Clegg v R

Judgment

1. HOEBEN CJ at CL: I agree with R A Hulme J.
2. R A HULME J: This is an application for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) against an interlocutory judgment or order of her Honour Judge Huggett in the District Court at Sydney.
3. John Marshall Clegg is to be tried in the District Court in respect of 17 child sexual assault offences he is alleged to have committed in the 1980s against 4 boys who were boarders at a school ("the school") operated by a religious order ("the religious order"). The Crown proposed a joint trial concerning all complainants on the basis that it was relying upon cross-admissibility of tendency evidence.
4. The applicant sought orders to the effect that there be a separate trial in respect of each complainant upon the basis that the Crown should not be permitted to rely upon tendency evidence. Accordingly, her Honour was first called upon to determine the admissibility of evidence pursuant to s 97 of the Evidence Act 1995 (NSW). The question of joint or separate trials would depend upon that determination.
5. Her Honour heard evidence and submissions over six days and gave judgment on 12 September 2014. She determined that the trial in relation to one of the complainants should be severed on the basis that the evidence he would give was not admissible in the trial concerning the other complainants. However, she also determined that the evidence of the other complainants was admissible in the separate trial of the single complainant.
6. The trial concerning the three complainants was due to commence on 7 October 2014. However, the application for leave to appeal was filed in this Court on 29 September 2014. The trial has now been deferred and is due to commence on 13 April 2015. I understand that the trial concerning the fourth complainant is expected to follow immediately after.
7. By his Notice of Application for Leave to Appeal the applicant seeks orders of the same type as had been sought in the District Court. The proposed grounds of appeal are: 1. That her Honour erred in law. 2. That the probative value of the tendency evidence in question does not substantially outweigh the prejudicial effect that it may have on the applicant. 3. That a joint trial of the above counts against the accused would not be a fair trial according to law.
8. A short (one day) extension of time for the filing of the Notice of Application for Leave to Appeal was sought. It was not opposed and should be granted.

The Crown case

1. Included in annexures to an affidavit sworn by the solicitor for the applicant in support of the notice of motion in the District Court was a document summarising the "facts" upon which the proposed Crown case was based. I have derived the following from that document, supplemented by the summary in the judgment of Huggett DCJ.
2. The school was one of a number established and run by the religious order for boys with educational problems, including intellectual disabilities and behavioural problems. It was a boarding school for boys predominantly aged between 8 and 15 years. They lived in dormitories and were grouped together according to their age. They were taught by lay teachers. (The school has since been closed.)
3. During the relevant period in the 1980s there were between 4 and 10 Brothers at the school. Each was allocated a dormitory and was responsible for the care and welfare of the boys in their dormitory. One Brother acted as the "headmaster/prior".
4. The applicant was a Brother who was employed by the religious order and was stationed at the school from 25 May 1983 until 22 June 1985 and again from 19 July 1986 until 1 July 1989.

The complainant MW (counts 1 to 4A)

1. The complainant MW experienced learning difficulties and was sent to the school on 10 September 1980 when he was 8 years old. He was discharged on 15 December 1983. All of the offences alleged in counts 1 to 4A were alleged to have occurred in the period 14 August 1983 to 15 December 1983.
2. Count 1 (indecent assault) involves an allegation that around Fathers' Day in 1983 there was an outing to Newcastle Beach. At some point, MW was in a shower cubicle and the applicant came in and masturbated him to ejaculation.
3. Count 2 (indecent assault) involves an allegation that on an outing to some nearby markets MW was in a toilet cubicle and the applicant entered and masturbated him.
4. Count 3 (indecent assault) involves an allegation that during MW's final school week the applicant came into the school gym change room where MW was getting changed. He cuddled MW and said "When you leave, don't tell anyone what went on here because no one will believe you. That goes for Brother … as well." MW understood him to be referring to the sexual acts that had been committed upon him by the applicant and the other Brother nominated. The applicant then placed his hand on MW's penis on the outside of his clothing, squeezing and rubbing it for about a minute before leaving the change room.
5. Counts 4 and 4A (sexual intercourse without consent, alternatively, indecent assault of a person under the age of 16) involves an allegation that there was masturbation and fellatio by the applicant upon MW during an outing to a factory.

