DPP v Wilson

1. The respondent has been charged with indecently assaulting two sisters, LO and FO (the complainants). The Director of Public Prosecutions (the Director) seeks to rely on the evidence of each complainant as tendency evidence in support of proof of the counts on the indictment relating to the other complainant. The prosecution submits that because of the cross-admissibility of this evidence, the charges relating to the two sisters should be tried together.

2. In a pretrial judgment delivered on 5 May 2023, Berman AJ held that the prosecution was permitted to adduce tendency evidence in the respondent’s trial: DPP v Wilson (a pseudonym) [2023] ACTSC 100 (Wilson (No 1)).

3. The respondent was subsequently tried on an indictment containing counts relating to both complainants before a jury of twelve, presided over by McCallum CJ, which commenced on 26 September 2023. In that trial, her Honour directed the jury that they could engage in tendency reasoning with respect to the evidence of both complainants. The jury were unable to reach a unanimous agreement with respect to any of the counts on the indictment, and were discharged on 10 October 2023.

4. During the course of the trial, McCallum CJ granted the prosecution leave to amend the dates specified in a number of counts in the indictment. As a result of the amendments, the dates pleaded incorporated periods where both LO (the younger sister) and the respondent were younger than was originally averred.

5. Following the discharge of the jury, the Director determined that the respondent should be retried. Prior to the commencement of the retrial, the respondent made an application to revisit Berman AJ’s orders, contending that this course was justified by the amendment of the indictment.

6. In a judgment delivered on 19 September 2024, Taylor J (the primary judge) acceded to this application, holding that the prosecution was not permitted to adduce the tendency evidence relating to LO in support of the counts on the indictment relating to FO. Her Honour accordingly directed that the indictment be severed, with the counts relating to LO to be tried separately to those relating to FO.

7. The Director appeals against this decision. As the decision is interlocutory in character, the Director requires leave to appeal: s 37E(4) of the Supreme Court Act 1933 (ACT). On 31 January 2025, Mossop J granted leave to appeal on two grounds, namely that: (a) The primary judge erred in concluding that it was in the interests of justice to revisit the earlier pre-trial ruling made by Berman AJ on 5 May 2023; and (b) Her Honour erred in concluding that the presumption of significant probative value of the tendency evidence was displaced.

8. For the reasons outlined below, the appeal should be dismissed.

Background

The allegations The original indictment

9. By an indictment dated 12 January 2022, the respondent was charged with nine counts of sexual offending against two sisters – LO (born in 2003) and FO (born in 1996). The respondent was born on 15 February 1993 and turned 18 on 15 February 2011.

10. Counts 1 to 3 on the indictment alleged acts of indecency against LO (three counts commit act of indecency on a person under the age of 10 years contrary to Crimes Act 1900 (ACT) s 61(1)). Counts 4 to 9 alleged acts of indecency against FO (one count commit act of indecency on a person under the age of 16 years contrary to Crimes Act s 61(2), four count commit act of indecency without consent contrary to Crimes Act s 60(1), one count assault with intent to commit act of indecency contrary to Crimes Act s 59).

The allegations relating to LO

11. The respondent’s family and LO and FO’s families were close friends. The sisters would visit the respondent’s home from time to time and he also visited their home from time to time.

12. Counts 1 and 2 on the indictment relate to an alleged incident which occurred when LO went with other members of her family to the respondent’s family home. The prosecution alleges that at one point in the evening, LO went to the front room of the home with the respondent and her brother to watch television. The respondent asked LO to sit on his lap. She did so. After a while, the respondent asked if he could tickle LO. LO agreed.

13. The respondent then rubbed LO’s arms and legs with his hands and began kissing LO’s arms and her cheek. The respondent asked LO to kiss him on the cheek. As she went to do that, the respondent turned his head so that LO ended up kissing him on the mouth. The respondent placed a hand on the back of LO’s head during that kiss. This alleged conduct is the subject of Count 1 of the indictment.

14. The prosecution alleges that after kissing LO, the respondent then moved his hands inside LO’s shirt and placed his hands on her chest and stomach. The respondent then moved his hand inside LO’s leggings. The respondent then alternated between having his hands on LO and inside her underwear, touching her genitals. The respondent did not penetrate LO. This lasted about 5 to 10 minutes. This alleged conduct is the subject of Count 2 on the indictment.

15. Count 3 relates to a separate incident, which is also alleged to have occurred at the respondent’s home. On this occasion, LO, her brother and the respondent again went to the front room to watch television. LO’s brother played video games, sitting on a stool close to the TV. The respondent and LO sat on one of the couches at the back of the room. The respondent asked LO if he could tickle her. She agreed. The respondent picked up one of LO’s arms and began kissing it. He started kissing her further up her arm. LO’s brother turned around when the respondent’s kisses reached LO’s neck. The respondent said something to the effect of that he was “blowing air into a balloon”. LO’s brother then turned back to face the television.

