DAO v R

The Issue of Leave 12The decision to admit tendency evidence is clearly of considerable significance for the trial. Nevertheless, it is an interlocutory ruling. The decision to reject the application for separate trials can be reversed by the trial judge. (See R v Wright (1990) 90 Cr App R 325 at 338-340; Saunders at 353-354.) 13Notwithstanding the potential power of the evidence of each of the other two complainants in the third case, the impact on the fairness of the trial will be affected by the course of the trial. His Honour's ruling was necessarily made on the basis of an expectation as to what the evidence of each complainant will be. By reason of their evidence in chief, and perhaps particularly by reason of their cross-examination, the force and nature of the complainants' evidence may differ from that which can be anticipated at the present stage of proceedings. The course of the trial may lead to the decision being reopened. 14Furthermore, the significance and weight to be attached to the evidence can be affected by the nature and strength of directions given by the trial judge to the jury. These are matters capable of further assessment on appeal if the applicant is convicted in relation to one or more of the complainants. 15I note that s 5F(6) specifies that, if leave is refused, the refusal does not preclude an appeal following conviction on the matter to which the refused application for leave related. The Court has not been addressed on the issue as to the position where leave is granted. However, s 5F(6) should be regarded as having been introduced as a matter of caution. If leave is granted this Court is, nevertheless, hearing the appeal at an interlocutory stage. A decision under s 5F does not preclude further consideration of the issue under ss 5(1) and 6(1) of the Act on appeal following a conviction, if any. 16The fact that what is involved is, in substance, an attempt to appeal from a preliminary ruling on evidence is a strong consideration against the grant of leave. There are two countervailing considerations. 17First, the decision is a pre-trial ruling of potentially critical significance, in that it determines a fundamental aspect of the structure of the trial. This is not a case in which this Court is asked to micromanage the conduct of a trial, nor does it involve intervention in the course of a trial, nor is it an appeal which would lead to delay. Furthermore, if the ruling is in error, it is of a character which, assuming a conviction, would almost inevitably lead to a successful appeal and, probably, a new trial. 18The second matter in favour of a grant of leave arises from the fact that there is a conflict of authority on the appropriate test to apply to an appeal from a ruling on the admissibility of tendency evidence pursuant to the combined effect of ss 97 and 101(2) of the Evidence Act . I will set out the extent of divergence in this respect in the next section of the judgment. It is substantial. 19It is the combined force of these two considerations that lead me to agree with Simpson J that leave should be granted. Nevertheless, as noted above at [5], the issues that arise in this case which would usually be determinative at the leave stage, also impinge upon this Court's discretion to make an order under s 5F(5).

Conflicting Authority 20Because of the divergence of views that have been expressed on the issue, the Court has sat a bench of five. Two judges, myself and the President of the Court of Appeal, were added to the original bench, with the concurrence of the parties, after oral submissions. The parties agreed that the additional judges could determine the matter on the papers. 21In Fletcher , Simpson J, with whom McClellan CJ at CL agreed, concluded that the decision made by a trial judge under both ss 97(1) and 101(2) of the Evidence Act must be reviewed in accordance with the principles in House v R (1936) 55 CLR 499 (see Fletcher at [36] and [48]). A similar view was expressed with respect to s 101(2) in R v Milton [2004] NSWCCA 195 at [33]. In Zhang , Simpson J, with whom Buddin J agreed, affirmed at [104] that the House v R test was applicable to an appeal from a decision on admissibility under the cognate provision for coincidence evidence in s 98 of the Evidence Act. 22To the same effect, in a civil case, where the focus was necessarily on s 97(1), the Full Federal Court expressed a clear view that this approach was correct, although the point was conceded by the parties in that case. (See Jacara v Perpetual Trustees [2000] FCA 1886; (2000) 106 FCR 51 at [74]-[75].) 23On the other hand, in a dissenting judgment in Zhang , Basten JA came to the conclusion that the relevant approach was not that in House v R, but that in Warren v Coombes (1979) 142 CLR 531. (See Zhang at [45].) 24Furthermore, in a detailed analysis of the relevant authorities by Campbell JA in R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286, his Honour concluded that the applicable test under s 97(1) was the approach in Warren v Coombes (see at [101]-[107]). However, Campbell JA concluded, on the basis of authority, that the relevant standard under s 101(2) was that in House v R. (See Ford at [108]-[117].) Howie and Rothman JJ did not find it necessary to decide the issue, the former indicating doubts about Campbell JA's views with respect to s 97 ([145]-[146], [149], [157]-[158]). 25The divergent approaches in this Court to these important issues were set out, but not resolved, in R v GAC [2007] NSWCCA 315; (2007) 178 A Crim R 408 at [70]-[78]. 26The approach of Basten JA has attracted support interstate, albeit in cases where it was not necessary to decide the point. In Tasmania, Underwood CJ reviewed the NSW cases and expressed his support for the dissenting approach of Basten JA. (See L v Tasmania [2006] TASSC 59; (2006) 15 Tas R 381 at [51]-[56], see also the analysis of Crawford J at [79]-[85].) The same view has been expressed in the Court of Appeal of the Supreme Court of Victoria. (See PNJ v Director of Public Prosecutions [2010] VSCA 88 at [15]-[16]; JLS v R [2010] VSCA 209 at [34]-[35].) Although the issue did not fall for decision, the reasoning in these cases is generally in support of the views of Basten JA in Zhang. 27The focus of the disagreement has been on the appellate treatment of a trial judge's application of the test in s 97(1)(b). Paragraph 97(1)(b) begins with the words: "the court thinks that ...". In the absence of these words, it would be clear that what was involved was an objective standard as to whether or not the evidence will "have significant probative value". Those words introduce an element of subjectivity. 28It is, in my opinion, strongly arguable that this test is analogous to the various statutory formulations which require a decision-maker, including a court, to be "satisfied" of a certain matter. (Cf Ford at [107].) As was stated in an administrative law context, the use of terminology of whether a decision-maker is "satisfied" confers "a very wide discretion". ( Buck v Bavone (1976) 135 CLR 110 at 119.) 29In other contexts, including contexts involving decisions by a court, the use of the terminology of 'satisfaction' has led to the conclusion that the degree of restraint which an appellate court should manifest is of the same order as that applicable to a discretion in the strict sense of that word. (See Norbis v Norbis (1986) 161 CLR 513 esp at 517-518, 540; Singer v Berghouse (No 2) (1994) 181 CLR 201 esp at 210-212; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 esp at [19], [27], [32]; Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 at [27]; Director of Public Prosecutions v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93 at [3]-[4] and [64]-[70]; Vines v Australian Securities and Investments Commission [2007] NSWCA 126; (2007) 63 ACSR 505 at [8]-[9].) The word "consider" is equivalent to "satisfied" in this respect. (See NSW Crime Commission v Vu [2009] NSWCA 349 at [8]-[9].) 30The line of authority flowing from Singer v Berghouse is instructive in this respect. That decision resolved a relevantly analogous divergence of views with respect to the appropriate principles applicable on an appeal from a judicial determination that a testator had not made adequate provision for a member of their family. The joint judgment clearly distinguished what it referred to as the "jurisdictional question" from a second stage of the exercise of the relevant statutory power. The second stage involved a discretion to make additional provision for the family member. The latter was clearly identified as the exercise of a discretion in the strict sense of the term (at 211). 31The jurisdictional question was to the effect that the Court could not make an order: " ... unless it is satisfied that ... the provision (if any) made in favour of the eligible person ... is ... inadequate for the proper maintenance, education and advancement in life of the eligible person." ( Family Provision Act 1982, s 9) 32The divergence of views in pre-existing case law was with respect to whether or not the House v R principle was applicable to this "jurisdictional question". The Court held that it was applicable, even though, as the joint judgment put it at 211: "Strictly speaking ... the jurisdictional question, though it involves the making of value judgments, is a question of objective fact to be determined by the judge at the date of hearing." 33Nevertheless, the Court held that the House v R test applied. The Singer v Berghouse approach has frequently been applied in cognate contexts. The conclusion turns, in my opinion, on the use of the word "satisfied" in the formulation of the "jurisdictional question". 34This line of authority suggests that a decision under s 97(1) is reviewable only on House v R grounds. However, the contrary view has been put forward with cogent reasoning. 35As I have noted, there is less divergence of authority on the application of s 101(2). This is in large measure based on the application of the case law on s 137 of the Evidence Act. Again, however, there is some conflict in judicial approach. 36There is a close analogy between s 101(2), with its formulation that tendency evidence "cannot be used ... unless", and the relevant part of s 137 of the Evidence Act , with its terminology "the court must refuse to admit evidence". Furthermore, both provisions require the court to weigh in the balance "probative value" and "prejudice". For present purposes, there does not appear to me to be a distinction between "prejudicial effect" and "unfair prejudice". 37The origins of contemporary jurisprudence in this Court on s 137 is found in R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326. It was on this judgment that Campbell JA relied for concluding that s 101(2) invoked the House v R test. ( Ford at [108]-[110].) 38In his judgment in Blick, Sheller JA made it clear that s 137 does not involve the exercise of a "discretion". His Honour held that the evidence must be rejected if, as a result of the balancing exercise, the Court comes to the conclusion that the probative value of the evidence is outweighed by the danger of unfair prejudice. As his Honour put it at [20]: "there is no residual discretion". Nevertheless, his Honour also said that the "judgment", which is the end product of this balancing process "in terms of appellate review is analogous to the exercise of a judicial discretion" (at [19]). 39It is pertinent to note that in Blick this last reference occurs in a sentence which commences: "It is probably correct to say ...". When dealing with the relevant ground of appeal at 333-335, Sheller JA did not invoke any part of the House v R formulation. His Honour's reasoning was directed to a reassessment of the balance between "probative value" and "unfair prejudice". However, Sheller JA concluded that "there could be only one conclusion" on where the balance lay (at [29]). 40In subsequent judgments this Court has sometimes emphasised the proposition in Blick that what is involved in s 137 is a judgment rather than a discretion. (See, eg, R v Marshall [2000] NSWCCA 210; (2000) 113 A Crim R 190 at [21]; R v GK [2001] NSWCCA 413; (2001) 53 NSWLR 317; R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 at [95]; R v Sood [2007] NSWCCA 214 at [23]; R v PJG [2005] NSWCCA 306 at [139]; R v Gordon [2004] NSWCCA 45 at [39].) 41As a result of this emphasis, on one occasion this Court has determined that the principles of House v R are not applicable to an appeal from a decision under s 137. (See R v Rima [2003] NSWCCA 405; (2003) 145 A Crim R 27 at [37]-[39]. See also R v Cook [2004] NSWCCA 52 at [38].) 42However, on other occasions this Court emphasised that part of the judgment of Sheller JA in Blick which referred to the analogy between the particular judgment for which s 137 calls and a discretion, noting his Honour's indication that the principles in House v R are applicable to an appeal from a decision under s 137. (See Vickers v R [2006] NSWCCA 60; [2006] 160 A Crim R 195 at [76]; Smale v R [2007] NSWCCA 328 at [32]; R v SRJC [2007] NSWCCA 142 at [33]-[34]; Can v R [2007] NSWCCA 176 at [45]; R v Arvidson [2008] NSWCCA 135; (2008) 185 A Crim R 428 at [27].) 43As indicated above at [26], the Victorian Court of Appeal has indicated a preference for the application of the Warren v Coombes test to decisions on admissibility under s 97. However, with respect to s 137, and the similarly worded s 138, both of which are relevantly analogous to s 101(2), that Court has indicated a preference for the House v R approach. ( Director of Public Prosecutions v MD [2010] VSCA 233 at [27]-[31]; MA v R [2011] VSCA 13 at [7]-[13]; and see THD v R [2010] VSCA 115; (2010) 200 A Crim R 106 at [27]-[32].) 44In the conflicting case law set out above, no distinction has been expressly drawn between an appeal under s 5F from an interlocutory judgment and an appeal under ss 5(1) and s 6(1) of the Act from a conviction. The conflict does extend to s 5F cases. (Both Rima and Arvidson were such.) Blick should be understood as authority on the "wrong decision on a question of law" limb of s 6(1). It was unnecessary for the Court to consider the "miscarriage of justice" limb. 45In my opinion, there is a substantial difference between a s 5F appeal and an appeal from conviction in relevant respects. It will not be necessary to determine the position in an appeal after conviction. The Court has before it a s 5F appeal.

