A prosecutor told a trial judge that the accused’s earlier grabbing of the complainant’s wrist and grazing of her waist was not being relied on as evidence of sexual interest, and was there as narrative only. She then spent her closing address arguing that he had been testing the waters, that the offending was brazen and opportunistic, and that the thrill of getting caught was exactly what made it exciting. No propensity direction was given, because after that address both counsel told the judge one was not necessary.
In R v Welton [2026] QCA 164, delivered on 4 September 2026, the Court of Appeal held that on those facts a direction was required anyway. Three convictions were set aside and a new trial ordered. Smith J wrote the reasons; Bond JA and Doyle JA agreed with them and with the orders proposed.
The principle is old. What is worth a practitioner’s attention is what the address did to it. A direction was called for on the narrative footing anyway, because evidence admitted for a purpose other than propensity ordinarily requires the jury to be told it may be used for that purpose and no other, and the trial judge gave no direction of either kind, at [60]. What the closing address added was the thing that made the omission fatal. It invited the very reasoning the prosecution had disclaimed, and so made the missing direction material.
What the Court decided
| Question | How it arose | What the Court held | Status |
|---|---|---|---|
| Did the prosecutor’s disavowal settle how the jury would use the evidence? | Sole ground of appeal | No. Despite the disavowal, “the way it was put to the jury invited the jury to treat it that way”, at [54] | Held. Dispositive |
| Should a direction have been given? | Same ground | Yes, on these facts. “[I]n light of the way the prosecutor put the argument and the nature of the evidence”, at [76] | Held. Expressly confined to this trial |
| Is there an absolute rule requiring a tendency direction? | Respondent’s answer, on Hamilton | No. “[T]here is no absolute rule as to the provision of a tendency direction”, at [62] | Accepted, then Hamilton distinguished on its features |
| Does defence counsel not asking for the direction defeat the ground? | Respondent’s submission | No. It “is not necessarily fatal to the argument there has been a miscarriage of justice”, at [74] | Held |
| Did the judge’s other directions cure the risk? | Respondent’s alternative | No. They “did not rectify the problem, considering he repeated the prosecution submission”, at [79] | Held |
| Was the omission material? | Consequence of the above | It “could realistically have affected the jury’s reasoning” and a miscarriage occurred, at [80] | Held |
| Was the creepy staring and weird vibes evidence admissible? | Raised by the Court itself | “[C]onclusory and arguably not admissible”, but no objection was taken, at [56] | Doubted, not decided |
What the closing address changed
The complainant was 13. The appellant was a 55 year old boarder in her family’s house. Her accounts were admitted through two statements taken under s 93A of the Evidence Act 1977 (Qld), the second of which added, for the first time, that he would grab or graze her waist before the charged acts.
Before the closing address the trial judge asked whether that evidence required a sexual interest direction. The prosecutor answered that the prosecution was not relying on it as evidence of sexual interest, and that it was there as part of the narrative, at [39]. That is a common and perfectly proper position.
The address then went somewhere else. The Court recorded the prosecutor submitting that the appellant had tested the waters and the complainant did not react, that the touches were fleeting and innocuous but told him how a 13 year old might respond to being alone with him, and that when another window opened he acted, at [32] to [37].
The trial judge noticed. After the address he asked counsel a second time whether a specific direction should be given. On that occasion both the prosecutor and defence counsel said it was not necessary, at [40]. So none was given, and the judge went on to summarise the Crown contentions to the jury, including that the defendant saw his chance, tested the waters, and it escalated from there, at [41] and [42].
The finding that decides the appeal is one sentence. Although the prosecutor had disavowed propensity, “the way it was put to the jury invited the jury to treat it that way”, at [54]. The Court identified the risk plainly at [58]. There was “the potential a jury could misuse such evidence and reason that the appellant was the sort of person to commit the charged offences”.
Both counsel said no, and it made no difference
The Court began from the ordinary rule. Once evidence of that nature is admitted, “ordinarily a warning against propensity reasoning is required”, at [60], citing McHugh J in BRS v The Queen (1997) 191 CLR 275, 305; [1997] HCA 47. Where evidence is admitted for a reason other than propensity, the judge “must direct the jury that they can use the evidence for the relevant purpose and no other purpose”. Here the trial judge did neither.
The respondent’s answer was that trial counsel had not asked. The Court gave it short shrift, relying on De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [35] and on MDP v The King (2025) 99 ALJR 969; [2025] HCA 24. The absence of a request “is not necessarily fatal to the argument there has been a miscarriage of justice”, at [74], because the summing up is the trial judge’s responsibility and it is the judge who must ensure a fair trial. The Court added at [75] that in any event “it is hard to see that there was any forensic advantage in not having the direction”, the evidence having been aired in both the address and the summing up.
That is the practical lesson, and it cuts both ways. Silence from the defence did not forfeit the ground, at [74], and a joint position at the bar table did not answer the judge’s own responsibility for the summing up. Counsel for the Crown who disclaims a use in argument and then invites it in the address risks a retrial.