16. In the original indictment, these two incidents are alleged to have occurred between February 2011 and January 2013. At this time, LO was between 7 and 9 years old, and the respondent was 18 or 19 years old.

The allegations relating to FO

17. FO is seven years and six months older than LO. The complaints relating to FO were alleged to have occurred when FO was between 14 years and 22 years and the respondent was between 17 years and 25 years. Chronologically, the allegations are as follows.

18. Between 2010 and 2012, it is alleged that the respondent would make comments to FO about the size of her breasts and the attractiveness of her bottom whilst the respondent was babysitting FO and her siblings during the school holidays. It is also alleged that between 2008 and 14 February 2014, when FO was aged between 12 and 17 years, and the respondent was aged between 15 and 20 years, the respondent pulled FO into his room. It is alleged that on one or two occasions, the respondent pushed FO onto his bed and ran his hands up and down her back (uncharged conduct).

19. Between 14 February 2011 and 15 February 2012, when FO was 15 years old and the respondent was between 17 and 18 years old, the respondent came to FO’s house, and said that he wanted to borrow FO’s brother’s games console. It is alleged that the respondent pulled the complainant into the front lounge room of her house, and that he held her down and kissed her neck a number of times. The respondent is also alleged to have rubbed FO’s genitals over her clothes. FO could feel that the respondent had an erection (count 4). The respondent then tried to pull FO to his car, but stopped when FO’s brother came outside and asked what they were doing.

20. Between 14 February 2011 and 15 February 2013, when FO was 15 or 16 years old and the respondent was 18 or 19 years old, the respondent touched FO’s bottom a number of times whilst they were at a family friend’s party. FO repeatedly asked the respondent to stop (count 5).

21. The next charges concerning FO are alleged to have occurred between 14 February 2012 and 15 February 2014, when FO was 16 or 17 years old and was at the respondent’s family home. As the complainant walked to the bathroom, the respondent grabbed her and pulled her into his room. He pushed FO onto his bed and kissed her (counts 6 and 7).

22. Between 14 February 2012 and 15 February 2015, when FO was around 17 years old, she, the respondent, the respondent’s sister, and the respondent’s sister’s boyfriend were watching a movie in the theatre room of the respondent’s family home. The respondent suggested to his sister and her boyfriend that they might wish to leave the room. After they did so, the respondent picked FO up and put her down on the couch, holding her so that she could not move. He then kissed her neck and moved his hand between FO’s inner thighs and rubbed her genitals over the top of her clothes (count 8). FO told the respondent that she was uncomfortable and that she did not like what he was doing. The respondent told FO to be quiet. This incident ended when the respondent’s sister and boyfriend returned to the room.

23. The final count on the indictment was alleged to have occurred in 2017, when FO was 21 years old. She and the respondent went to the respondent’s sister’s wedding, which was held overseas. The respondent flirted with FO at the wedding, but FO told the respondent that she was not interested in him (uncharged conduct). After the wedding, a reception was held at the respondent’s family home in Canberra. The respondent’s mother became intoxicated, and FO offered to take her to her bedroom. After FO left the bedroom, she saw the respondent, who was standing outside the room. She spoke to the respondent. The respondent then pushed FO up against the wall, grabbed her breasts and squeezed them (Count 9).

The Tendency Notice

24. On 12 April 2023, the prosecution filed an Amended Tendency Notice. In that Notice, the prosecution set out a description of each of the incidents that are the subject of the counts on the indictment, as well as the uncharged conduct referred to at [18], [20] and [21] above.

25. Counts 1 and 2 were particularised in the Amended Tendency Notice as Incident 1; Count 3 was particularised as Incident 2; the uncharged conduct relating to the appellant making comments on FO’s appearance summarised at [18] above was particularised as Incident 3; Counts 4 and 5 were particularised as Incidents 4 and 5 respectively; Counts 6 and 7 were particularised as Incident 6; the uncharged conduct relating to the appellant pulling FO into his bedroom summarised at [20] above was particularised as Incident 7; Count 8 was particularised as Incident 8; the uncharged conduct summarised at [21] above was particularised as Incident 9; and Count 9 was particularised as Incident 10.

26. The Amended Tendency Notice particularised the tendencies to be relied upon as follows: That the accused had a tendency to act in particular ways, namely: 1. To act upon his sexual interest in children (Incidents 1 – 8); 2. To act upon his sexual interest in LO (Incidents 1 – 2); 3. To act upon his sexual interest in FO (Incidents 3 – 10); 4. To act in opportunistic ways at his home to act on his sexual interests [sic] (Incidents 1 – 3; 5 – 8; 10). That the accused had a tendency to have a particular states of mind [sic], namely: 1. To have a sexual interest in children (Incidents 1 – 8); 2. To have a sexual interest in LO (Incidents 1 – 2); 3. To have a sexual interest in FO (Incidents 3 – 10).