The complainant DJ (count 5)

1. It is count 5 that Huggett DCJ agreed should be the subject of a separate trial. It is useful to refer to the facts alleged by the Crown as it assists in illustrating an aspect of her Honour's assessment of the tendency evidence.
2. DJ commenced at the school when aged 13 and after he began to exhibit behavioural problems. He was at the school from 30 March 1987 until 3 July 1987.
3. One day, DJ went to the toilet where he heard a boy crying. He saw a boy aged about 8 sitting on the toilet crying, holding a piece of toilet paper which had blood staining on it and there was also blood on the boy's underpants. The boy told him that one of the Brothers had hurt him. DJ understood this to mean that he had been sexually assaulted.
4. That night, DJ got out of bed and went to a payphone. He called his parents and begged to be picked up and brought home but was refused. As he hung up the applicant approached and demanded to know what he was doing out of bed. He responded, "Fuck off, I want to go home and get away from you poofter bastards. I know what you do here."
5. The applicant took hold of him and brought him to an office in the middle of the dormitory. He physically assaulted him by slamming his head down onto a desk. He held his head down and had forceful and painful anal intercourse with DJ, saying "This will teach you to keep your mouth shut". After a number of minutes he ejaculated and said "Pull your pants back up, be a good boy, and get back to your room. I don't want to hear another thing from you." This relates to count 5 in which the Crown alleges an offence of sexual intercourse with a person of or above the age of 10 and under the age of 16 whilst being under the authority of the applicant.
6. The next morning the applicant called DJ into his office and asked, "Are you over that rubbish last night?" Two weeks later, DJ returned home for a holiday and never returned to the school.

The complainant JJ (counts 6 to 13)

1. JJ exhibited behavioural problems from the age of 7 and there was domestic violence in the home. He was aged 14 when he first went to the school on 11 February 1987 and remained until 25 March 1988.
2. The Crown alleges sexual assault offences arising from three incidents concerning JJ.
3. The first incident occurred about 3 months after JJ arrived at the school. The applicant invited him to his dormitory one afternoon for a cigarette. He showed him a pornographic magazine, asked him about the size of his penis and then showed him a pornographic movie. The applicant noticed that JJ's penis became erect. He then masturbated and fellated him to the point of ejaculation. When JJ left the applicant told him not to say anything to anyone as they would both get into trouble.
4. The second incident is alleged to have occurred several weeks later. JJ accompanied the applicant to the applicant's residence where they smoked a cigarette. The applicant asked him about the oral sex they had on the previous occasion and whether it made JJ feel good. After JJ responded in the affirmative, the applicant took him into the lounge room and masturbated his penis. He then removed his own penis and wrapped JJ's hand around it, forcing him to masturbate him. He then removed JJ's pants and moved him into another position whereby he penetrated his anus. JJ asked that he stop, complaining that it hurt. The applicant desisted and JJ left.
5. The third incident was another occasion when JJ was smoking a cigarette with the applicant. They smoked a cigarette in the applicant's residence and then the applicant fondled JJ's penis and then had forceful anal intercourse with him.
6. A couple of days after the last incident, JJ climbed a tree and deliberately fell, breaking his collar bone. He claims that he saw this as a way to get away from the school. The Brothers put him on a train and his mother picked him up at the end of the journey and took him to hospital. He did not return to the school.

The complainant JF (counts 14 to 17)

1. JF commenced at the school at age 14 on 10 August 1987 after having been expelled from another school for behavioural problems. He remained until 8 February 1988. JF was a boy then but is now a woman. To avoid confusion but without meaning any disrespect, I will refer to JF by the masculine gender as she was at the time.
2. The Crown alleges two incidents of sexual misconduct by the applicant towards JF. On the first occasion, JF was at the applicant's office smoking cigarettes with him. The applicant exposed his penis to him and then placed JF's hands on it. He then pushed him down to his knees and forced his penis into JF's mouth where he ejaculated. After the semen was cleaned up and JF was allowed to grab a handful of cigarettes he was allowed to leave.
3. The second incident is alleged to have been committed in similar circumstances. It involved JF complying with the applicant's desire that he masturbate the applicant's penis to the point of ejaculation.
4. JF hated the school and ran away on numerous occasions. He finally left on 8 February 1988.

Evidence of the complainants concerning identification

The complainant MW (counts 1, 2, 3, 4 and 4A)

1. MW did not know the applicant by surname, only as "Brother John", whilst he was at the school. Some years later he happened upon the applicant when the latter was engaged as a youth worker at the "Come in Centre" (a drop in centre for homeless youth) at Paddington. It was at this time that MW came to know the applicant by his surname. He described Brother John as "of a medium height" and "beefy" when he was at the school.
2. MW was shown a series of photographs on 9 February 2012, the day he completed his first police statement. He had been shown 1 photograph during the course of completing the statement and 18 photographs afterwards. In relation to each of them he was asked a question like "Can you tell me anything about that photograph?"
3. When MW was shown photograph number 14 and asked, "Can you tell me anything about that photograph?" he replied, "That's Brother John Clegg there". He was asked and clarified that he was referring to the person on the right hand side of the photograph of two male adults with a male child in the middle.

