Hamilton (a pseudonym) v The Queen [2021] HCA 33

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

KEANE, EDELMAN, STEWARD AND GLEESON JJ

HAMILTON (A PSEUDONYM) APPELLANT

AND

THE QUEEN RESPONDENT

Hamilton (a pseudonym) v The Queen

[2021] HCA 33

Date of Hearing: 22 June 2021

Date of Judgment: 3 November 2021

S24/2021

ORDER

Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation

H K Dhanji SC with D R Randle for the appellant (instructed by George Sten & Co)

H Baker SC with B K Baker for the respondent (instructed by Office of the Director of Public Prosecutions (NSW))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Hamilton (a pseudonym) v The Queen

Criminal practice – Trial – Directions to jury – Where appellant charged with ten counts of aggravated indecent assault against three of his children – Where appellant did not seek that counts be tried separately – Where appellant alleged complainants' evidence was inconsistent and had been concocted – Where appellant did not seek anti‑tendency direction and no anti‑tendency direction given – Where trial judge gave Murray direction requiring jury not to convict on any count unless satisfied that evidence of each child was honest and reliable in relation to that count – Where trial judge directed jury to give separate consideration to each count – Whether trial miscarried because of failure to give anti‑tendency direction.

Words and phrases – "anti‑tendency direction", "concoction of evidence", "counts tried together", "failure of counsel to seek a direction", "forensic advantage", "forensic strategy", "impermissible tendency reasoning", "miscarriage of justice", "multiple complainants", "Murray direction", "separate consideration direction", "stark contest of credibility".

Criminal Appeal Act 1912 (NSW), s 6(1).