5 Cases Podcast - Episode 28

Do it.

Do it.

So the important decision that the High Court has just brought down is one called the King and AR, and that's an appeal by the Crown against a decision from the New South Wales Court of Criminal Appeal.

So the Court of Criminal Appeal, uh, ruled that there was a problem with the tendency directions given in AR's case and ruled that the convictions should be quashed, and the Crown appealed that to the High Court.

Now, the High Court upheld the Crown's appeal with the result that AR's convictions have been reinstated, so the ultimate conclusion is that his convictions from the trial court stands.

Now, the judgment is a little bit involved to read, so hopefully I can make things a little bit easier for everybody.

We're dealing with a case involving tendency evidence, where effectively the tendency evidence is each charged act used as tendency evidence in relation to the other charged acts.

So not previous convictions or uncharged acts or a bunch of complainants, just a single complainant, uh, and a few charges.

So there was an argument before the High Court that this is effectively circular reasoning.

So if the jury is not told that the jury should think in respect of each charge that the a- actions of the accused have been proven beyond reasonable doubt, is it the case that they could be satisfied to some lesser standard that the acts occurred and then use that lesser standard to prove, um, that the accused had a particular tendency? And then if they get that far, do they then reason that because the accused had a particular tendency, that might bump up the standard of proof that's been established in respect of a particular charge from something less than beyond reasonable doubt to beyond reasonable doubt? So the-- now that's where the argument basically goes.

Now, the High Court, not unanimously I should add, ruled that that reasoning is fine.

The only proviso, I guess, um, I would say is that the jury have to ultimately understand that before they can find an accused person guilty of any particular count, they must be satisfied beyond reasonable doubt that that particular count occurred.

Now, to do that, if I give you a simple example, if they think that, um, count one probably happened, and then they move to consider count two, and they think count two probably happened, and they move to consider that they also think count one probably happened, so they think the accused might have a tendency to act in a particular way, they might ultimately be satisfied that count two happened beyond a reasonable doubt.

What does that mean for their consideration of count one? So the High Court explained that this is not actually circular reasoning, which was effectively the argument made, and they cons-- go back and consider two important cases of JS and Rhoda, which we'll put in the show notes.

What they say is these cases only address the complaint that if the Crown sought to prove the commission of an offense to a lesser standard and then used that finding of an offense to prove the tendency and then relied on the tendency to prove the offense, then that would be circular, and I'm with them so far.

Uh, but then what the High Court have said is, Rhoda concluded, that is that previous case of Rhoda concluded, that for a tribunal in fact to find that an alleged tendency has been proved to a lesser standard by relying on, among other things, direct evidence of the charged acts, and then they deploy that tendency in determining whether the charged acts have been proved beyond reasonable doubt, that does not involve circular or incoherent reasoning.

So they say, look, the point, the concern identified with such reasoning is not the risk of circular reasoning, but the risk of undermining the jury's understanding of the necessity for proof of the elements of the charge beyond reasonable doubt.

So what do we make of this? I see you're asking me with your face, Sophie.

[laughs] We make of this is-

I am asking you that, that exact question

questionSo firstly, there's nothing wrong with a jury reasoning that one count probably happened, and then deploying that tendency reasoning in respect of another count, and that might have the effect that any particular count is proven beyond reasonable doubt.

That is fine, as long as the jury understand that ultimately, however they reason, and they'll get, um, jury directions in respect of tendency reasoning, they must always understand that before they can move to convict anyone of any offense, they must understand that ultimately they've got to be satisfied beyond reasonable doubt and to no lesser standard that a particular charge has been proven.

Now, I don't pretend that I've explained that better than anybody else can.

I've certainly done my best, and as always, we encourage everybody to read in full the High Court's judgment, and there's a particularly interesting dissent by Justice Edelman in this decision.

Um, but those are, I think, the two main points to make in respect of, um, tendency evidence.