The Court of Criminal Appeal held that the trial judge's tendency direction, which invited the jury to make anterior findings about charged conduct to establish tendency but failed to advise the jury within that direction that it must ultimately be satisfied beyond reasonable doubt on the question of guilt for each charged act, gave rise to a real risk of deflecting the jury from its fundamental task and constituted a material miscarriage of justice. The Court distinguished The King v AR [2026] HCA 10 on the basis that in AR the tendency direction itself contained multiple express references to the standard of proof, whereas in the present case the tendency direction contained none, and general directions on onus and standard of proof given elsewhere in the summing up were insufficient to ameliorate the risk. The Court also held that the risk was heightened where the tendency was based on the evidence of only one complainant in relation to a small number of charged acts, but rejected the unreasonable verdict ground, finding the jury's not guilty verdicts on sexual intercourse counts were rationally explicable by uncertainty in the complainant's evidence as to penetration rather than by doubts about her overall credibility.
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