The complainant JJ (counts 6 to 13)

1. JJ did not know the applicant's surname whilst he was at the school either; he simply knew him as Brother John. He said in his police statement that "there was no one else called Brother John except this man"; in fact "there were no other persons working at the school named John whilst I was there either". He provided a description of Brother John as being white, in his early 40's, tall, of medium build with a big stomach, grey hair, clean shaven, and "used to smoke a lot".
2. JJ was interviewed by Michael Eccleston, a Catholic Church appointed investigator, in 2007. He was asked about his claims of having been sexually assaulted by brothers at the school, including the applicant. He confirmed that he only knew the applicant as Brother John. (AB 2 at 278) He was later sent a transcript of the interview that concerned the applicant and it had a Post-It note attached to it with the name "Brother John Clegg" written on it. JJ inferred that the Brother John who had assaulted him was of that name.
3. On 9 December 2010, JJ was shown the same 19 photographs as those that had been shown to MW. He was also asked open questions about whether he could say anything about what was depicted in them. When photograph number 14 was shown he said the person on the right-hand side of the adult males with an adult child in between was "Brother John Clegg. He's the one what um, sexually abused me down at [the school]." JJ volunteered that he did not know his surname until he received paperwork from Michael Eccleston; he had just known him as Brother John. He confirmed that there was no other person named Brother John whilst he was at the school.

The complainant JF (counts 14 to 17)

1. JF described the applicant as his "year adviser", a person to whom students could speak if they had problems. His physical description of the applicant included that he was fat, or of large build; he was tall; and he had whitish-grey hair that was not very long but "he had a lot of it". He wore a pair of pants with a button up shirt with a pocket on either side of the chest that was never tucked in. He always kept a pack of cigarettes of a particular brand in one of the pockets.
2. JF says he left the school in 1988 when he was around 15 years old. He lived on the streets in Kings Cross for the next 12 years. Sometime after he left the school he met the applicant by chance at Centrelink in Haymarket. The applicant gave him the phone number of the Come in Centre at Paddington. JF used the facilities at this centre. He said that the applicant had a cubicle there. On two occasions the applicant took JF into a store room and had JF masturbate the applicant's penis. JF said the last occasion was the day he left the Come in Centre and returned home to live with his mother and he had not seen the applicant since; this was when he was about 15 or 16 years old.
3. JF was shown photographs on 16 September 2011, the day he signed his statement. As with the other complainants, he was asked open questions as to whether he could say anything about them. He identified the applicant in photograph number 14. He said, "That's John Clegg, before I knew him, I think that's John Clegg. … But I knew him with silver hair, he had silver hair when I knew him, but I'm sure that's him. … This photo was taken years before I knew him though, he had silver hair when I knew him, he's got dark hair in the photo, but that's him." He confirmed that this was the man who had sexually assaulted him. He drew an arrow pointing to the man on the right hand side of the photograph and wrote against it: "I believe the man on the right is John Clegg. He has darker hair than when I knew him. It was silver grey in colour."

The asserted tendency evidence

1. By way of a tendency notice dated 6 August 2014 (as amended), the Crown contended that the tendency sought to be proved was the applicant's: "tendency to act in a particular way or to have a particular state of mind, namely: ● To have a sexual interest in 11 to 14 year old boys who were students at [the school] ● To engage in sexual activities with 11 to 14 year old boys who were students at [the school] ● To use his position of authority at [the school] to obtain access to 11 to 14 year old boys so that he could engage in sexual activities with them."