Where Hamilton, He and CDY sit
The respondent’s starting point was Hamilton v The Queen (2021) 274 CLR 531; [2021] HCA 33 at [42], where the High Court said there is no absolute rule about tendency directions. The Court of Appeal accepted that, at [62]. It did not reject the proposition; it declined its application. Hamilton concerned 10 counts against three children, the Crown there had not invited tendency reasoning, a Murray direction had been given, and the point had produced dissents both in New South Wales and in the High Court, at [64]. Here, at [65], there was “only one complainant with a limited number of counts, where the propensity evidence, relied on by the prosecutor, may have tipped the balance in favour of the prosecution”.
The Court then set against that a passage from the Hamilton majority, that courts must be astute to protect an accused against a risk of impermissible tendency reasoning that is peculiarly strong where sexual offences are alleged, adding that “[t]he risk depends on the issues presented by the parties and the other directions given by the trial judge”, at [63].
Two recent Queensland decisions did the sorting. R v He [2025] QCA 245 was considered, at [66] to [72]. There the earlier touching of a client during a paid massage was not led as evidence of sexual interest, the prosecutor addressed on testing the waters and gradual progression, no direction was given, and the appeal succeeded. The Court said at [72] that “[t]he vice dealt with in He is similar to the present case”. R v CDY [2025] QCA 249 was distinguished, at [73], because the uncharged conduct there was previous violence, which “could not possibly show a sexual interest by the appellant in the complainant”.
The line drawn between those two cases is one of capability. Where the uncharged conduct could carry an inference of sexual interest and the address invited it, as here, a direction was called for. Where the conduct could not carry the inference, as in CDY, there was “no risk of impermissible reasoning” to guard against.
Questions this raises
Does a prosecutor’s disclaimer settle the use a jury will make of the evidence?
No. In Welton the prosecution said before the address that it was not relying on the earlier touching as evidence of sexual interest, at [39], and the Court still held that “the way it was put to the jury invited the jury to treat it that way”, at [54]. A purpose given to the judge beforehand does not bind what happens in the address, and here it was the address that made the missing direction material.
Is a propensity direction now required in every sexual offence trial involving uncharged conduct?
No, and the judgment says so. A warning is “ordinarily” required once such evidence is admitted, at [60], its content “depends on the facts of the trial”, at [61], and “there is no absolute rule”, at [62]. The Court’s own conclusion is framed for this trial, in light of how the prosecutor put the argument and the nature of the evidence, at [76].
Does it help the Crown that defence counsel agreed no direction was needed?
Not on the facts of this case. The absence of a request “is not necessarily fatal to the argument there has been a miscarriage of justice”, at [74], because responsibility for the summing up rests on the trial judge. The Court also found no apparent forensic advantage to the defence in going without it, at [75], which suggests a genuine tactical reason might still carry weight in another case.
What direction should have been given about the uncharged touching?
The Court set it out at [76]. The trial judge “should have given a direction that the evidence of the waist/wrist grabbing, and the creepy staring was admitted as narrative evidence only and was not to be used for another purpose and not as evidence of sexual motive or interest”, coupled with a direction that the jury could not reason that the appellant was the type of person to commit the charged offences.
Did the Court decide anything about the admissibility of the evidence itself?
No. It observed that the complainant’s description of the smiling and staring as creepy “was conclusory and arguably not admissible”, and that it is hard to see how her evidence about weird vibes was admissible, at [56]. It then recorded that no objection was taken and that the trial and the appeal both proceeded on the basis that the evidence was properly before the jury. The point was raised and left there.
What the judgment leaves open
Two things, both flagged by the Court rather than argued. The admissibility of the creepy staring and weird vibes evidence, doubted at [56] and not decided. And whether the older sister’s account, that the complainant had told her the appellant had been assaulting her since January 2023, should have been left as preliminary complaint evidence at all, which the Court said in a footnote to [57] arguably should not have been, because the general complaint was not limited to the charged acts.
One thing that is not open. The judgment says nothing about the proviso, and should not be read as having applied or declined it. The analysis at [77] to [80] is about materiality and miscarriage.
The orders are at [81]. The appeal was allowed, the verdicts of guilty on each count were set aside, and a new trial was ordered. The reasons are on AustLII, and the section under which the complainant’s statements were admitted is in the current reprint of the Act.
Related reading
- The King v Ko: intent to import and the directions a jury needs
- Farrugia v The King: shared counsel for co-offenders on sentence
- Astolfo v OYF: a stay of bail and the limits of the power
- Contact Fraser Lawyers
Facing a criminal charge in Queensland? What a jury is told about evidence, and what it is told not to do with it, can decide a trial. Contact Fraser Lawyers to discuss where you stand. |
This article is general information only and is not legal advice. The law referred to can change, and every situation turns on its own facts. Contact Fraser Lawyers for advice specific to your circumstances.
Published 16 September 2026.
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