Judgment and Discretion 46It is often useful to distinguish between a judgment and a discretion. (See in the context of administrative law, F Bennion "Distinguishing Judgment and Discretion" [2000] Public Law 368; F Bennion "Judgment and Discretion Revisited: Pedantry or Substance" [2005] Public Law 707.) However, there is no simple duality applicable to every legal context. Whilst there is utility in such characterisation, it is important to bear in mind that the relevant legal incidents are properly regarded as constituting a spectrum, rather than a duality. 47The protean word "discretion" is often deployed loosely in legal discourse. It is sometimes used to extend beyond decisions in which a choice must be made between alternatives, so as to encompass any decision involving a value judgment on which reasonable minds may differ. (See, eg, Coal and Allied Operations at [19]-[21]; Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124 at [37]-[40]; Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 at [34]-[40]; El Mawas at [64]-[70].) 48Subject to the particular provisions creating a statutory right of appeal, there is a difference in principle between the application of a legal standard for which there ought to be a single correct answer, on the one hand, and the application of a standard or the exercise of a power for which there is no single correct answer, on the other hand. The fact that a standard of the former character involves making a judgment about which reasonable minds can differ does not make the decision a discretionary one, in the sense that a decision of the latter character is usually described. 49There is a clearly established category of legal decision which is treated as a discretion in the strict sense of the term. The principle in House v R is applicable to any such decision. However, there is authority which applies analogous, indeed often the same, form of restraint to the exercise of an appellate jurisdiction even in the case of decisions which are not discretionary in the strict sense. (See, eg, Singer v Berghouse .) 50I refer to this analogous authority in order to indicate that what is involved in the issue before the Court is not capable of being characterised as a simple duality. In all cases the particular power and, perhaps even more significantly, the particular appellate jurisdiction being exercised, must be analysed. The resulting degree of appellate restraint involves a spectrum rather than an on/off switch. 51Labelling a particular statutory provision as involving either a "judgment" or a "discretion" carries with it the danger of applying the label, rather than conducting an analysis of the applicable statutory regime. As the High Court has emphasised on numerous occasions, in matters of this character it is always important to commence with the statute and not to substitute other words. (See, eg, Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 at [7]-[12]; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [20]-[22], [57]-[58]; Coal and Allied Operations at [5]-[19]; Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2001] HCA 49; (2001) 207 CLR 72 at [9]-[12], [46]-[51]; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [21]-[23]; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [9]-[11], [31]-[40]; CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 at [13]-[19]; AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 at [52]-[53]; Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 at [16]; Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 at [123]-[126].) 52As the High Court said in Dwyer v Calco Timber, immediately after referring to the House v R test (at [40]): "Rather different is the situation where statute creates a legal norm, in this litigation that of a "serious injury", and does so in terms which require for their operation in a given dispute the identification and evaluation of facts and assigns that fact-finding in the first instance to a judge sitting alone. The occasion for appropriate appellate intervention will depend upon the nature and scope of the particular statutory appeal for which the legislature provides. That inquiry is not advanced by describing the overall decision-making process of the primary judge as 'discretionary'."

The Appellate Jurisdiction 53Accordingly, the analysis must commence with the fact that this Court has before it an appeal under s 5F from an interlocutory judgment or order. The Court is not required to determine the position with respect to an appeal after conviction, to which ss 5(1) and 6(1) of the Act would apply. Characterising a judgment under the combined effect of ss 97 and 101(2) for one purpose is not necessarily conclusive with respect to the other. 54In the case of an appeal after conviction under s 5(1), this Court will focus on the terminology of "wrong decision on a question of law" and "miscarriage of justice", as s 6(1) provides. In the case of an appeal from an interlocutory judgment or order under s 5F, there is no express statutory standard or criterion. However, that does not mean that the jurisdiction is at large. 55When enacting s 5F, the Parliament adopted terminology to which well established principles applied with respect to the degree of restraint that an appellate court should manifest. Relevantly, a high degree of restraint has always been required with regard to an interlocutory decision on a matter of practice and procedure, as distinct from a decision determinative of legal rights. The basal authorities are Re Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318 at 322 and Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177. The position is the same in criminal procedure. (See, eg, Rogerson v R (1990) 45 A Crim R 253 at 253-254; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 599; R v Chami [2002] NSWCCA 136; (2002) 128 A Crim R 428 at [13].) 56A decision to reject the application for separate trials is a decision on a matter of procedure. However, as I have noted above, in substance, the present case was a decision on the admissibility of evidence. Such a ruling, as I have also noted above, has been held not to constitute an interlocutory judgment or order within s 5F at all. For purposes of appellate restraint in a s 5F appeal, when made on a pre-trial basis, such a ruling is, at the least, the same as a ruling on a matter of procedure. 57The relevant case law under s 5F has focussed on the leave requirement. However, this case law has adopted similar principles to those developed over many years with respect to appeals from interlocutory decisions in civil cases. The principles developed in that context are also applicable to a proceeding in which leave is not required under s 5F or when leave is granted. 58In R v Matovski (1989) 15 NSWLR 720 at 723, Gleeson CJ said: "For my part it seems to me that the reasons for the learned judge disclose no error of principle, assuming the view of the facts which he took to be correct. It has not been suggested that the view which the learned trial judge took of the facts is not one that was possibly open to him, the submission is simply that his Honour got the facts wrong. I would not suggest that there may not be cases in which substantial factual error could form the basis of a successful application for leave to appeal under s 5F. I do not intend to suggest that the only cases in which this Court would give leave to appeal would be cases where the applicant can point to some error of law or mistake in principle concerning the way in which a discretion of the kind involved in an application such as that presently in question should be exercised. No doubt there may always be cases where the interests of justice would require the granting of leave to appeal even in the absence of some specific error of the kind to which reference has already been made ... The present case is not in my view one in which leave to appeal should be granted. I can see no error of law or discretionary principle in the reasons for judgment of the learned trial judge. He took a particular view of the facts after hearing detailed evidence and argument and it seems to be a view of the facts which was at least open to him. The case is not one in which in my view the interests of justice require intervention by this Court at this stage and I would propose that the application for leave to appeal be dismissed." 59This analysis is closely analogous to the House v R test. I include in that observation the last category in House v R, to the effect that a decision is "unreasonable or plainly unjust". The comparable terminology of Gleeson CJ in Matovski is "the interests of justice" which, in the context of his Honour's reasons, appears to me to be equivalent to the House v R test. (See also Alexandroaia v R (1995) 81 A Crim R 286 at 290.) 60Although Matovski focuses on the grant of leave, in my opinion, the reasoning applies to the second matter to which I have referred at [5] above, namely the decision to exercise the power to interfere with the interlocutory decision. On this basis, the relevant degree of appellate restraint is at the House v R end of the spectrum, rather than at the Warren v Coombes end. 61The position would be different in an appeal after conviction. As I have noted, that appellate jurisdiction encompasses an error of law and a miscarriage of justice. When applying such a standard, the degree of appellate restraint applicable to a reversible, interlocutory ruling does not apply. Specifically the terminology of "miscarriage of justice" is broader than the House v R terminology of "unreasonable or patent injustice". 62The distinction between an interlocutory appeal and an appeal against conviction has frequently been referred to in case law on judicial decisions to order separate trials. 63In Rex v Grondkowski [1946] 1 KB 369, Lord Goddard CJ said: "The law is, and always has been, that [separate trials] is a matter of discretion for the judge at the trial" (at 372). His Lordship approved a statement from Rex v Gibbins and Proctor (1918) 13 Cr App R 134 at 136, where Darling J had said: "The rule is, that it is a matter for the discretion of the judge at the trial whether two people jointly indicted should be tried together or separately. But the judge must exercise his discretion judicially. If he has done so this court will not interfere, but that is subject to this qualification. If it appeared to this court that a miscarriage of justice had resulted from the prisoners being tried together it would quash the conviction." 64This line of authority has been applied in this Court. (See, eg, R v Annakin (1989) 17 NSWLR 202 at 206; R v Batiste (1994) 35 NSWLR 437 at 444; R v Merritt and Roso (1985) 19 A Crim R 360 at 364; and, recently, in Samadi and Djait v R [2008] NSWCCA 330; (2008) 192 A Crim R 251 at [108].) 65The significance of the distinction between an interlocutory appeal and an appeal after conviction was emphasised in Guldur v R (1986) 8 NSWLR 12 (an appeal against conviction) where Street CJ, Maxwell and Campbell JJ agreeing, said (at 15): "A particular ground of appeal has been taken and argued ... that the learned trial judge erred by not directing separate trials of the appellant and two co-accused. An application to this effect was made to his Honour at the outset of the trial. Indeed, similar applications had been made at interlocutory stages of the bringing forward of the present trial. All were unsuccessful. It is, of course, always a difficult matter for a trial judge to be able at the outset of a trial to anticipate quite how the trial will unfold. He has a discretion in dealing with an application such as this and that discretion will not be lightly interfered with. At the same time, if it can be seen that the discretion, although properly exercised at the time, has in the way in which the trial unfolded brought about a situation where there is real concern regarding the fairness of the procedures of a joint trial, then at an appellate stage there is a power which is exercised in appropriate cases to rectify the position by quashing the conviction and ordering a new trial." 66To similar effect is the judgment of Hunt J, with whom Wood and Campbell JJ agreed, in Verma v R (1987) 30 A Crim R 441 at 446-447, where his Honour said (without reference to Guldur ): "It is, of course, for the accused in each case to demonstrate to the trial judge that there is a risk of impermissible prejudice by reason of a joint trial which cannot sufficiently be cured by a direction to the jury. The prospect that such prejudice may arise is essentially one for the trial judge to consider upon the material which the accused chooses to put before him (and that which the Crown may add to it), and in the light of the requirements of justice in the particular case. His exercise of discretion is one which well may be reviewed on appeal, but on the hearing of such an appeal this Court does, of course, have the benefit of the hindsight gained from knowing what later transpired at the trial; in the appropriate case it can and will take into account what did in fact happen at the trial. In some cases, that hindsight will reveal the existence of impermissible prejudice which could not, or at least was not, foreseen at the time when the application was made. In other cases, of which the present appears to me to be a good example, that hindsight will dispose of the complaint made in advance of the risk of prejudice by demonstrating that what might or might not have been foreseen simply did not occur. In that sense, the task of this Court is not the usual one of reviewing the exercise of a trial judge's discretion. But, whichever way this Court's task is described, I can see no basis in the present case for holding that his Honour's refusal to grant separate trials produced an injustice to the appellant at the joint trial itself." 67Also to similar effect is the observation of Mason P, with whom Sully and Sperling JJ agreed, in R v Douglas [2000] NSWCCA 275, where the President said: "[74] The discretion to order the separate trial of counts in an indictment ( Crimes Act 1900, s365: see now Criminal Procedure Act , 1986 s64) will not be lightly interfered with on appeal; and the appellate court will examine the impact of the decision upon the trial as it unfolded ( R v Guldur (1986) 8 NSWLR 12; R v Verma (1987) 30 A Crim R 441)." 68Finally, in Milton, Hidden J, with whom Tobias JA and Greg James J agreed, said: "[25] As far as the ground concerning the refusal to order separate trials is concerned, the real question on appeal is whether, in the event, it appears that the joint trial was unfair: R v Guldur (1986) 8 NSWLR 12, per Street CJ at 15; R v Verma (1987) 30 A Crim R 441, per Hunt J at 445. For present purposes, that requires an examination of the question raised by the second ground, that is, whether the evidence of the two complainants passed muster as tendency evidence." See also R v El-Hayek [2004] NSWCCA 25; (2004) 144 A Crim R 90 at [28]. 69The reasoning in these cases is explicitly directed to the actual decision which is the subject of this appeal, ie, a decision as to whether to order separate trials. In my view, the reasoning is equally applicable to the ruling which underpinned the conclusion in the present case, ie, the decision on admissibility, insofar as it distinguishes the degree of appellate restraint applicable at an interlocutory stage from the position in an appeal against conviction.