Submissions in the District Court

1. Mr Skinner, counsel for the applicant, made the following submissions opposing the admissibility of the tendency evidence.
2. First, he accepted that evidence that the applicant committed any of the offences, as a brother in a religious order in breach of his vows, in breach of his duties as a citizen, and in breach of his role as a teacher in respect of children in his care, had significant probative value. That acknowledgement was maintained in this Court. The focus of the submissions then (and now) was upon an asserted high risk of prejudice.
3. Prejudice was said to arise in two ways: one, the jury would not be able to avoid "circular reasoning" and two, the case was based upon weak identification of the applicant primarily based upon name.
4. The "circular reasoning" argument was based upon the practical requirement in this case that before a jury could take into account evidence as establishing a tendency it would need to be satisfied that a charged offence had been established beyond reasonable doubt: DJV v The Queen [2008] NSWCCA 272; 200 A Crim R 206. It was contended that the case in relation to each individual complainant was weak. It was "almost impossible" for a jury to be satisfied beyond reasonable doubt of the applicant's guilt looking at the evidence directly pertaining to an individual complainant. The risk was that the jury would take into account the evidence alleging offences against other complainants in the course of finding that offences relating to a particular complainant were established to the criminal standard, and before being satisfied that the tendency had been established to that standard. It was submitted the directions to the jury would not be able to overcome this prejudice.
5. The "weak identification based upon name" submission was really a foundation for the "circular reasoning" submission that the cases concerning individual complainants were weak. It was submitted that there was a risk (the "prejudicial effect" for the purposes of s 101) that a "fragile" identification of one complainant would be strengthened by the identification by another complainant. Another weakness in the identification evidence was said to arise because two of the complainants had contact with the applicant in Sydney after having left the school: the "displacement effect".
6. A further aspect of "weakness" in the individual cases was that "the complaint evidence in relation to each complainant is pretty thin".
7. All of this, it was asserted, was that "inherently weak cases with inherently [weak] identification, all possibly being strapped up by a jury, misusing tendency evidence, tendency evidence in itself that isn't that probative and runs the substantial risk of creating a really unfair prejudice". (Emphasis added.)
8. Counsel disavowed any claim that concoction or contamination between complainants was being contended for.

