Recent Cases

Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15 (17 April 2024) (Gageler CJ; Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ)


Criminal practice – Trial – Directions to jury – Tendency – Where respondent due to stand trial on charges of sexual offences committed against two children of former partner – Where prosecution served tendency notice stating intention to rely on evidence of uncharged and charged acts to support alleged tendency on part of respondent – Where respondent applied to trial judge for ruling about form of direction to be given to jury regarding standard of proof to be applied when addressing evidence of charged acts to determine whether alleged tendency established – Where trial judge ruled jury be directed that, before they use charged acts for tendency purposes, they must find that conduct to be proved beyond reasonable doubt – Where Court of Appeal upheld trial judge’s proposed direction and found to direct otherwise would invite jury to engage in “circular reasoning” and “apply a less rigorous standard of proof” to charges than beyond reasonable doubt – Whether trial judge’s proposed direction precluded by s 61 of Jury Directions Act 2015 (Vic) – Whether, in any event, erroneous for trial judge to give proposed direction.

Words and phrases – “beyond reasonable doubt”, “charged act”, “elements of the offence”, “intermediate fact”, “jury”, “jury direction”, “standard of proof”, “tendency”, “tendency direction”, “tendency evidence”.