Conclusion 70As a matter of principle, and on the basis of the case law concerned with separate trials, an appeal from an interlocutory judgment on an application for separate trials, is, in my opinion, subject to the degree of appellate restraint identified in House v R. It is unnecessary to go further in this case. 71ALLSOP P : I have read the reasons in draft of the Chief Justice and Simpson J. Their Honours' detailed reasons enable me to express my reasons without detailed recitation of the background. I agree with the orders proposed by their Honours and I agree with the analysis of the primary judge's reasons in the judgment of Simpson J and her Honour's conclusions as to lack of error displayed in them. 72This is an application for leave to appeal under the Criminal Appeal Act 1912 (NSW), s 5F(3)(a) and the appeal thereunder should leave be granted, heard concurrently. The Chief Justice and I, with the consent of the parties, have been added to the members of the bench because of the serious division of views apparent within this Court, the Court of Appeal of New South Wales and other intermediate appellate courts of the Federation about the nature of appellate review of a decision under the Evidence Act 1995 (NSW), s 97 and similar provisions in other polities. The matter is of importance not only for the admissibility of evidence in the administration of the criminal law, but also the civil law, for those polities that have passed laws conformable with the Evidence Act . Ordinarily, one would need to say little more to justify a grant of leave to appeal in order that the bench of five judges could have the opportunity of clarifying law, at least insofar as it is administered in this State. 73Nevertheless, the nature and context of the leave application and the proper approach to applications under s 5F warrants some consideration in order to decide whether leave should be granted. The nature and context of the leave application has been dealt with by Simpson J in her Honour's reasons. I do not repeat them. 74This Court has expressed itself on a number of occasions about the extent of, and the proper approach to, applications under s 5F. Section 5F is not available to review a decision as to the admissibility of evidence, such not being "an interlocutory judgment or order": R v Powch (1988) 14 NSWLR 136; R v Edelsten (1989) 18 NSWLR 213; Steffan v R (1993) 30 NSWLR 633 at 636 and 639; R v Bozatsis (1997) 97 A Crim R 296 at 302 and 304; R v Glossop [2001] NSWCCA 165 at [15]-[19]; R v F [2002] NSWCCA 125; R v Lavender [2002] NSWCCA 511; 37 MVR 491 at [8]; Kocer v R [2006] NSWCCA 328 at [1], [10], [15] and [18]; EK v R [2009] NSWCCA 4; 75 NSWLR 302 at [11]-[12] and [19]; and Gedeon v R [2009] NSWCCA 278 at [15]. 75It is undoubted that in applications under s 5F substance, and not mere form, should prevail: Cheikho v R [2008] NSWCCA 191; 75 NSWLR 323 at 329 [25]. This has been the foundation of the Court's approach, for instance, to applications for leave to appeal from orders in respect of stay applications that are founded significantly, or wholly, on contested rulings on evidence. The general (though not necessarily invariable) approach in such cases is to refuse leave to appeal: Steffan at 640-641; R v Marchione [2002] NSWCCA 131; 128 A Crim R 574 at 577 [18] (per Bell J, with whom Heydon JA and Dowd J agreed); and Gedeon at [24]. 76That the substance of the complaint about the ruling on the separation of the trials was directed to how the primary judge approached his task on the Evidence Act , in particular s 97 (though necessarily taking into account s 101), cannot be doubted. The reasoning of his Honour in relation to the evidence before him (being statements embodying expected evidence of the makers of the statements) was determinative of his Honour's conclusion in refusing to order separate trials in the three relevant matters and thus dismissing the motion in that respect. This consideration does not, and cannot, however, transform the legal form of the application before the Court. By using the word "legal", I should not be understood to be retreating into formalism. The application for leave to appeal (and any related appeal) is (and are) in respect of, and against, orders of the District Court, not its reasons. In form and in substance, this is an application for leave to appeal and an appeal in respect of, and against, the District Court's refusal to make orders to separate certain trials consequent upon hearing the notice of motion brought by the accused for separate trials. It is the failure to make an order for separation in relation to counts 3 to 7 inclusive and 9 to 18 inclusive that must be examined. The order involved a matter of procedure. That brings with it the well-known rules of restraint in interference: In re the Will of Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; and Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 7; 148 CLR 170 at 177. The considerations of restraint to which Sir Frederick Jordan adverted in In re the Will of Gilbert and to which Gibbs CJ, Aickin J, Wilson J and Brennan J referred in Adam P Brown Male Fashions at 177 will generally be relevant in the decision whether to grant leave to appeal. At that point, and for that purpose, one can approach the relevant issue by requiring not only the demonstration of error of principle (with a sufficient degree of clarity) as well as the possibility or likelihood of substantial injustice. Leave can be refused even if an error of principle has been disclosed, because of the kinds of considerations referred to by Jordan CJ in In re the Will of Gilbert at 323 and by Gibbs CJ, Aickin J, Wilson J and Brennan J in Adam P Brown Male Fashions at 177. 77If, however, leave is granted, what is then before the Court is moulded by the relevant statutory provisions by reference to which the judicial task is formed: here, the Criminal Appeal Act , s 5F. The nature of the interlocutory order that is the subject of appellate review will assist in the formulation of the approach of the appeal court by reference to its powers under the provision providing for appeal. Here, the order made not to separate trials is still a procedural question involving a true discretion in the sense of a power involving a choice for or in respect of its exercise even though the condition for its exercise may have been established: F C Hutley "Appeals within the Judicial Hierarchy and the Effect of Judicial Doctrine on Such Appeals in Australia and England" (1976) 7 Sydney Law Review 317; R Pattenden " The Judge, Discretion, and the Criminal Trial " (Oxford, Clarendon Press, 1982) at pp 3-6; and see Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124 at 138-139 [37]-[40]. 78As what might be termed an undoubted discretion, the grounds of appellate review (once leave has been granted) are governed by House v The King [1936] HCA 40; 55 CLR 499 at 504-505. There must be error shown in exercising the discretion: acting on a wrong principle; allowing extraneous or irrelevant matters to guide or affect the decision-maker; mistaking the relevant facts; failing to take into account some material consideration; or, in circumstances where no specific error of such kind can be demonstrated, where the result is, upon the facts, unreasonable or plainly unjust such that it can be inferred that there has been some error or miscarriage in the exercise of the power. (It is unnecessary to explore the similarities in source and content of these principles of review of a "true" judicial discretion and judicial review of acts of executive power: see the comments in Dwyer v Calco Timbers at 138 [39].) 79At one level of analysis, here, what has occurred can be viewed as a refusal to split the trials in question with a body of reasons for such refusal. Those reasons also amount to a body of reasons that may be sufficient for a ruling on evidence (although no express ruling on evidence was made). If the matter is viewed in this way, there is an order in the nature of a ruling on practice and procedure accompanied by reasons which are reviewable by reference to House v The King principles. On this basis, one would look at the reasons of the primary judge (which in another context would suffice for his reasons for admissibility) and ascertain whether there has been any error of principle or any other error contemplated by House v The King . 80This way of approaching the matter does not require the venturing of an opinion on the proper standard of appellate review as to a ruling on evidence under s 97. The decision in question is discretionary; review of such is based on error of principle; and no such error of principle is shown in the reasons (which would be otherwise sufficient for the admission of certain tendency evidence). The reasons were directed to written statements, which were not tendered as exhibits in the trial; rather they contained a written record of evidence expected to be given by the makers of the statements. On the basis of considering that expected evidence to be given by the persons in question, the primary judge came to a view about the separation of the trials. If evidence is given in the trial in accordance with the record contained in the statements, it may be accepted for present purposes that the primary judge (or another judge) may well follow or adopt the reasons of the primary judge when the evidence comes to be given. That, however, does not change the nature of what is before the Court for review under s 5F. 81On this basis, at this point in the resolution of the controversy, the decision not to order separate trials based on the reasons directed to expected evidence is reviewable on the grounds of House v The King . For the reasons given by Simpson J, there was no error displayed in the making of that discretionary decision. 82If, contrary to this view, it is necessary to review an effective ruling on evidence under ss 97 and 101 as the central and determinative consideration leading to the orders, it is necessary to decide the correct standard of appellate review for this question. 83The appeal under s 5F has been held to be an appeal by way of rehearing for the reasons discussed by Basten JA (with whom Grove J and Howie J agreed) in Norvenska v Commonwealth Director of Public Prosecutions [2007] NSWCCA 158 at [11]-[13] and further discussed by Campbell JA in R v Ford [2009] NSWCCA 306 at [69]-[72]. A contrary view was expressed by Hunt CJ at CL in R v BWM (1997) 91 A Crim R 260 at 265. Neither the Chief Justice nor Hidden J agreed with that part of his Honour's reasons. Given the views that I have as to the proper standard of appellate review of the questions under s 97, a resolution of this important question is unnecessary, as it was for Gleeson CJ and Hidden J in BWM . For the purposes of analysis, I am prepared to assume the correctness of Norvenska . 84An appeal by way of rehearing must be undertaken by reference to the subject decision. The character of that underlying decision will affect how the appeal court approaches its task. For instance, if the decision below is a discretion, there is no doubt that the appeal court (undertaking an appeal by way of rehearing) must approach the matter by applying House v The King. This, as I would apprehend it, was the Chief Justice's point in BWM . 85Thus, on this hypothesis, this Court has to consider the correctness of the primary judge's approach to ss 97 and 101, by reference to the correct standard of appellate review for such questions. More particularly, on this hypothesis, one needs to ascertain whether, from the correct perspective of an appellate court, his Honour correctly concluded the question of admissibility. 86The reasons of the Chief Justice identify the conflict between the two lines of authority in respect of s 97: one epitomised by R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 and R v Zhang [2005] NSWCCA 437; 158 A Crim R 504 that the decision is reviewable on appeal only on the principles stated in House v The King (see also Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51 at [74]-[75]; AW v R [2009] NSWCCA 1 at [45]); the other epitomised by the judgment of Campbell JA in Ford (see also L v Tasmania [2006] TASSC 59; 15 Tas R 381 (per Underwood CJ at [55], Crawford J at [79]-[85] and Tennent J at [86]-[87]) and PNJ v DPP (Vic) [2010] VSCA 88 at [16]). 87The essence of the difference between the two lines of authority on s 97 (at the risk of oversimplification) is the extent to which the matter involved is one of degree and evaluation leaving room for legitimate differences of view (and thus akin to a type of discretion using that word in the sense discussed in Norbis v Norbis [1986] HCA 17; 161 CLR 513 at 518) or is one of logic and evaluation as to the meeting of a legal standard. 88The degree of intensity of review on appeal of any particular question depends upon a number of things - the terms of the statutory provision providing for appellate review, the nature of the question under review, the need to discern error, the respective advantages and disadvantages of the court below and the appeal court and, implicitly, a degree of legal policy (though the last matter is rarely explicated). I strongly agree with the Chief Justice that labels are apt to mislead in this context, most particularly the word "discretion" and the phrase " House v The King review" as an alternative to " Warren v Coombes review" as the exhaustive universe of alternatives (which they are not). 89The law undoubtedly provides for a variety of levels or degrees of scrutiny for appellate review of different questions. A discussion of a number in respect of which there is no doubt about the relevant test is helpful in illuminating the relevant factors to take into account. 90The apportionment between a plaintiff and a defendant of their respective shares in the responsibility for damage under apportionment legislation concerned with what is "just and equitable" is a finding upon a "question, not of principle or of positive findings of fact or law, but of proportion, of balance and of relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds": Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529 at 532 quoting from the speech of Lord Wright in British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. The High Court in Podrebersek then said: "Such a finding, if made by a judge, is not lightly reviewed". Thus, for the High Court it was the nuanced choice involved in the weighing and balancing of factors which effectively gave a choice to the judge from a legitimate range of possibilities, none of which could be said to be legally wrong. 91It is of interest to recognise that British Fame was a collision case in Admiralty where the kind of question in issue - the assessment of fault of the masters and ships involved was entrusted to (generally) highly experienced Admiralty judges routinely (if not invariably) assisted by experienced seafarers and pilots in the form of Elder Brethren of Trinity House in the making of such value judgments. Their expertise in making such judgments was to be relied on in the encouragement of prompt and reliable decision-making for the benefit of an important Imperial and international industry and its insurance market. In the two sentences immediately prior to those quoted by the High Court in Podrebersek Lord Wright said (at 201): "[I]t would require a very strong case to justify any such review of or interference with this matter of apportionment where the same view is taken of the law and the facts. It is a question of the degree of fault, depending on a trained and expert judgment considering all the circumstances, and it is different in essence from a mere finding of fact in the ordinary sense." See also The 'Peter Benoit ' (1915) 84 LJ (P) 87; The 'Karamea ' [1921] P 76 at 78; Kitano Maru (Owners) v Otranto (Owners) [1931] AC 194 at 204. 92The policy questions that may be seen to lie behind this approach to the adjudication of collision cases in Admiralty are not relevant here and need not be discussed. Nor were they relevant to the High Court's statement of approach in an ordinary contributory negligence decision in personal injuries claims in Podrebersek . Though, it is to be noted that their Honours in the High Court qualified what they said by the phrase "if made by a judge". 93In Singer v Berghouse [1994] HCA 40; 181 CLR 201, in dealing with the first stage of the analysis of the task under the Family Provision Act 1982 (NSW), ss 7 and 9 (being the preconditional satisfaction of the Court of the state of affairs set out in s 9(2)(a): "satisfied that ... the provision (if any) made in favour of the eligible person by the deceased is ... inadequate for the proper maintenance, education and advancement in life of the eligible person") the plurality (Mason CJ, Deane J and McHugh J) referred to the Privy Council decision in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 and the evaluative character of "proper" and "adequate", especially the former. Their Honours expressed the view at 210-211 that the question is "strictly one of fact, notwithstanding that it involves the exercise of value judgments". The reference to "strictly one of fact" can be seen by reference to the judgment of Mason J in White v Barron [1980] HCA 14; 144 CLR 431 at 441-443 to be in contradistinction to a "discretionary judgment". (See the contrary in the view of the Privy Council in Bosch at 480 and see also Goodman v Windeyer [1980] HCA 31; 144 CLR 490 at 502 and 509.) Nevertheless, despite the contradistinction, the plurality in Singer v Berghouse accepted that the value judgment was of much the same kind as a sound discretionary judgment for decisions such as concerned the assessment of pain and suffering or loss of amenities of life in general damages. What was important was the relativity of the standard for assessing "adequate" and "proper", leaving the court "to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards" (per Gibbs J in Goodman v Windeyer at 502). The plurality continued, "strictly speaking ... the jurisdictional question, though it involves the making of value judgments, is a question of objective fact to be determined by the judge ...": Singer v Berghouse at 211. The correct approach for appellate review was, however, that stated by Kirby P in Hunter v Hunter (1987) 8 NSWLR 573 at 576; Golosky v Golosky unreported Court of Appeal 5 October 1993 and in Singer v Berghouse unreported Court of Appeal 24 July 1992, being the principles that govern the review of discretionary decisions. 94In Norbis v Norbis [1986] HCA 17; 161 CLR 513 the High Court concluded that the proper approach to appellate review of a decision by a judge under the Family Law Act 1975 (Cth), s 79 was by reference to the principles in House v The King . Mason J and Deane J said at 518: "Here the order is discretionary because it depends on the application of a very general standard - what is 'just and equitable' - which calls for an overall assessment in the light of the factors mentioned in s 79(4), each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends." 95It was not irrelevant in Norbis v Norbis that the order under s 79 was one that the judge considered in all the circumstances to be "fit", which could be made if the judge was "satisfied" that it was "just and equitable" to do so. 96Other subjects of appellate review sometimes involve evaluation and judgment yet are not approached by an application of House v The King. Whether a contract is unjust for the operation of the Contracts Review Act 1980 (NSW), s 7 is a finding of fact by reference to a broad standard. As such, the decision is one open to review under Warren v Coombes [1979] HCA 9; 142 CLR 531. That does not mean, however, that error will be easily revealed or a conclusion of a primary judge lightly overturned: Antonovicv Volker (1986) 7 NSWLR 151 at 154-156; Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256 at 261 and 270-271 and Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 at [38] and [107]. The appeal court must conclude that the primary judge's conclusion (the finding called for by s 7) about injustice was wrong. That process involves an appeal by way of rehearing or review of the facts (subject to usual limitations discussed in cases such as Fox v Percy [2003] HCA 22; 214 CLR 118). The nature of the evaluation (as to injustice) is partly intuitive and not necessarily amenable to crisp identification, even to the degree that other general standards are, such as negligence. Nevertheless, it is a legal standard (together with fairness) which is immanent in the fabric of the law. The demonstration of error and the substitution of the view of the appellate court may both require, in any given case, a degree of persuasion of clarity. That said, the policy behind the Contracts Review Act and the elemental importance of the conclusion of the presence of injustice both to it and the administration of the law, might make it rare that the appeal court would conclude for itself that the contract was unjust, but not overturn a conclusion by the primary judge that it was not unjust because of considerations such as lack of force of persuasion or comity or respect. The contract is either unjust or not. That is a central consideration to the operation of the Act in the administration of the law. 97Turning to the Evidence Act s 97, it is important to have regard to the text of the provision. Tendency evidence (to use a shorthand) is not admissible to prove that a person has or had a tendency to act in a particular way or to have a particular state of mind unless two preconditions are satisfied. The first is that a notice must be given in accordance with s 97(1)(a). The second is that the court "thinks that the evidence will ... have significant probative value" in accordance with s 97(1)(b). 98The question of probative value is a question of relevance: the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. This is a matter of logical analysis in the light of the balance of posited evidence. It is a judgment or evaluation, but one by reference to a fixed clear legal standard and is not an evaluation of the kind the subject of consideration in Podrebersek, Norbis v Norbis, Singer v Berghouse or even s 7 of the Contracts Review Act. This is the case even with the addition of a qualifying adjective "significant". 99That, however, is not the end of the enquiry. A statutory precondition is provided for in s 97(1)(b) that the court (that is the judge ruling on the admissibility) thinks something. That something is that the evidence "will", that is looking forward, have the required quality. I do not think that that requires predicting how a jury will react to the evidence (if there is a jury), other than through the logical assessment called for by the definition of "probative value". What is required however, as a precondition, is that the court thinks that it will have that effect in the body of anticipated or expected evidence. In the ordinary course this is a quintessential task of a trial judge dealing with the living fabric of the trial and the evidence unfolding before him or her. 100The words of the section are not "if the evidence has significant probative value"; they are, "unless ... the court thinks the evidence will ... have ... significant probative value". What is to be reviewed in the appellate process is the state of mind of the court about a future hypothesis based on logical processes, including weighing of evidence in a framework of proven or assumed evidence. The appeal court is not reviewing the fact of the probative effect of the evidence; it is reviewing what the court thinks that will be. That involves an assessment as to whether the judge approached the question by reference to correct principles and whether it was open for him or her to draw the (limited) evaluative conclusion that was drawn. Review will be of the character analogous to that discussed in Shrimpton v The Commonwealth [1945] HCA 4; 69 CLR 613 at 620, referred to in Dwyer v Calco Timbers at 138 [39]; and in Minister for Immigration v Eshetu [1999] HCA 21; 197 CLR 611 at 651-654, though, importantly, recognising that the power the subject of review is judicial and not executive. In practice, there is likely to be little difference between this approach and the application of House v The King . 101Respectfully, I cannot agree with Campbell JA that the words "the court thinks ... will" are to be dealt with as his Honour did in Ford at [107]. There is, in my view, a real difference between the review of a statutory precondition of what the court thinks will be the probative value of evidence and the appellate review of the fact of the probative value. I am reinforced in this view by the clear expression of opinion by Sackville J (with whom Whitlam J and Mansfield J agreed) in Jacara at [74]. There his Honour (admittedly by way of obiter dicta) expressed his clear view, which, to his mind, explained what he saw as the correct concession of counsel. 102Approaching the matter in this way, I agree with the reasons of Simpson J that his Honour did not err in the way he approached s 97. 103Turning to s 101, the difficulty arising from the use of the word "adduced" has been discussed in R v Nassif [2004] NSWCCA 433 at [46]-[47], Fletcher and Zhang . Nevertheless, it has been approached as a rule of admissibility or exclusion: R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 and I do not propose to approach it otherwise, it not being argued that we should. 104As the Chief Justice's reasons reveal, the approach to the Evidence Act, s 101 has not been entirely uniform. The reasons of Campbell JA in Ford reveal, however, that the predominant view, at least in New South Wales, that is based on R v Blick [2000] NSWCCA 61; 111 A Crim R 326 is to the effect that what is involved is a balancing exercise which involves an assessment of substantiality of probative weight over the prejudicial effect the evidence may have that should be reviewed under the principles of House v The King . This view is supported by the recognition that the assessment to be made under s 101 will, or may, involve, amongst other things, a consideration, in advance, of the utility of, and protection afforded by, directions that may be necessary or available as the evidence is given or in any summing up. Whilst in one sense a matter of balance on which an appellate court could reach its own view, I am unpersuaded that the cases that view the evaluative process as akin to a discretion and calling for appellate review on the basis of House v The King are wrong. This is especially so, here, where there has been no substantial challenge in the submissions by the appellant to the approach taken by Campbell JA in Ford as to s 101. 105In any event, as the reasons of Simpson J demonstrate, whether one approaches the element of the consideration concerned with s 101 by reference to House v The King or as evaluation under Warren v Coombes the same result obtains: the appeal should be dismissed. 106I said I would return to leave. If a five judge bench had not been assembled, I would have refused leave: cf R v Matovski (1989) 15 NSWLR 720 at 721-722. The five judge bench was assembled principally to deal with the conflict in appellate approach to review of s 97 decisions. That question does not strictly arise given my view as to how the matter should be approached as a review under s 5F of a discretionary decision not to separate the trials in question, though, I hope not inappropriately, I have addressed it. In the circumstances, and given the argument on s 97, I would grant leave and dismiss the appeal. 107The view that I have taken as to the appropriate perspective for the disposition of the s 5F appeal before the Court and my reasons for dismissing the appeal should not have an effect on the scope of any argument or issues in any appeal under the Criminal Appeal Act, ss 5 and 6, should there be a conviction. I leave open, however, as unnecessary to answer a consideration of the relationship, if any, between reasons in dismissing an appeal under s 5F and the disposition of any final appeal under ss 5 and 6. SIMPSON J : Pursuant to s 5F(3) of the Criminal Appeal Act 1912, the applicant seeks leave to appeal against the decision of Bozic DCJ on 4 November 2010 refusing (in part) an application by the applicant for severance of certain counts on an indictment.

