Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15

HIGH COURT OF AUSTRALIA

GAGELER CJ,

GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ

THE DIRECTOR OF PUBLIC PROSECUTIONS APPLICANT

AND

BENJAMIN RODER (A PSEUDONYM) RESPONDENT

Director of Public Prosecutions v Benjamin Roder (a pseudonym)

[2024] HCA 15

Date of Hearing: 13 March 2024

Date of Judgment: 17 April 2024

M85/2023

ORDER

1. Special leave to appeal is granted.

2. Appeal allowed.

3. Set aside the order of the Court of Appeal of the Supreme Court of Victoria made on 31 October 2023 and, in its place, order that:

(a) leave to appeal be granted and the appeal be allowed;

(b) the interlocutory decision of the County Court of Victoria made on 12 September 2023 be set aside; and

(c) the matter be remitted to the County Court of Victoria.

On appeal from the Supreme Court of Victoria

Representation

R J Orr KC, Solicitor-General for the State of Victoria, with S C Clancy and M-Q T Nguyen for the applicant (instructed by Office of Public Prosecutions (Vic))

T Kassimatis KC with C K Wareham for the respondent (instructed by Dribbin & Brown Criminal Lawyers)

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

CATCHWORDS

Director of Public Prosecutions v Benjamin Roder (a pseudonym)

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.