reasonable doubt | Tendency deployed as circumstantial support; each count considered separately |
Why this is not circular¶
The majority's reasoning: It is logically sound for a jury to consider the same body of evidence at different stages of its deliberations, with a different onus and for a different purpose. There is no strict logical divide between being satisfied of the existence of the tendency and being satisfied of the underlying facts that disclose it — the distinction serves to guide the reasoning process, not to quarantine the evidence.
Which argument survives AR¶
| Argument | Status after AR | Where it lives now |
|---|---|---|
| Tendency "replicates" / "coincides precisely" with the charges | Dead. Specificity is not inconsistent with the nature of tendency evidence | s 101(2) — number of instances, source |
| Circular / "bootstrap" reasoning | Dead. Tendency is an intermediate fact in a circumstantial case | — |
| Departure from the Roder preferred form | Not of itself an error of law or a miscarriage | Gate 3 — summing up as a whole |
| Deflection of the standard of proof | Live, but only on a "real" or "practical" risk assessment | Gates 3–5; countervailing warning |
| Kanbut overspecification | Live only where specificity groups unrelated acts across multiple complainants | s 97 significant probative value |
Edelman J dissenting — the defence template¶
• The risk profile: a tendency comprised of a very small number of charged incidents (potentially only two, given the West Gosford acquittal) from a single complainant, expressed in terms closely replicating the elements, makes the risk of diluting the standard of proof extremely acute.
• The cognitive danger: if the jury is told the underlying conduct need only probably have occurred to establish the tendency, there is a grave danger it will treat ultimate proof of the charges BRD as a foregone conclusion reached on a lesser standard.
• The cure: a powerful, explicit warning that the tendency evidence does not by itself establish that each count is proved BRD, and that the tendency findings must not distract the jury from its duty of separate proof on each count.
• Consequence of its absence: on Edelman J's view the convictions should have been set aside. Use this passage — with Fagan J in Carter v The King NSWCCA 43 — as the model when requesting the direction at trial.
Practice points — Victoria¶
• Prosecution drafting: under s 97 you may draft a highly specific notice replicating the charged conduct; specificity helps meet the significant probative value threshold.
• Defence: you cannot resist a notice because it mirrors the charges. Scrutinise the number of instances and the source of the evidence, and run s 101(2).
• Trial judges (Vic): adhere strictly to the Roder format — direct on the existence of the tendency, not on findings of fact as to whether the charged conduct occurred.
• If the judge slips: before appealing, assess whether the summing up as a whole has sufficiently saturated the jury with the beyond reasonable doubt standard.
• Preserve the point: in a thin tendency case, request the countervailing warning on the record — Gate 5.
Currency watch¶
• 8 April 2026 — The King v AR HCA 10 delivered; 6–1 (Gageler CJ, Gordon, Steward, Gleeson, Jagot, Beech-Jones JJ; Edelman J dissenting). Crown appeal allowed; NSWCCA set aside; convictions reinstated.
• 2024 — DPP (Vic) v Roder (a pseudonym) (2024) 281 CLR 18 establishes the preferred direction format; AR confirms it is a preference, not a rule.
• 2022 — Kanbut v The King (2022) 390 FLR 238 confined to overspecification across multiple complainants.
• Note — AR is a NSW appeal decided under the Evidence Act 1995 (NSW); it applies in Victoria through the Uniform Evidence Law (Evidence Act 2008 (Vic) s 97) and s 61 Jury Directions Act 2015 (Vic).