Background 108The applicant is charged with 18 counts of sexual offences against six complainants, all male and all under the age of 16 years. The offences are alleged to have been committed between 1980 and 1991, when the applicant was a Catholic priest. The complainants were parishioners and altar boys. 109By Notice of Motion dated 25 October 2010 the applicant sought orders for a separate trial of the counts that related to each complainant. 110By letter dated 28 October 2010 the Office of Director of Public Prosecutions ("the DPP") gave notice under s 97 of the Evidence Act 1995 of its intention to adduce tendency evidence. The DPP identified the tendencies it sought to prove as: "1. The person whose 'tendency' is the subject sought to be adduced is [DAO]. 2. The tendency sought to be proved is his tendency to act in particular way, namely to ● Involve himself with male children by leading youth groups, playing sports or taking them camping or on other outings ● To identify male children who are having difficulties at home or at school ● To give those male children with special attention or counselling (sic) ● To then engage in inappropriate sexual conduct with those male children - or to have a particular state of mind, namely To seek sexual gratification from involvement with male children in wrestling and other games ● To have a sexual attraction towards male children in particular [giving names of complainants]." The notice identified, by reference to witness statements, the evidence upon which the DPP proposed to rely to establish the stated tendencies. Essentially, the DPP proposed to rely, as evidence of tendency, on the evidence of each complainant in respect of the counts relating to each other complainant. 111It was, it seems, common ground that if the evidence of one complainant was admissible in relation to the counts concerning any other complainant, then it was appropriate that the counts relating to those complainants be tried jointly; if the evidence were not so admissible, then that count or those counts ought to be severed from the indictment. 112The DPP's position was that the evidence of each complainant was admissible in relation to the counts relating to each other complainant (if this were accepted, it would mean that all 18 counts involving all six complainants were tried jointly); the applicant's position, at the opposite end of the spectrum, was that the evidence of no complainant was admissible in relation to the counts relating to any other complainant (if accepted, this would result in six separate trials). 113The course eventually adopted by Bozic DCJ lay between these two extremes: he ordered that the counts in respect of three complainants be separated, but declined so to order in respect of the remaining three complainants (to whom I will refer as SM, MB and JC), which he ordered were to proceed as a joint trial. The application under s 5F(3) is concerned only with the counts relating to those three complainants. 114It is as well to set out the whole of the order his Honour made. It was: "1. That count one in relation to [PG], count two in relation to [JL] and count eight in relation to [BB] be severed. 2. I decline to order that the remaining counts, that is, counts three to seven inclusive and nine to eighteen inclusive, be severed. The effect of my orders is, therefore, that the trial in which the jury is able to be empanelled on Monday 8 November 2010 can proceed in relation to all counts in respect of the complainants [SM], [MB] and [JC]." 115Implicit in that determination was an anterior determination that the evidence of each of those three complainants was admissible, under s 97, in the trial of the counts relating to each other of those complainants, to prove the asserted tendencies. If this were not clear from his Honour's reasoning process (which it is), it is clear from what took place at the hearing of the Notice of Motion. Counsel for the Crown presented an indictment (containing all 18 counts). She did this, she said, in order "to found jurisdiction under s 130". 116She was referring to s 130 of the Criminal Procedure Act 1986. That section relevantly provides as follows: "(1) In this section, court means the Supreme Court or District Court. (2) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial. (3) If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled: (a) the proceedings are part of the trial of the accused person, and (b) the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial. (4) ... (5) ..." 117It is thus quite clear, in my opinion, that the substance of the issue upon which Bozic DCJ ruled concerned the admissibility of the tendency evidence upon which the Crown sought to rely. If that were not so, there would have been no call for the applicant to be arraigned on the indictment. 118Bozic DCJ did not make an express ruling on admissibility of the evidence. But it is equally clear, and it was accepted on the hearing of the application, that the substance of the orders made incorporated a ruling that the evidence of SM, MB and JC was admissible, under s 97, as tendency evidence in the trial of the allegations of each other of those complainants. 119It was that ruling that was determinative of the severance, or separate trials, application; the correctness of the determination with respect to admissibility of the evidence is central to the present application.