Judgment in the District Court

1. Huggett DCJ first outlined the nature of the applications with which she was dealing: objection to admissibility of tendency evidence and the related issue of joint/separate trials in respect of each complainant. Her Honour referred to the assertions in the tendency notice and the Crown's claim that there are similarities in the evidence of the various witnesses that established a pattern of behaviour on the part of the applicant revealing the tendencies alleged. She listed the following matters the Crown asserted in this respect (omitting reference to matters relating to DJ and another witness): 1. Each of the complainants attended the school because of troubled family backgrounds and/or behavioural and learning difficulties. 2. Each of the complainants were in the same age range, namely early teenage. 3. The accused was aware of the types of troubles and issues each boy had by virtue of his role at the school. 4. (This became irrelevant with the separation of trial concerning DJ.) 5. The accused established a relationship of emotional intimacy with JJ and JF through acts such as offering them cigarettes and inviting them into his private residence and/or his office. 6. The acts relied upon are similar. He masturbated the penises of MW, JJ and JF; he performed fellatio upon MW and JJ; he encouraged or forced each of MW, JJ and JF to touch his own penis and to masturbate him; he had anal intercourse with JJ and JF; and he squeezed and rubbed the penises of MW and JJ before escalating his sexual behaviour. 7. The accused told MW and JJ not to say anything because "no-one will believe you" (MW) and "we would both get into trouble" (JJ). 8. Assaults upon MW and JF occurred in public or semi-public locations such as a shower block, a toilet on a train station, the change room of a gym, or on a bus outside a factory.
2. Her Honour recognised the fundamental requirement for admissibility, namely relevance (s 56 of the Evidence Act). She then turned to the statutory provisions relating to tendency evidence (ss 97 and 101). She noted that the probative value of the evidence had to be assessed by reference to the facts in issue in the proceedings and the importance the evidence may have in establishing those facts. It was noted that in this case the facts in issue were whether the activity alleged by the complainants occurred and whether it was the applicant who was the perpetrator (her Honour acknowledged the "identification issue" to which she would return).
3. Her Honour referred to authorities in this Court concerned with the meaning and assessment of "significant probative value" (s 97(1)(b)) and the weighing of any prejudicial effect (s 101(2)): R v Cittadini [2008] NSWCCA 256; 189 A Crim R 492; DAO v R [2011] NSWCCA 63; 81 NSWLR 568; R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228; R v PWD [2010] NSWCCA 209; 205 A Crim R 75; DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758; R v XY [2013] NSWCCA 121; R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308; R v Ford [2009] NSWCCA 306; 201 A Crim R 451; and BJS v R [2013] NSWCCA 123; 231 A Crim R 537.
4. At this point in the judgment her Honour commenced to refer in detail to the nature of the alleged conduct described by the complainants. However she briefly referred to whether there was any "reasonable possibility of concoction and/or contamination". This had been disavowed by counsel for the applicant, as I have previously noted, but her Honour's consideration of this issue included a conclusion she drew concerning the identification issue relating to the complainant JJ. Her Honour referred to the evidence that JJ was provided with the surname of the applicant by Michael Eccleston but she was not of the view that this had any bearing upon his selection of the applicant in photograph 14 as the man who had sexually assaulted him.
5. Her Honour then provided a summary of the evidence. First she referred to the evidence about the school and to the history of the investigation. One of the documents the police acquired during their investigation was a list of brothers by full name and (mostly but not always with) a "religious name" (a single male name, not the same as their own) who had been appointed to the school. Her Honour referred to those who were there in the period 1983 to 1988. Another document acquired by police was a list for each year of brothers appointed to the school. On its face, her Honour said, the only brother with the applicant's first name was the applicant himself. Her Honour then provided a summary of the evidence of each of the complainants.
6. Huggett DCJ then referred to the submissions made by the applicant's counsel. She first noted his concession as to "significant probative value". Her Honour was satisfied of this for herself. The concession did not extend to a witness identified as "GH" and her Honour agreed with counsel's submission that such evidence was "too general and vague" to have sufficient probative value. Her Honour concluded that the evidence of GH would not be allowed on matters the Crown had relied upon in support of tendency reasoning. He would, however, be permitted to give evidence on general matters.
7. It was at this point that her Honour turned to counsel's submissions as to the weighing exercise required by s 101. She correctly identified that it was contended that there was a risk of prejudice on two bases: the jury being unable to avoid circular reasoning and using the tendency evidence to impermissibly "strap up or bolster … weak identification cases, each with their own credibility problems".
8. In relation to the "circular reasoning" argument, her Honour considered that it disregarded the directions a jury must be given regarding the separate steps they must follow before tendency reasoning can be employed. That is, the jury must first conclude beyond reasonable doubt that at least one of the charged offences occurred, starting with whichever charge the jury choose to commence with. The jury would look at all of the evidence relating to that charge, including for example, evidence relevant to the complainant's credibility and any complaint evidence. Her Honour identified that the second step was for the jury to ask itself whether it could then be satisfied beyond reasonable doubt that the applicant had the tendency the Crown alleged. If the answer to that question was in the negative, any suggestion that the applicant had such a tendency would have to be put aside.
9. Her Honour concluded that the submission that circular reasoning would be used by the jury was "untenable". She observed that in Doyle v R; R v Doyle [2014] NSWCCA 4 such an argument (or at least a very similar one) had been put and rejected.
10. As to the argument contending that there would be a bolstering of individually weak identification cases, her Honour considered that identification was involved "in very general terms". But it was not identification of a stranger but "more properly described as recognition".
