New v R

[2025] NSWCCA 32

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Evidence
2. › Tendency evidence
3. › Admissibility
4. › Significant probative value
5. › Whether evidence adduced at trial went beyond asserted tendency
6. › Whether evidence of non-consensual touching of conscious woman probative of tendency to touch unconscious women
7. › Evidence Act 1995 (NSW), ss 97(1), 101
1. Evidence
2. › Tendency evidence
3. › Directions to jury
4. › Whether tendency directions undermined standard of proof beyond reasonable doubt
5. › Direction to make anterior findings as to occurrence of charged and uncharged conduct
6. › Whether jury deflected from fundamental task
7. › Criminal Procedure Act 1986 (NSW), s 161A(1)
1. Criminal Law
2. › Appeal
3. › Appeal against conviction
4. › Miscarriage of justice
5. › Wrong admission of tendency evidence
6. › Whether miscarriage of justice occasioned
7. › Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6
1. Criminal Law
2. › Appeal
3. › New trial or acquittal
4. › Whether interests of justice require acquittal or new trial
5. › Third trial
6. › Oppressiveness
7. › Responsibility of prosecution for error
8. › Criminal Appeal Act 1912 (NSW), s 8(1)

Quick Take

Where tendency directions require the jury to make anterior findings as to whether charged and uncharged conduct occurred, and the charged acts form a substantial part of the tendency evidence, there is a real risk that the standard of proof beyond reasonable doubt is undermined, particularly where there are few acts relied upon for the tendency.