Jurisdiction 120In its written submissions, the Crown raised what it called a jurisdictional issue, questioning the jurisdiction of this Court to deal with the application. 121Jurisdiction is conferred by s 5F(3) of the Criminal Appeal Act , which is in the following terms; "Any other [other than the Attorney General or the Director of Public Prosecutions] party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal." There being no certificate under sub-s (3)(b), the applicant requires leave to appeal. 122Jurisdiction depends upon there being "an interlocutory judgment or order". It has long been established that a ruling on evidence is not "an interlocutory judgment or order": R v Powch (1988) 14 NSWLR 136; R v Edelsten (1989) 18 NSWLR 213; R v Steffan (1993) 30 NSWLR 633. 123The Crown's argument was, simply, that the substance of the present application is to challenge the ruling that the evidence of each of the three complainants SM, JC and MB was cross admissible. The application is no more than a disguised challenge to a ruling on evidence, and this Court therefore is without jurisdiction. 124In my opinion, that argument cannot be sustained. The fact is that the application before Bozic DCJ was for an order for severance of counts on the indictment. An order was made. It is that order that is the subject of the application. This Court therefore has jurisdiction. 125The fact, however, and it is the fact, that the sole issue before this Court concerns a determination on the admissibility of evidence is highly relevant to whether or not leave ought to be granted. It will be convenient to deal with that after a consideration of the issues raised.

The facts alleged 126The evidence upon which the Crown proposed to rely was put before Bozic DCJ in statement form. I will outline the salient facts below, as derived from those statements. Naturally, nothing that appears below is intended to represent any finding of fact; what follows is an account of the allegations made by the complainants, and by the Crown. SM 127SM was born in December 1973. Five counts on the indictment alleged offences of indecent assault against him, committed between 31 January 1987 and 28 December 1987. 128SM and his family were regular church attenders, and SM served as an altar boy. He involved himself in the Catholic youth group, organised by the applicant. Six to eight of the boys who were members of that group took up wrestling, which the applicant taught. 129During his childhood and adolescence SM experienced fear and anxiety within his family. SM sought the support of the applicant, who came to be something of a mentor to him. The applicant made a number of early evening appointments at the presbytery (at which he lived) for SM to talk to him. The consultations began with conversation, and proceeded to a wrestle. 130On one occasion, while straddled by SM in a wrestling position, the applicant wriggled his legs, hips and pelvis, and used his hands and arms to push against SM, and move from side to side. SM could feel the applicant's pelvis under his (SM's) buttock, and the applicant pushed his flaccid penis into the cheeks of SM's buttocks. The applicant used his upper torso to keep SM in position. The applicant's eyes had "an empty look" and were "blank"; he was not looking at SM, and did not make eye contact as he usually did when wrestling. The applicant had a slight smirk or smile on his face. SM pushed himself off, moved away, left the presbytery and went home. 131A week or two later SM returned to the presbytery, again for support, as he felt isolated. He told the applicant that he was not doing well emotionally, that he felt anxious and depressed. The applicant told SM that wrestling was good to release his aggression, and a wrestle began. The applicant grabbed SM's testicles and penis, and held them until SM released a leg lock in which he had held the applicant. SM asked what the applicant was doing: the applicant said: "What do you think I'm doing, I was just reaching up to get myself out. You had me." SM perceived what the applicant did as sexual. 132A third incident occurred another week or two later, again at an arranged meeting at the presbytery. SM felt depressed and lonely and felt that he had nowhere to go. After the two had chatted, they again began to wrestle. The applicant pinned SM down, sitting on him, on top of SM's penis and hips. He pushed his arms hard down on SM's penis. SM pushed the applicant, the applicant moved over SM's face. SM could feel his penis. The applicant squeezed the cheeks of SM's buttock, more than once. Although he was aware of a move in wrestling that involves taking hold of a buttock cheek, SM interpreted what the applicant did as sexual. The applicant pushed SM down, with his anus pushing against SM's penis. JC 133JC was born in June 1979. The applicant is charged with two counts of sexual offences against him, one of committing an act of indecency, and one of indecent assault, both allegedly committed between 27 July 1991 and 31 January 1993. 134When he was in about Year 6 JC became an altar boy. He also had a troubled home life, and sought comfort and support from the applicant. JC told the applicant that he had been abused by his uncle, and was consoled by the applicant, who told him that it was not his fault, and hugged and patted him. JC and the applicant also engaged in wrestling, wearing shorts but no shirt. After a time, the applicant offered JC a shower before he went home, and, initially JC showered alone. Later, though, the applicant invited JC into the shower to "play a game". JC hesitated, but the applicant said that they would be clothed. The game the applicant suggested involved JC spitting in the applicant's face. (This constitutes the alleged act of indecency.) 135The indecent assault was alleged to have been committed on a camping trip organised by the applicant for altar boys. JC shared a tent with the applicant. On one night, he was asleep, face down, in his fully zipped sleeping bag, dressed in shorts and a t-shirt. He woke to find the applicant on top of him, with an erect penis against his buttock cheek. JC said that he was trying to sleep. The applicant said: "I just want to lie on you for awhile." JC felt the applicant's penis, still erect, pushing into his buttock, in a rubbing motion. MB 136MB was born in March 1980. The applicant is charged with eight offences against him, allegedly committed between 18 April 1990 and 11 March 1991. Three are of indecent assault. However, five are of sexual intercourse, with a person between 10 and 16 years of age, offences of considerably greater gravity than those allegedly committed against the other two complainants. 137MB stated that he became an altar boy in about Year 3 or 4, before the applicant arrived in his parish. MB was having behavioural issues at school and was referred to the applicant by his class teacher. The applicant suggested that they play squash together. With his parents' approval MB agreed. MB trusted the applicant and felt special because the applicant was very caring towards him and MB thought that he was singled out for special attention. The applicant took MB to the presbytery for a talk, and into his own quarters. The two would sit on chairs, and the applicant would place his hand on MB's leg or around his shoulders. MB did not consider this to be sexually motivated. 138The two arranged to play squash on a twice weekly basis. Although this is what MB's parents believed was happening, in fact they played squash only once weekly. On the other occasions, the applicant took MB to the presbytery or to a park. At the applicant's instigation, MB did not tell his parents that this was happening. The applicant told him: "This is all part of the healing process about making you feel better." 139The sexual assaults began at the end of 1991, when MB was 11 years of age. The applicant drove MB to the park, and onto a dirt road overlooking a dam. While they talked, the applicant placed his left hand on the inside of MB's right leg near the groin. He said: "Relax. It's okay. This is alright." After rubbing his hand on MB's leg for a time, he told MB that he could do the same thing to the applicant, which MB did. The applicant said: "Is it good? Does it feel good? I'm going to show you something else in a minute that will make you feel better." He then put his hand down the front of MB's shorts and underwear, put his hand on MB's penis, and began to rub it up and down. He said: "It's alright. You will feel better in a minute." MB's penis became erect. The applicant took MB's hand and put it through his shorts and underwear and onto his own penis, which was also erect. Mutual masturbation took place. The applicant moaned and ejaculated. He said to MB: "How's that? Do you feel better now? We'll stay out here a bit longer and then we'll go into town and play squash ... This is our thing and you are not to tell anyone about this. I could make things harder for you at school and no-one will believe you anyway." 140On another occasion, the applicant again masturbated MB, and then told him that they were going to do something different. He told MB to kneel in front of him and to put his mouth on the applicant's penis. MB did so, and the applicant rubbed MB's shoulders. He ejaculated. He told MB that this was "a big secret", that MB was not to tell anybody, not even his sister, and: "This is how we fix your problem. This is how God wants it." 141Similar events, which it is not necessary to describe in detail, occurred on a fortnightly basis until just before MB's twelfth birthday in March 1992. After one such event, the applicant said: "It's alright. You didn't do anything wrong. This is what you are meant to do. This is how God fixes things and what he wants." On another occasion the applicant said: "If you don't do it nothing will be fixed and you will still have all your problems." In his statement MB recounted the details of five such incidents. 142He went on to state that, a few weeks before his twelfth birthday, the applicant told him that he had found a way to "fix things" for MB, and that he (the applicant) was going to get MB out of home, and that MB had to agree with what the applicant was about to say to MB's parents. (MB was puzzled, as he did not want to leave home, but believed that the applicant was trying to help him to be good.) 143The applicant and MB spoke to MB's parents at their home; the applicant told them: "[M] has told me that you have put a saddle on him at our (sic - possibly 'your') property and have whipped him around the yard." This was not true but MB did not dissent, believing that the applicant was trying to help him through God. 144(In a later statement, not material for present purposes, MB made some adjustments to dates and his age at the time of certain events he had recounted.)