11. Her Honour rejected the submission that JJ's identification of the applicant in photograph 14 was influenced by him having been told the full name of the applicant by Michael Eccleston. She reiterated her earlier observation that this had no bearing upon JJ's identification of the applicant, noting as well the evidence of JJ that there was only one man to his knowledge referred to by the applicant's first name with the title "Brother". Reference was made to other evidence supporting the identification: others had said that the person in photograph 14 was the applicant; there was evidence placing the applicant at the school at the relevant time; the applicant appeared on the student file for JJ; and according to the school records, no other brother had the applicant's first name with the title "Brother".
12. Her Honour then referred to the submission that the identification of MW and JF was tainted by the "displacement effect" in that they had independently happened upon the applicant after they had left the school. She considered that the fact that these complainants came across him some time later when he was older and "presumably a little greyer or of a different build" did not affect their recognition of the features of the male selected in photograph 14.
13. As to the submissions concerned with the credibility and reliability of the complainants, her Honour observed that this was a matter for the jury, subject to the directions that would be given, including a Markuleski direction: R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82.
14. Her Honour concluded her reasoning as follows: "I return, finally, to the determinations I must make before tendency reasoning can be admissible. The Crown, in arguing that the evidence has significant probative value, does not rely on a case of striking similarities but rather on a pattern or system of behaviour or modus operandi in the accused's behaviour. As I have already referred, for the evidence to be admissible the authorities have made clear there do not have to be striking similarities or even closely similar behaviour under s 97. I am of the view that the evidence of the four complainants does establish a pattern of conduct by the accused and that the existence of such a pattern could rationally affect the assessment of the probability of the facts in issue that I have identified earlier. I am of the view that there are a number of features of the alleged conduct and of the events surrounding the conduct described by each complainant which do involve closely similar conduct on the part of the accused. The decision to admit the evidence which evinces a tendency to act in a particular way and with a particular state of mind is not dependent on a finding of striking similarities. The fact the alleged sexual acts are not identical does not deplete the evidence of its probative value. [To] determine the matter by isolating only identical acts would focus too narrowly upon a tendency to engage in a sexual act in a particular fashion. In my view, whilst there are differences in the complainants' accounts as to the nature of the conduct undertaken and the circumstances in which that conduct occurred the evidence is capable of establishing a sexual interest by the accused in boys who were students at [the school]. In my view, the probative value of the evidence is significant. The issue in the trial that the tendency evidence will bear upon is whether the acts alleged occurred and whether the accused was the person who conducted himself as alleged in respect of each count. I am required to assess the capacity of the evidence to effect the assessment of the probability of the existence of these facts in issue. In my view, the proposed evidence is capable of demonstrating that the accused was a person who was sexually attracted to boys who were students at the school and that he acted upon that attraction at various times in the particular way the Crown relies upon in support of each individual count. The evidence is capable of revealing a tendency to act in a particular way and with a particular state of mind as asserted by the Crown in its tendency notice. I have referred to the proposed evidence of each complainant in some detail and, in my view, by doing so the pattern of behaviour relied upon by the Crown is manifest and requires little further to be said. I am of the view that the proposed evidence of the complainants establishes that the accused had a tendency to act in the following particular ways: 1. that the accused took advantage of his position of authority at the school to facilitate access to male children in their early teenage years so he could engage in sexual activities with them; 2. that the accused engaged in sexual conduct with male students by a. touching them in an inappropriate sexual way, b. exposing his naked penis to them and having them come into contact with his penis, and c. by carrying out sexual acts upon them. In relation to s 101, does the probative value of the evidence substantially outweigh any prejudicial effect it may have on the accused? [O]f its nature, tendency evidence will have a prejudicial effect. In considering prejudicial effect, there is, in relation to DJ, a matter that does cause me considerable concern regarding prejudice. As I have raised with the parties, in my view, the admission of the evidence of DJ as tendency evidence in the trials of MW, JJ and JF would be to introduce evidence of alleged brutality and violence towards DJ in a trial of the other three complainants of a sort that forms no part of the allegations each of those three complainants make and, simply put, would be incapable of being cured by directions. In saying that, I am cognisant of the fact that similarity in events and circumstances is not a pre-condition for the admissibility of tendency evidence. For that reason, it will be my order that there be a separate trial of Count 5, but in that trial I would allow tendency evidence from either or all of MW, JJ and JF, because the prejudice I have identified does not arise in those circumstances. In relation to MW, JJ and JF, I am of the opinion that, there being no real risk of contamination or concoction, the tendency reasoning sought to be relied upon does have significant probative value, which probative value substantially outweighs any prejudicial effect it may have upon the jury. I am not of the view there is a real risk that a jury properly instructed would be unable to properly consider the basis upon which the tendency evidence would be admitted. The jury must be directed that they can only take tendency reasoning into account if they are satisfied the particular tendency or tendencies relied upon by the Crown have been proved beyond reasonable doubt. Having considered the operation of s 101, I am not of the view that the tendency evidence should be excluded, as the tendency evidence of MW, JJ and JF upon which the Crown relies is admissible in relation to each count on the indictment. It is not appropriate to order that Counts 1 to 4A and 6 to 17 be separated, and I order that the trials of those counts be heard together. As I have stated, I order a separate trial for Count 5 but rule that tendency evidence of MW, JJ, and JF is admissible in relation to the trial of Count 5." (Emphasis added.)

