In The King v AR [2026] HCA 10 (8 April 2026) (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ), the High Court by majority allowed an appeal from the New South Wales Court of Criminal Appeal (CCA), restoring convictions for child sexual offences. The joint reasons of Gageler CJ, Gleeson, and Beech-Jones JJ provide useful guidance on the formulation of ‘same-act’ (or ‘single-act’) tendency evidence and related directions in cases where the tendency alleged is derived from the conduct charged in the indictment. The appeal required consideration of the statutory tendency rule in s 97 of the Evidence Act 1995 (NSW), together with the admissibility framework in ss 97A and 101.
The respondent was tried on an indictment charging seven sexual offences against a 10-year-old complainant, GC, involving three separate incidents (The King v AR [2026] HCA 10 at [1], [6], [13] (Gageler CJ, Gleeson, and Beech-Jones JJ)). The Crown alleged a tendency on the part of the respondent to “have a sexual interest in GC and to act on that sexual interest by penetrating her vagina with his fingers and/or sexually touching her when she had fallen asleep beside him watching a movie” (The King v AR [2026] HCA 10 at [20] (Gageler CJ, Gleeson, and Beech-Jones JJ)).
The evidence relied on to establish this tendency was the offending behaviour itself; there was no evidence of uncharged acts. In directing the jury, the trial judge issued an invitation to find the alleged tendency established to a “lesser standard than the criminal standard” before using that finding to determine whether the elements of the charges were proven (The King v AR [2026] HCA 10 at [2], [37] (Gageler CJ, Gleeson, and Beech-Jones JJ)).
The CCA quashed the convictions, holding that framing a tendency to “constitute exclusively the offending behaviour itself is inconsistent with the nature of tendency evidence” and encouraged “impermissible circular reasoning” (The King v AR [2026] HCA 10 at [3] (Gageler CJ, Gleeson, and Beech-Jones JJ)).
A majority of the High Court (Gageler CJ, Gleeson, and Beech-Jones JJ; Jagot J writing separately) rejected the CCA’s approach, holding that the “formulation of the alleged tendency and the reliance on the evidence of the charged acts to establish the alleged tendency was not inconsistent with the nature of tendency evidence” (The King v AR [2026] HCA 10 at [4], [67] (Gageler CJ, Gleeson, and Beech-Jones JJ)).
Their Honours noted that “the particularity of the alleged tendency and its capacity to affect the assessment of whether the prosecution has discharged its onus of proof will depend upon the circumstances of the particular case,” and that the “greater the specificity of the alleged tendency the more likely it is that the alleged tendency will be significantly probative” (The King v AR [2026] HCA 10 at [40] (Gageler CJ, Gleeson, and Beech-Jones JJ)). In this case, the relative specificity of the formulation was what gave the evidence its “significant probative value” (The King v AR [2026] HCA 10 at [55] (Gageler CJ, Gleeson, and Beech-Jones JJ)).
The majority clarified that for a tribunal of fact to find a tendency proved to a “lesser standard” by relying on direct evidence of charged acts, and then use that tendency to determine guilt beyond reasonable doubt, “does not involve circular or incoherent reasoning” (The King v AR [2026] HCA 10 at [52] (Gageler CJ, Gleeson, and Beech-Jones JJ)). Rather, the jury simply considers the same evidence at different stages of its deliberations with a different onus of proof and for a different purpose.
Regarding the decision in Director of Public Prosecutions (Vic) v Benjamin Roder (a pseudonym) (2024) 281 CLR 18, the majority reiterated that while trial judges “should” avoid inviting juries to make findings on charged conduct to establish a tendency, this is simply a suggestion to assist trial judges in minimising the risk of a miscarriage of justice (The King v AR [2026] HCA 10 at [10], [140] (Gageler CJ, Gleeson, and Beech-Jones JJ)).
The ultimate question on appeal was whether the direction, considered as part of the “summing up as a whole,” gave rise to a “real” or “practical” risk of “undermining the jury’s understanding of the necessity for proof… beyond reasonable doubt” (The King v AR [2026] HCA 10 at [12], [53] (Gageler CJ, Gleeson, and Beech-Jones JJ)). In this case, the summing up was “saturated with directions to the jury” regarding the proper standard, with the trial judge stating at least 30 times that each element required proof beyond reasonable doubt (The King v AR [2026] HCA 10 at [23], [59] (Gageler CJ, Gleeson, and Beech-Jones JJ)).
As such, there was “no [real] risk that the onus and standard of proof were not understood and properly applied” (The King v AR [2026] HCA 10 at [59] (Gageler CJ, Gleeson, and Beech-Jones JJ)).
Gordon and Steward JJ, and Edelman J (writing separately) dissented (The King v AR [2026] HCA 10 at [62], [119]). Their Honours found a “substantial risk that the jury would not properly apply the correct standard of proof to the charged conduct” (The King v AR [2026] HCA 10 at [115] (Gordon and Steward JJ)). Justice Edelman warned of a “grave danger of confusion of the burden of proof” where the inferred event is “identical to the tendency itself,” leading to reasoning where a “single-act tendency is being used to prove itself” (The King v AR [2026] HCA 10 at [122], [134] (Edelman J)).
Accordingly, a Roder direction was necessary to effect a “clearer delineation between proof of the tendency and proof of the charged conduct” (The King v AR [2026] HCA 10 at [108] (Gordon and Steward JJ)).