The application for leave to appeal 145The grounds of the application are stated as follows: "1-3 His Honour erred in finding the evidence with respect to the complainant SM [MB], [JC] was admissible as tendency evidence pursuant to ss 97(1)(b) and 101(2) of the Evidence Act ... in the trials with respect to the [other] complainants ... 4 His Honour erred in failing to order that the trials with respect to the complainants SM, MB and JC be heard separately from one another; and/or in the alternative, 5 That the trial with respect to the complainant MB should be heard separately from the trials with respect to the complainants SM and JC." The substance of grounds 4 and 5 is identical with that of grounds 1-3. Although the order sought to be appealed is the order for joint trials of the allegations of complainants SM, MB and JC, the only issue to which argument in this Court was directed and which is determinative of the appeal (if leave is granted) is the implicit ruling that the evidence of each of those complainants is admissible in relation to the allegations of each other. That calls for consideration of the admissibility of evidence as tendency evidence.

Tendency evidence 146The admission of tendency evidence is governed by s 97 of the Evidence Act , which is in the following terms: "97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party." 147"Probative value" is defined in the Dictionary to the Evidence Act in the following way: " probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.: 148"Significant" means "important" or "of consequence": R v Lockyer (1996) 89 A Crim 457; R v Lock (1997) 91 A Crim R 356; and see, to similar effect in different words, Zaknic Pty Ltd v Svelte Corporation Pty Ltd [1995] FCA 1739; 61 FCR 171. 149For the purpose of criminal proceedings, s 101 imposes an additional hurdle to the admission (or use) of tendency evidence. It provides: "101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant." "Prejudicial effect" is a reference to evidence being used (against an accused person) for a purpose other than that for which it is admitted. 150During the course of the argument in this Court, it became apparent that a preliminary issue of some importance had emerged. That issue concerns the manner in which this Court is to determine appeals (whether interlocutory or otherwise) that raise the correctness of decisions on the admissibility of evidence tendered under s 97. There is a clear conflict of authority in this respect. The issue is whether this Court is bound to determine such appeals on the principles stated in House v The King [1936] HCA 40; 55 CLR 499 or by the application of its own independent judgment as to the facts: Warren v Coombes [1979] HCA 9; 142 CLR 531. 151In R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 I said (with the concurrence of McClellan CJ at CL): "36 A decision to admit or reject evidence tendered under s 97(1) must, obviously, be a decision based upon the information and material available to the judge at the time the decision is made. It is a decision involving 'a degree and value judgment' (a phrase drawn from remarks made in the High Court in Fleming v Hutchinson ; Conroy v Veit (1991) 66 ALJR 211, when refusing special leave to appeal in an application which otherwise has no bearing upon the present case). Sackville J appears to have taken a similar view in Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51. Such a decision is reviewable on appeal only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499; see also R v Milton [2004] NSWCCA 195 at [33] and Jacara at [75] ... 48 ... the fifth step in the s 97(1) process (in a criminal case) is the determination of whether, in the opinion of the court, the probative value of the evidence substantially outweighs any prejudicial effect it may have upon the accused. That again involves an assessment and prediction of the use the jury may make of the evidence, against the risk that it may make some improper use of it. This task is also an evaluative one or one involving "a degree and value judgment" and is reviewable on appeal on House principles."." (bold added) 152In R v Ford [2009] NSWCCA 306; 273 ALR 286 Campbell JA disagreed, saying: "101 I do not, with respect, agree that any of the decisions involved in the application of s 97(1) involve 'a degree and value judgment' of any different type to that involved in, for example, a decision that a person has acted negligently ( Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 especially at 533), a decision whether a contract is unjust ( Antonovic v Volker (1986) 7 NSWLR 151 at 154-6; Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256 at 261-3 and 270-1; Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41 at [107] and [110] , or whether it is just and reasonable to extend a limitation period ( Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56 at [107]-[110] ). Concerning all the types of decisions just mentioned, an appellate court exercising an appeal by way of rehearing substitutes its own view once it is convinced that the trial judge was in error. The question posed by s 97(1)(b) namely, whether the evidence will have significant probative value, is a question that is answered by a ' yes ' or ' no ' answer. In that respect it is not a question of degree. 102 In so far as Fletcher at 317 [36] invokes Jacara at 69 [75] , there Sackville J was recording a concession of the parties that the House v The King standard of appellate review applied. In so far as the passage invokes R v Milton [2004] NSWCCA 195 at [33], there, Hidden J was talking about the standard for appellate review of decisions under s 101, not of decisions under s 97. ... 108 Even though the decision under s 101(2) has been held not to be a discretion, the matters to which Sheller JA referred in R v Blick [[2000] NSWCCA 61; 111 A Crim R 326] ... suggests that appellate review of a judge's decision under s 101(2) should be conducted in accordance with House v The King criteria. ... 110 That the standard for appellate review of a decision under s 101(2) is the House v The King standard is consistent with the course of authority in this court." 153In R v Zhang [2005] NSWCCA 437; 158 A Crim R 504, I expressed the view I had expressed in Fletcher in relation to coincidence evidence tendered under s 98 of the Evidence Act . Basten JA, in a dissenting judgment, took a similar view to that later taken by Campbell JA in relation to s 97: see [45]. On 4 August 2006, an application for special leave to appeal to the High Court of Australia was refused, although Gummow J, speaking for the Court, acknowledged that the issues raised were significant, and may, on another occasion, warrant a grant of special leave: Zhang v The Queen [2006] HCATrans 423. 154Both Campbell JA and Basten JA concluded that the test for appellate review is that stated in Warren v Coombes [1979] HCA 9; 142 CLR 531. In that case, it was held that the appellate court, determining an appeal against a decision that the defendant driver of a motor vehicle had not been shown to be negligent, was obliged to reach its own conclusion as to the inferences to be drawn from the primary facts found by the trial judge (p 553). 155Because of the conflict of authority, and the importance of the question, (which, as I have indicated, emerged only during the course of argument) the Chief Justice determined that a Court consisting of five judges would be convened. The initial bench (Kirby, Schmidt JJ and myself) concluded the hearing of the application. With the concurrence of the parties, Spigelman CJ and Allsop P were added to the bench, and participated without the need for further oral hearing. 156After consideration, I adhere to the view I expressed in Fletcher . In my opinion, review by this Court (as, possibly, distinct from the Court of Appeal) of a decision under s 97 is governed by the principles stated in House v The King . It is insufficient that, if this Court were in the position of the primary judge, it might have taken a different course. The appellant must establish that the primary judge acted on a wrong principle or was influenced by extraneous or irrelevant matters, or mistook the facts, or failed to take into account some material consideration; or that, even where one or more of these is not apparent, error can be identified because the decision is unreasonable or plainly unjust. I give my reasons for that conclusion below.

The proceedings in the District Court 157In the District Court the Crown expressly disclaimed reliance upon the evidence as establishing "striking similarity" of the conduct alleged against the applicant but, rather, relied upon it as establishing "a pattern of behaviour, a modus operandi, a system or pattern and common threads" in his conduct: see R v PWD [2010] NSWCCA 209 at [35]. It put forward ten features of the pattern or modus operandi that, it asserted, could rationally affect the assessment of the probability of one or other of the facts in issue. These included: "(c) The [applicant] was able to build up a rapport with the complainants; (d) The [applicant] provided the complainant[s] with special attention and for some this included counselling; (e) The complainants were all altar boys or members of youth groups with which the [applicant] was associated at the time of the alleged offences ..." 158As I have mentioned above, in the District Court the Crown proposed to proceed to a trial that involved six, not three, complainants. Since Bozic DCJ ordered separate trials in relation to three, the present question concerns only the allegations of SM, JC and MB, in respect of whom his Honour ordered a joint trial and whose evidence he ruled was cross-admissible as tendency evidence. It is, however, relevant to note what led to the severance of the other counts. 159Common to the allegations made by SM, JC and MB was a history of behavioural or emotional problems rendering them vulnerable, and (on the Crown case) the applicant's taking advantage of that vulnerability by paying them special attention, and "grooming" them for sexual exploitation, when he was alone with them, ostensibly for pastoral purposes. There was an element of planning, or at least pre-meditation, in what the Crown asserted the applicant did. 160His Honour held that that was not so in relation to the other three complainants. In two cases, the offences were alleged to have been committed in the presence of other boys. What was alleged was more ambiguous than the conduct alleged by SM, JC and MB (although the spitting incident alleged by JC has an element of ambiguity). The offences appeared to be opportunistic. And the statements did not suggest that these boys were identified by the applicant as having difficulties at home or at school, as a result of which he paid them special attention. These latter two circumstances were considered by his Honour to be "critical" divergences from the Crown case in relation to SM, JC and MB.