Ground 1 - Her Honour erred in law

1. Written submissions for the applicant make clear that this ground involves a contention that her Honour erred in her application of s 101(2) of the Evidence Act.
2. The written submissions discussed at some length an asserted difference between "prejudicial effect" in s 101(2) and "unfair prejudice" in s 137. Although her Honour did not use the term "unfair prejudice", nor refer to s 137, it was submitted that a passage of her ex tempore judgment indicated that she "misdirected herself into the application of a different balancing exercise than that required by s 101(2)" in that she "did not consider 'any prejudicial effect' the cross-admissibility of evidence of offences in the trial of other offences 'may have on the defendant', but rather the 'danger of unfair prejudice' to the defendant".
3. The passage of the judgment upon which these submissions were based is only a part of her Honour's reference to principles relating to the application of s 101(2). It is necessary to quote the complete passage was: "Section 101 provides important restrictions on the admission of tendency evidence adduced by the Crown in a criminal trial. It, in combination with section 97, means that tendency evidence, even if relevant, is inadmissible unless the court considers that the evidence, either by itself or having regard to other evidence to be adduced, has significant probative value. And the probative value must substantially outweigh its prejudicial effect on the accused, PWD at 58. The focus by the section 101 stage is whether the probative value of the evidence, having already found it to be significant, substantially outweighs any prejudicial effect on upon the accused. In DAO Simpson J noted, "the prejudicial effect is a reference to evidence being used against an accused for a purpose other than that for which it was admitted", paragraph [149]. The test under section 101 involves a consideration of the risk of an unfair trial. The probative strength of the evidence must be compared with the degree of risk of an unfair trial if the evidence is admitted. Section 101 mandates the exclusion of tendency evidence, even if relevant, if there [is] a danger of improper use of the evidence. It is the risk that the evidence of tendency 'will be taken by a jury to prove too much, that the law seeks to guard against' (HML v R (2008) 235 CLR 334 at paragraph 12.) A proper carrying out of the balancing task in section 101 requires an identification of the type or types of prejudicial effect the evidence may give rise to and why it is that the judge has reached the view that the probative value of the evidence substantially outweighs, or does not substantially outweigh as the case may be, any such prejudicial effect" (R v Ford). 'The exercise involves an assessment and prediction of the use the jury may make of the evidence against the real risk, it may make some improper use of it. In carrying out this balancing task, a judge is required to consider the ameliorating effect of any directions that may be necessary or available to reduce the prejudicial effect. That is, to consider whether an appropriate direction can be given to the jury to ensure that the evidence is not misused in any way' R v Ngatikaura [2006] NSWCCA 161 at paragraph 32." (Emphasis added)
4. The applicant was critical of her Honour having relied upon paragraph 32 of the judgment of Beazley JA (as her Honour then was) in R v Ngatikaura as her Honour was there discussing the application of s 137 of the Evidence Act, not s 101(2). I understand the submission to be that this supported the contention that her Honour had regard to the wrong statutory provision and therefore applied the wrong test.
5. The final indented paragraph of the passage quoted above has the appearance of being a quotation from the judgment of Beazley JA in R v Ngatikaura. It is not. (I assume some transcription error.) The first sentence draws from R v Fletcher at [48]; the second sentence draws from DAO v R at [172]; and only the third sentence is derived from R v Ngatikaura at [32].
6. In any event, what Beazley JA did say at [32] is of equal application to s 101(2) and s 137; namely that the assessment of potential prejudice should include consideration of directions that may be given to the jury: "[32] A court is required, as part of the assessment of the question whether the probative value of the evidence is outweighed by any unfair prejudice, to consider whether an appropriate direction can be given to the jury to ensure that the evidence is not misused in any way: see R v Cook at [37]. His Honour did not give any express consideration to that question. The possibility that a direction may be given to the jury is integral to the assessment a trial judge must otherwise make in determining whether the probative value of the evidence is outweighed by the unfair prejudice. Failure to give consideration to that question means that his Honour's consideration whether s 137 should (assuming that was his Honour's ruling) be applied so as to exclude the evidence of the prior offences, miscarried."
7. It is uncontroversial that it is appropriate in the application of s 101(2) to the admissibility/exclusion evaluative task posed by s 97 to take into account directions which may be given to the jury. The other cases to which her Honour was referring (R v Fletcher and DAO v R which were both concerned with s 101(2)) make that clear.
8. I am unable to accept that Huggett DCJ erred by considering a "danger of unfair prejudice". And it is not correct to say that she "did not consider 'any prejudicial effect'". This is made clear by the emphasised words in the second and fourth paragraphs of the extract from the judgment above (at [68]). And later in her judgment when Her Honour expressed her conclusions she again applied the terms of s 101(2) (see emphasised words in the 9th and 11th paragraph of the extract above at [65]).
9. But even if there was the error for which the applicant contended, I cannot see how a consideration of "unfair prejudice" was any different from an assessment of "any prejudicial effect". There is a real question as to whether there is a difference between the two concepts: R v Ford at [55] (Campbell JA); Sokolowskyj v R [2014] NSWCCA 55 at [47] (Hoeben CJ at CL).
10. The applicant supported the elucidation of the meaning of "prejudicial effect" by Simpson J in DAO v R at [150]: "'Prejudicial effect' is a reference to evidence being used (against an accused person) for a purpose other than that for which it is admitted."
11. Huggett DCJ actually quoted this in the sentence that immediately preceded the passage extracted in the applicant's written submissions.
12. It was also submitted that "her Honour erred in law" in her treatment of the applicant's "circular reasoning" contention. Submissions were made on this topic in the context of Ground 2 where they are relevant to an assessment of potential prejudicial effect being weighed with probative value. If there be any error it is not one of "law" and so this topic adds nothing to the present ground.
13. I would reject this ground.

