The King v AR [2026] HCA 10 — Decided 8 April 2026

Australia’s highest court has handed down an important ruling that clarifies how courts must handle a particular type of evidence in criminal trials — especially in cases involving sexual offences. If you or someone close to you is facing multiple charges, this decision directly affects how the prosecution can build its case and what the jury must be told.

What is “Tendency Evidence”?

In plain terms, tendency evidence is when the prosecution argues: “This person has a pattern of behaving in a certain way, and that pattern makes it more likely they committed the offence we’re charging them with.”

For example, if someone is accused of a sexual offence against a child on three separate occasions, the Crown might argue that the similarity between those occasions shows the accused has a “tendency” to behave that way — and use that tendency as part of the case against them.

It is powerful evidence. Used incorrectly, it can lead a jury to convict someone not because the evidence on a specific charge is strong enough, but because they have formed a general negative view of the accused. That is why the rules around it matter so much.

What Happened in This Case?

A man known as AR was tried in New South Wales for seven sexual offences against a 10-year-old girl across three separate occasions. He was convicted of five of the charges and acquitted of two.

At the trial, the prosecution relied on the evidence of those three alleged occasions not only to prove the individual charges, but also to argue that AR had a “tendency” to commit this kind of offence. The same evidence did double duty — proving the charges and proving the tendency.

The trial judge directed the jury that, when deciding whether the tendency existed, they did not need to be sure the conduct happened beyond reasonable doubt — they could find the tendency existed on a lower standard. The jury also heard, repeatedly throughout the summing up, that they needed to be satisfied beyond reasonable doubt before finding AR guilty of each charge.

AR appealed his convictions. The NSW Court of Criminal Appeal agreed the direction was flawed and ordered a retrial. The prosecution then appealed to the High Court of Australia.

What Did the High Court Actually Decide?

The seven justices split four to three, which tells you something important: this was a genuinely difficult legal question. The majority and the minority reached opposite conclusions on the same facts.

The majority said (4 justices):

• It is permissible and appropriate for the prosecution to use the same incidents as both the basis for the charges and as the tendency evidence. There is no rule requiring separate, independent evidence to prove a tendency.
• Framing a tendency in specific terms that closely mirror the charges is not a problem. In fact, specificity often makes tendency evidence more useful, not less.
• The direction the trial judge gave — while not perfectly worded — did not undermine the jury’s understanding that they had to be sure of guilt beyond reasonable doubt. The trial judge said “beyond reasonable doubt” so many times throughout the summing up that there was no real risk of the jury being confused.
• The accused’s argument that this amounts to circular reasoning — using the charges to prove the tendency, and the tendency to prove the charges — was rejected. This type of reasoning is not circular or illegal. It is how tendency evidence is meant to work.

The minority said (3 justices):

• Where the tendency is described in almost exactly the same words as the charges, and the only evidence of that tendency comes from the same complainant on only a handful of occasions, the risk that the jury would blur the different standards of proof was real and serious.
• The jury was effectively asked to decide whether the conduct probably occurred (to establish the tendency), and then separately asked whether the same conduct occurred beyond reasonable doubt (to prove the charges). The directions given were not strong enough to guide the jury through that distinction safely.
• The result was a miscarriage of justice. AR should have received a retrial.

Why Does This Matter If You’re Facing Charges?

If you are facing multiple charges — particularly sexual offences against the same person — the prosecution may seek to use those very charges as tendency evidence against you. Following this ruling, they are entitled to do exactly that, even if there are no other incidents beyond what is already on the indictment.

What this means in practice:

• The prosecution has more tools available than many people realise. Tendency evidence can now be based entirely on the charged incidents, framed specifically, and still be treated as lawful by a court.
• The jury direction given by the trial judge becomes absolutely critical. A direction that is imprecise or confusing — even if legally permissible — can result in a jury convicting you without properly applying the standard of proof to each individual charge.
• The summing up as a whole is what matters on appeal. A single flawed direction will not automatically win you an appeal; courts will look at everything the judge said to the jury across the entire trial.

Does This Affect Queensland Cases?

While Queensland does not use exactly the same legislation as NSW, the fundamental principles confirmed by the High Court — what tendency evidence is, how it works, and what standard of proof applies to each stage of the reasoning — are principles of Australian criminal law that apply everywhere.

Queensland courts will treat this decision as highly persuasive. If you are facing charges in Queensland where the prosecution intends to rely on tendency or propensity evidence, the reasoning in this case will shape the arguments available to both sides.

Common Questions

Can the prosecution use the charges themselves to prove I have a tendency?

Yes. The High Court confirmed this is lawful, even without any separate or independent evidence of other incidents. The same evidence can be used to prove both the charges and the tendency.

Does the jury need to be sure I committed the acts before they can find I have a tendency?

No — and this is one of the most important and counterintuitive aspects of the law. A jury can conclude a tendency probably exists on a lower standard than beyond reasonable doubt, and then use that probable tendency as one piece of the reasoning toward a guilty verdict on the charge itself. Only the final verdict on guilt requires proof beyond reasonable doubt.

If the jury direction at my trial was wrong, does that mean I get an appeal?

Not automatically. Courts look at the whole picture — everything the judge told the jury from start to finish. Even if one direction was imperfect, if the summing up overall was clear about the standard of proof required, an appeal based on that direction alone is unlikely to succeed. The error needs to have created a real risk that the jury convicted you without being satisfied beyond reasonable doubt.

What if I am charged with similar offences against the same person on multiple occasions?

This is precisely the scenario this ruling addresses. The prosecution can use all of those incidents as tendency evidence in relation to each other. The closer the circumstances of each incident, the more powerful that tendency evidence will be. Getting the right legal advice early — before and during trial — is essential to understanding how the prosecution intends to use this evidence and how best to challenge it.

 

If any of this affects a matter you are dealing with, our criminal lawyers are available to speak with you. Call us on 07 3229 3166 or book a confidential consultation online.