The decision of Bozic DCJ 161In his analysis, Bozic DCJ expressly directed his attention to three specific questions which he stated as: (i)Is the evidence tendency evidence? (ii)Does the evidence have significant probative value? (iii)Does the probative value of the evidence substantially outweigh any prejudicial effect it may have upon [the applicant]? The first and second questions are based on s 97 of the Evidence Act . The third is drawn from s 101. 162His Honour dealt with each of the three questions sequentially. In respect of the three complainants the trial of whose allegations he separated, he found that the evidence was not in fact tendency evidence.His Honour's reasoning in this respect is that the evidence of those three complainants did not meet the "significant probative value" test; but that the allegations of SM, JC and MB did: "... in that it does reveal a modus operandi or pattern of behaviour alleged by the Crown." 163Bozic DCJ specifically dealt with each of the ten features the Crown had advanced as establishing the relevant modus operandi or pattern and found that each had been made out (in the sense that there was evidence in the Crown case to support it). In respect of the allegations of SM, JC and MB, he found that the evidence could rationally affect the probability of the existence of a fact in issue, saying: "If accepted by a jury the evidence sought to be relied upon would demonstrate that the accused was a person who had a sexual attraction towards male children, that he identified male children who are having difficulties at home or at school, gave attention to those children by way of special individualised attention or counselling, and then engaged in inappropriate sexual conduct." 164He proceeded to deal with the second question. He found that the evidence of those three complainants did have significant probative value: "... for essentially the reasons set out in para 88 of the judgment of Beazley JA in R v PWD [[2010] NSWCCA 209] (see below)." He said: "In my view the evidence has significant probative value in determining whether the evidence of each of the [other] complainants should be accepted. The likelihood that the conduct alleged occurred in relation to the other complainants makes it more likely that the accused acted in that way in respect of each particular complainant, bearing in mind that, as I understand it, the case for the accused is that none of the incidents alleged by the three complainants took place. It also has significant probative value in rebutting the suggestions:

1. that the accused was never alone in his private rooms with any of the three complainants;
2. that the evidence of [MB] is a confabulation; and
3. that the touching of [JC] in the tent was a nightmare of [JC] or perhaps no more than accidental touching." He added, in relation to the other complainants, that if he were wrong in relation to the first question (was the evidence tendency evidence?), then their evidence would not have significant probative value, for the reasons he had earlier given. 165He then turned to the third (s 101) question and considered whether the probative value of the evidence substantially outweighed any prejudicial effect it may have upon the applicant. He held that it did. One consideration was the decision he had already made limiting the trial to the allegations made by three, not six, complainants, thereby excluding evidence of a range of different kinds of conduct involving the spontaneous and the pre-meditated, which would introduce undue complexity into the jury directions and thence create a real risk that the jury would determine guilt on the basis of an impression that the applicant had a general sexual interest in young males rather than focussing on the necessity for proof of each actual count on the indictment. He was of the view that a jury in a joint trial of the allegations of all three complainants would be capable of following the directions they would be given and not misuse the tendency evidence for a purpose for which it was not admitted.