Ground 2 - The probative value of the tendency evidence in question does not substantially outweigh the prejudicial effect it may have on the applicant

1. To succeed on this ground the applicant must demonstrate error in the sense identified in House v The King [1936] HCA 40; 55 CLR 499: DAO v R.
2. The "circular reasoning" argument principally focussed upon her Honour's rejection of it on the basis that that submission ignored the directions that a jury would receive as to the correct approach to tendency evidence (see above at [59]).
3. The submissions for the applicant in this Court commenced with reference to the judgment of Hoeben CJ at CL in Sokolowskyj v R at [48]-[56] and the proposition that jury directions cannot always be effective in overcoming prejudice. So much may be readily accepted for the reasons his Honour gave. But the converse - jury directions can never be effective in overcoming prejudice - does not follow. Hoeben CJ at CL was not attempting to lay down any universally applicable principle but was dealing with the facts of the case at hand.
4. The applicant was critical of her Honour's reference to Doyle v R; R v Doyle in the context of rejecting the "circular reasoning" argument. It was submitted that the factual matrix in that case was different to that in the present case where the evidence said by the Crown to establish tendency is confined to the charged offences.
5. I have earlier summarised the passages of her Honour's judgment dealing with this issue (see above at [59]-[60]). In my view it was open to her to consider that a jury would be well able to apply the directions that would be given about the sequential process of reasoning they must apply in relation to the tendency issue. It is a process that is readily capable of being understood and applied. It may be contrasted with the quite different types of concerns discussed by Hoeben CJ at CL in Sokolowskyj v R; concerns about evidence being of such a nature that it might divert the jury from a proper consideration of the evidence.
6. Counsel submitted that it was "not necessarily safe to just assume that things can be cured by jury directions" and that "her Honour doesn't really seem to have dealt with that in her judgment". I am unable to accept that her Honour did not critically consider whether there was prejudice which could not be overcome by jury directions. Her disallowance of the Crown's reliance upon the evidence of DJ in the trial concerning MW, JJ and JF indicates quite the contrary.
7. The applicant's submissions place some store in the fact that the tendency is said to arise only from charged acts. That is not a reason that compels exclusion on the basis of "circular reasoning".
8. The second point sought to be made by the applicant under this ground was concerned with "the possible prejudicial effect of use of the tendency evidence by the jury in considering the strength of each complainant's identification of the applicant as his assailant". This was put on the basis that the individual complainant's identification of the applicant was "objectively fragile" for various reasons.
9. One of the asserted weaknesses was said to be that it was "identification by name" and reference was made to matters such as that the investigator, Michael Eccleston, had given the full name of the applicant to JJ some many years later. Reference was also made to the "displacement effect" arising from MW and JF having met the applicant some time after having left the school. The photographic identification (described by her Honour as more a matter of recognition) was said to be of no value when a complainant had previously named the applicant as the assailant.
10. Counsel asserted that there would be prejudice arising from the jury assessing the correctness of a complainant naming the applicant as the assailant by reference to the evidence of the other complainants. If the jury followed the trial judge's directions and first determined that they were satisfied beyond reasonable doubt of the allegations made by an individual complainant, it was said to be then impossible that they would not then use that finding as supporting the correctness of the identification of the applicant by the other complainants. This, it was submitted, would amount to the use of tendency evidence "for a purpose other than that for which it was admitted" (DAO v R at [150]).
11. I set out earlier in considerable detail the reasoning of Huggett DCJ in rejecting the applicant's contention that the probative value of the tendency evidence concerning MW, JJ and JF substantially outweighed any prejudicial effect. I did so because it is apparent that her Honour approached her task with considerable care; she attended to the essence of each of the arguments advanced by the applicant; and she arrived at a result which was guided by a correct appreciation of the statutory provisions and the relevant principles as to their application.
12. I am not persuaded that there is any error in a House v The King sense in any of these matters relied upon by the applicant. They amount to the remaking of arguments that were made in the District Court with the apparent hope that this Court would arrive at a different conclusion.
13. I would reject this ground.

Ground 3 - A joint trial as ordered by her Honour would not be a fair trial according to law

1. No discrete submissions were made in support of this ground. It depended upon success of the earlier grounds. It follows that this ground fails as well.

Orders

1. I propose the following orders: 1. Extend time for filing Notice of Application for Leave to Appeal until 29 September 2014. 2. Leave to appeal refused.
2. DAVIES J: I agree with R A Hulme J.

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