Preliminary issue: House v The King [1936] HCA 40; 55 CLR 499; or Warren v Coombes [1979] HCA 9; 142 CLR 531? 166Before embarking on a consideration of the respective arguments advanced on the application, and my conclusions thereon, I should state my reasons for my view that the test to be applied is that stated in House v The King . 167In Ford , Campbell JA gave a number of reasons for his expressed disagreement with my proposition in Fletcher , that a decision under s 97(1) involves "a degree and value judgment". One of these reasons was my reliance upon the judgment of Sackville J in Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51. His Honour asserts that, at [75], Sackville J was recording a concession made by the parties as to the applicable standard of appellate review. In saying this, Campbell JA was echoing a similar statement made by Giles JA in R v GAC [2007] NSWCCA 315; 178 A Crim R 408 at [76]. In the light of these observations by two senior judges, I have reconsidered my conclusion that Sackville J "appeared" to take the view that a decision under s 97(1) involves "a degree and value judgment". 168In [74] of Jacara , Sackville J said: "Moreover, the statutory language incorporates a test which, although it will normally be applied before facts have been found, involves 'a degree and value judgment' having regard both to the evidence to be adduced and other evidence adduced or to be adduced." When recording the concession at [75], his Honour said: "Doubtless it was for these reasons that the appellant accepted that an appellate court reviewing a decision to exclude evidence under s97(1) of the Evidence Act is to be exercised in accordance with the principles applicable to a discretionary judgment ..." 169I read each of these as separate indications that his Honour was of the view that I attributed to him in Fletcher . Whitlam and Mansfield JJ agreed. In my opinion, this is substantial authority for the proposition I previously expressed. I am heartened by the endorsement of this view by both the Chief Justice and the President. 170Significantly, in my opinion, Campbell JA went on, in Ford , to accept, on the basis of established authority, that "a decision" under s 101 is reviewable only on House v The King principles (at [108]-[110]). In my respectful opinion, there is, under s 101, no separate "decision". The relevant "decision" is a decision, under s 97, after the relevant tests have been applied, that the tendered evidence is, or is not, admissible. Accepting, as I reluctantly have in the past ( R v Nassif [2004] NSWCCA 433 at [46]-[47]; Fletcher at [46]-[48]; Zhang at [125]), that s 101 is a provision directed to the admission (more accurately the exclusion) of evidence, the effect of s 101 is to introduce into the s 97 decision, for criminal cases only, an additional consideration, which amounts to a further barrier or hurdle to admissibility. What is involved under s 101 is quintessentially a judgment - a judgment as to the probative value of the evidence relative to any potential prejudicial effect. That, no doubt, is why it is established that a so called "decision" (read judgment) under s 101 is reviewable only on House v The King principles. 171In making that judgment, it is legitimate and appropriate for the judge to take into account the ameliorating effect of any directions that may be available to reduce the prejudicial effect. That arises from the words: "... substantially outweighs any prejudicial effect it may have on the defendant." (bold added) 172I am unable to see that the reasoning in Warren v Coombes is applicable to a decision under s 97(1). What was here done did not involve the drawing of inferences from primary facts. It involved an evaluative process. 173Moreover, as the High Court emphasised (at p 537), the appeal there in question was to a court that operated under the regime provided by s 75A of the Supreme Court Act 1970, which, by sub-s (6), expressly conferred upon the appellate court the powers and duties, including the drawing of inferences and the making of findings of fact, of the primary court. There is no express equivalent power conferred on the Court of Criminal Appeal. 174The decision that was reviewed in Warren v Coombes could properly be characterised as an ultimate decision. While I appreciate that the reasoning is also applicable to some interlocutory decisions, there is here no ultimate conclusion comparable with a finding of negligence, a finding that a contract is unjust, or a decision to extend (or not extend) a limitation period (see Ford , [101]). The decision to admit, or not admit, evidence is essentially procedural. 175There are very good practical reasons for concluding that the legislature did not intend s 97 decisions to be reconsidered by this Court. If that were to happen, the trial process would become well-nigh unworkable. Anytime this Court took a different view from the trial judge and exercised an independent judgment, there would, without error on the part of the trial judge, have to be a new trial. That would be so where the appeal followed conviction. 176Finally, it is important to recognise the respective functions of the trial judge and the appellate court. This is not just a question of respecting the trial judge's view. It is a question of recognising the allocation of functions. It is the trial judge's function to make rulings on evidence. Those rulings ought not be reviewed unless they are erroneous - not because another court is in as good a position to make the decision, and takes a different view. 177Accordingly, I am of the firm view that the determination of the correctness or otherwise of the decision by Bozic DCJ that the evidence was admissible ought to be reviewed in this Court on the application of the principles stated in House v The King. 178However, since there is clearly a difference of opinion, I will also express my views on the alternative scenario, review in accordance with Warren v Coombes . 179In my opinion, the first question posed for himself by Bozic DCJ is somewhat superfluous. As defined in the Dictionary to the Evidence Act , tendency evidence is evidence of a kind referred to in s 97(1) which is tendered for the purpose referred to in that sub-section - that is, evidence that is tendered to prove that a person had a specified tendency. Whether it is capable of establishing such a tendency, and whether it does establish such a tendency, are different issues that do not raise questions of admissibility (other than, perhaps in the case of incapacity to establish tendency, of relevance). I have previously ( Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233; R v Cittadini [2008] NSWCCA 256; 189 A Crim R 492 ) expressed the view (to which I adhere) that tendency evidence is no more than a building block or stepping stone to provide the foundation for an inference that, on an occasion relevant to the proceedings, a person behaved in a particular way or had a particular state of mind. If it is not a species of circumstantial evidence, it is analogous thereto (see Re DF Lyons Pty Ltd v Commonwealth Bank of Australia [1991] FCA 74; 28 FCR 597 predating the Evidence Act and in the context of what was then known as "similar fact" evidence, per Gummow J). The foundation provided by the tendency evidence may be strong or weak, depending upon the nature of the evidence. The only qualification is that, to be admissible, its probative value must not be so weak as to be bereft of "significance". The level of generality of the evidence may affect the significance of its probative value: Townsend v Townsend [2001] NSWCA 136; Ibrahim v Pham [2007] NSWCA 215; Ford at [53]. 180I respectfully take issue with the statement by Howie J in R v Harker [2004] NSWCCA 427 at [57]: "... tendency evidence is placed before the jury as evidence tending to prove the guilt of the accused. The jury are asked to reason that, because the accused acted in a particular way on some other occasion or occasions, he or she must have acted in the same way on another occasion." (bold added) My difficulty with that formulation lies in the words "in the same way". Evidence of a tendency may cast light on the conduct or state of mind of a person without being evidence of conduct of the same kind: see Fletcher at [67], Ford at [38] and [41]-[44]. Similarity or dissimilarity in the nature of the conduct alleged is relevant to the assessment of both whether the evidence has probative value, and, if so, whether it is significant. If the evidence has significant probative value (and, in a criminal case, subject to s 101) it is admissible. 181In R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228, Spigelman CJ pointed out that, by reason of the terminology of the Dictionary definition of "probative value", the focus is on the capacity of the evidence to have the effect specified. Assessment of the probative value of the evidence does not depend upon any assessment of its credibility or reliability, nor on any prediction of the likelihood that a jury would accept it. 182It is to be borne in mind that a decision to admit evidence as tendency evidence is not the final step in the process. Such a decision merely opens a gate to enable the tribunal of fact to consider the import of the evidence. The actual probative value ultimately to be ascribed to the evidence lies within the province of the jury ( Fletcher , at [33]). 183For the purpose of s 97, the real question is whether the evidence is capable, to a significant degree, of rationally affecting the assessment (by the jury) of the probability of the existence of a fact in issue. 184That naturally calls for identification of the "fact in issue", the assessment of the probability of the existence of which is said to be affected by the evidence. 185In respect of each allegation, two facts can be postulated as relevant facts in issue: first, that the applicant conducted himself as alleged; secondly, that, in doing so, he acted with a sexual purpose or motivation. 186It could scarcely be contested that evidence that showed that the applicant had a sexual interest in, and attraction to, adolescent boys had probative value in respect of an allegation that he had sexually abused another adolescent boy. Probative value is established. The next question is whether that value was sufficient to qualify as "significant". 187In written submissions, senior counsel for the applicant identified as "the primary submission": "7. ... that his Honour erred in applying R v PWD by a comparative analysis ... rather than R v Barton [[2004] NSWCCA 229]." It is necessary, therefore, to turn to each of those decisions. 188PWD involved allegations by four students at a private school of sexual offences by the music teacher, later principal. The sexual misconduct alleged took different forms, including rubbing the thighs of one complainant while playing the piano, touching another while lying with him on a bed, fully clothed, and, with another complainant, mutual fellatio. The Crown proposed to adduce, as tendency evidence, the evidence of each complainant in the trials of each other allegation, and also evidence of two other witnesses in respect of whom no charges were laid. The tendency relied upon by the Crown was: "... to have a sexual interest in young male students, to engage in sexual activities with young male students, and use his position of authority to obtain access to young male students so that he could engage in sexual activity with them. ([34]) As in the present case, the Crown did not rely upon "striking similarities" but upon pattern. 189The trial judge, having determined that the evidence would not be admitted as tendency evidence, ordered separate trials of each complainant's allegations. The reason for the rejection of the evidence was a finding that the evidence did not have significant probative value. (The trial judge also would have rejected the evidence under s 101.) In short, it seems, the trial judge reached this conclusion because of the divergent nature of the conduct alleged by the various complainants. 190This Court upheld a Crown appeal under s 5F(3A) of the Criminal Appeal Act against that decision. Beazley JA reviewed the authorities in relation to tendency evidence in cases of a similar nature. She then said: "88 In my opinion, the evidence of the four complainants and the other two tendency witnesses is capable of rationally affecting the assessment of the probability of the respondent having engaged in the conduct alleged and had a sexual interest in doing so. So much was found by the trial judge. That evidence has significant probative value in the determination of the question whether the individual allegations should be accepted. The likelihood that such conduct occurred in relation to the other complainants and tendency witnesses would make it more likely that the respondent acted in the way alleged in respect of each particular complainant. It is evidence which also has significant probative value in rebutting the suggestion that the respondent's relationship with each of the complainants was innocent." It was this reasoning which Bozic DCJ adopted in his decision. 191Barton was an appeal against conviction. The appellant was a youth worker at a juvenile institution. In early 2000 he was charged with sexual offences against seven inmates, said to have been committed over a period spanning 1985 to 1991. The trial judge refused an application for separate trials. He allowed the evidence of each complainant to be used as tendency evidence in respect of the allegations by each other complainant. The jury convicted on all counts. 192This Court (Grove J, with whom Dunford and Kirby JJ agreed) upheld the appeal and ordered a new trial. It is to be noted that, in opening his judgment, Grove J observed that the appellant had been custody since the jury verdict almost two years earlier, and that, as he had concluded that there should be a new trial, he proposed to record his reasons "without dilating upon every facet of argument canvassed at the hearing in order to avoid the delay which elaboration would entail" (at [1]). 193His Honour posed the question to be answered as follows: "10 On the issue of tendency, it was in this case necessary to ask whether allegations of conduct of a lesser degree of seriousness ... such as watching the boys whilst they showered, being alone in their cabins with them, touching their bodies including genitals whilst applying lotions for skin disorders or, on one occasion, examining an anus for haemorrhoids ... should be admitted as probative of allegations of masturbation, fellatio and anal intercourse ..." He said: "14 The learned trial judge did not discriminate between the actions of lesser and those of greater degree of seriousness. Between the two assemblages of described conduct, there was no discernible pattern or 'signature'. There must have been a real risk that the jury would conclude guilt on the basis of a general impression that the appellant had some sexual interest in the complainants rather than focussing upon the necessity for proof of the actual offences charged. Whilst evidence of such an interest could well be probative in the sense of rebutting suggestions of misapprehension on the part of the complainants or of accidental touching, it could not have that quality when considering the very serious allegations concerning [he named two complainants]. The same conclusion is reached whether the evidence is looked at in terms of tendency or coincidence." 194Notwithstanding the penultimate sentence, it seems to me that his Honour reached his decision on the basis of s 101, and not of s 97. At [11] he said: "The evidence of acts of the lesser degree of seriousness can only be admissible as tendency evidence in proof of the more serious acts if they have probative value substantially outweighing their prejudicial effect." That is an application of the s 101 test. Section 101 arises only if the s 97(1) hurdle has been cleared by the party tendering the evidence - in a criminal case, the Crown. Grove J then referred to Pfennig v The Queen [1995] HCA 7; 182 CLR 461. 195Each of these cases was decided by the Court on the application of stated principle to its own facts. The question posed by Grove J in [10] of Barton is one of, firstly, the capacity of the less serious allegations to prove the more serious, and, secondly, if that capacity were established, the significance of the evidence. 196The passage relied upon in PWD is merely the application to the facts of that case of the principles Beazley JA had already expounded. There is nothing in either case that bound Bozic DCJ to reach the same result. Barton and PWD are illustrative of the divergence of facts and circumstances that will inevitably result in different outcomes without any misapplication of principle. 197The salient feature in Barton was the wide diversity in the seriousness of the allegations made. It was that that moved Grove J to apprehend a risk of misuse of evidence by the jury. That is what distinguishes Barton from PWD . The conduct the subject of the charges in PWD is set out at [7]-[33]. In my opinion, it, too, displays significant differences in the level of gravity. A number of charges alleged rubbing and touching; the most serious alleged mutual fellatio. Yet that does not appear to have been the basis of the argument put on appeal, which concentrated, rather, upon the nature of the sexual activity alleged rather than its relative seriousness: see [54]. 198There is no substance in the complaint that the decision in Barton , rather than that in PWD , ought to have dictated the result. 199In the present case, although the precise nature of the conduct alleged by SM and JC was different (in particular, the spitting incident), it does not display a glaring difference in seriousness. As was argued on behalf of the applicant in support of his alternative contention (that the trial of MB's allegations ought to be separated from the trial of the allegations of SM and JC), the conduct of which MB accuses the applicant is of a markedly more serious order - masturbation and fellatio. 200On one reading of paragraph [11] of Barton , Grove J may be taken as suggesting that acts of "the lesser degree of seriousness" can, if they meet the s 101 test, establish probative value, but (by implication from omission) acts of a greater degree of seriousness do not go to establish proof of acts of a lesser degree of seriousness. I do not believe that his Honour intended to draw that distinction. Evidence of more serious conduct may support allegations of less serious conduct just as evidence of less serious conduct may support allegations of more serious conduct. Each case will depend upon its own facts; the probative value of the evidence in each case will be determined after assessment by the trial judge. 201In my opinion Bozic DCJ correctly weighed up the competing considerations, and reached the view that the evidence of SM, JC and MB could have interconnecting significant probative value. 202Similarly, his Honour correctly applied s 101. This was a classic balancing exercise (see R v O'Keefe [2009] NSWCCA 121 at 46 per Howie J). 203There is no misapplication of principle. There is no basis for concluding that Bozic DCJ was influenced by extraneous or irrelevant matters, mistook the facts, or failed to take into account any material consideration. The decision is not unreasonable or plainly unjust. I appreciate that, with respect to the applicant's alternative position (that the trial of MB's allegations be separated from the trial of the allegations of SM and JC), the gravity of the allegations and of the resultant charges, the case is potentially stronger. However, Bozic DCJ took into account all relevant circumstances, and his decision is one that was entirely open to him. 204I turn now to consider the position if I were exercising an independent consideration of the admissibility of the evidence. I see no reason to come to any different decision. In my opinion, as I have set out above, the evidence showing that the applicant had sexual attraction to one adolescent boy had probative value in relation to allegations by each of two other adolescent boys of sexual misconduct towards them. I am satisfied that that evidence that probative value is significant. I am satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have. I accept that there will be some prejudicial effect. It is not unfair prejudice, and is perfectly capable of being ameliorated by appropriate directions which the trial judge will give to the jury. 205Since initially preparing my reasons, I have been able to read in draft the judgment of the Chief Justice. I regret that I am unable to agree that the test that applies where the review takes place under s 5F is different from that which applies on appeal after conviction. In my opinion, any difference in approach ought to be reflected in the decision to grant or refuse leave under s 5F(3). Once leave is granted, the Court has before it an appeal in the usual way. 206That may have potential consequences for those who seek leave to appeal under s 5F. In my opinion a real question exists as to whether, if leave is granted, and the appeal dismissed, that issue is foreclosed, in the event of conviction, from any appeal against that conviction. That is because the very issue has been determined. That is not to say that, if circumstances change, and the evidence elicited is not that which was anticipated at the time of the interlocutory ruling, and the basis on which that judgment was made, the applicant would be deprived of any appellate review. But the appellate review would be on the basis of a miscarriage of justice (see s 6 Criminal Appeal Act ) and not on the basis of this Court reconsidering its own decision. It would be invidious if a second bench of this Court were to rule upon the correctness of a decision of an earlier bench.

Should leave to appeal be granted? 207It has not been the practice of this Court to apply a two-step process to applications for leave to appeal under s 5F of the Criminal Appeal Act . As long ago as 1989 Gleeson CJ suggested that it may be appropriate to consider the adoption of such a procedure: see R v Matovski (1989) 15 NSWLR 720 at 721-722. This is a case in which, in my opinion, the question has real significance. In part, that is because the real issue litigated on the application is a question concerning the admissibility of evidence, a question in which this Court will not ordinarily engage on such an application: see R v Groves (NSWCCA, 2 April 1990, unreported). In part, it is because insufficient basis has been shown to question the correctness of the ruling. 208Because of the importance of the question concerning the approach to be taken in judicial review of a decision to admit (or, indeed, reject) evidence tendered under s 97, and for that reason only, I would grant leave to appeal. It should not be thought that, in future cases, where the substance of an application to this Court under s 5F(3) is an appeal against an evidentiary ruling, leave will readily be granted. 209I propose that leave to appeal be granted but that the appeal be dismissed. 210KIRBY J : I have had the advantage of reading the reasons for judgment in draft of the Chief Justice, the President and Simpson J. I agree with the orders proposed by their Honours. I also agree with the analysis of the primary Judge's reasons in the judgment of Simpson J and her Honour's conclusions as to the absence of error displayed by such reasons. In addition I respectfully agree with the comments made by the Chief Justice and Allsop P concerning the nature of the appeal. 211SCHMIDT J : I have had the advantage of reading the judgments of Spigelman CJ, Allsop P and Simpson J in draft. I agree with the orders which they propose. I, too, agree with Simpson J's analysis and the conclusions on which the proposed orders rest . It is unnecessary that I add to the reasons which have been given for those conclusions. 212As to the possibility of another appeal after conviction, I wish to make only this observation. The trial judge's ruling rested on views reached pursuant to ss 97(1)(b) and 101 of the Evidence Act as to the probative value of anticipated evidence. As the Chief Justice observes, that is a ruling which may be revisited during the course of the trial, as the evidence unfolds. Any post conviction appeal brought under ss 5(1) and 6(1) of the Criminal Appeal Act , if that results, would arise to be determined on the basis of the evidence received at trial. It is unnecessary to deal with that possibility on this appeal, other than to observe that should the same issue as to admissibility of evidence be raised in a post conviction appeal, as has already been determined in a s 5F appeal, considerations of the kind discussed in Rogers v R [1994] HCA 42; (1994) 181 CLR 251; (1994) 123 ALR 417; (1994) 68 ALJR 688; (1994) 74 A Crim R 462 as to issue estoppel would appear to arise for consideration.

Amendments 11 July 2012 - corrected date of decision under appeal Amended paragraphs: coversheet 01 February 2013 - corrected date of decision under appeal Amended paragraphs: coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 February 2013