27. The proceedings below and on appeal proceeded on the basis that the only particulars upon which the evidence of LO and FO were said to be cross-admissible were particulars 1 and 4 (that is, “to have a sexual interest in children”, “to act upon his sexual interest in children, and “to act in opportunistic ways at his home to act on his sexual interests”). Particulars 2 and 3 (“to act upon his sexual interest in LO”, “to act upon his sexual interest in FO”, “to have a sexual interest in LO” and “to have a sexual interest in LO”) were only sought to be employed in support of the counts relating to that individual complainant. The decision of Berman AJ admitting the tendency evidence

28. Acting Justice Berman heard the prosecution’s application to adduce tendency evidence on 24 April 2023.

29. The respondent did not object to the tendency evidence sought to be relied on by the prosecution insofar as it related to each individual complainant. That is, there was no dispute that the evidence relating to the counts relating to LO (counts 1, 2 and 3) was cross-admissible, and the evidence relating to FO (the uncharged acts and counts 4 – 9) was cross-admissible. The respondent’s objection was to the tendencies relating to one sister being led in proof of the acts against the other, and vice versa. If accepted, the necessary consequence would be that the counts relating to LO would need to be severed from the counts relating to FO.

30. The respondent accepted that because LO and FO were under the age of 18 years at the time of the alleged acts, s 97A of the Evidence Act 2011 (ACT) applied, and hence that there was a presumption that the proposed tendency evidence had significant probative value: s 97A(2) of the Evidence Act. However, the respondent submitted that there were exceptional circumstances which justified the taking into account of a number of matters raised in s 97A(5), and that, taking those matters into account, the presumption that the tendency evidence had significant probative value was rebutted.

31. In a judgment delivered on 5 May 2023, Berman AJ held that the tendency evidence was cross-admissible with respect to each complainant: DPP v Wilson (No 1) [2023] ACTSC 100 (Wilson (No 1)). In so holding, his Honour accepted that there were “exceptional circumstances” permitting consideration of a number of the s 97A(5) factors: Wilson (No 1) at [36]. In particular, his Honour explained that there is a “very big difference” between an 18 year old indecently assaulting a 7 or 8 year old girl, and a 17 year old making sexualised comments to a 14 year old girl and then committing acts of indecency upon her when she was 15 years old, and he was 18 years old: whilst the former has paedophilic qualities, the latter may be seen as “an adolescent male acting on a sexual attraction to an age-appropriate friend”: Wilson (No 1) at [35].

32. Having found that the circumstances were exceptional, his Honour took into account the factors referred to in ss 97A(5)(b), (c) and (d) of the Evidence Act: Wilson (No 1) at [36]. However, after taking these matters into account, his Honour was not satisfied that the presumption of significant probative value had been rebutted: Wilson (No 1) at [55]. In reaching this conclusion, his Honour noted that: (i) The two complainants “are sisters, and, obviously, part of the same family which has a friendly relationship with the accused’s family”: Wilson (No 1) at [41]. His Honour continued, “[t]he demonstrated tendency is much more than a tendency relating to children or young women generally. It is a tendency to have a sexual interest in girls from a particular family and to act on that sexual interest from time to time”: Wilson (No 1) at [41]. (ii) Apart from one charge (count 5, which allegedly occurred at a party of a family friend), all of the alleged offending occurred either in the home of the accused or the home of the complainants: Wilson (No 1) at [42]; (iii) All of the offences are alleged to have occurred when other people, particularly family members were nearby: Wilson (No 1) at [43]. His Honour considered that this aspect of the complaints was “particularly probative”, noting that this feature of alleged offending was also considered to be significant by the High Court in Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [43]; and (iv) None of the allegations involved any form of penetrative sexual activity: Wilson (No 1) at [44]. Further, neither complainant alleges that she was forced, or even encouraged, to touch the respondent’s genitals: Wilson (No 1) at [45].

33. His Honour accepted that there was a prospect of the jury having an emotional or irrational response to LO’s evidence, but considered that “any emotional reaction on the part of a juror in hearing the allegations made by LO is not likely to be so extreme that appropriate directions [would be] unable to achieve an unemotional consideration of the evidence by that juror”: Wilson (No 1) at [58] – [65]. His Honour accordingly rejected the respondent’s contention that the evidence should be excluded under s 101 of the Evidence Act.

34. His Honour ordered as follows: Leave is granted to file the amended notice of intention to adduce tendency evidence dated 12 April 2023. The prosecution be permitted to adduce tendency evidence as notified in the amended notice of intention to adduce tendency evidence dated 12 April 2023.

35. The Amended Tendency Notice referred to in his Honour’s orders is relevantly extracted at [26] above.

The trial before McCallum CJ

36. The respondent’s trial commenced before McCallum CJ and a jury of 12 on 26 September 2023. The respondent pleaded not guilty to each count on the indictment. His case was that the alleged offending did not occur.

37. The original indictment upon which the respondent was arraigned before the jury particularised the offences against LO as occurring “between 15 February 2011 and 1 January 2013”. LO was aged between 7 and 9 years and the appellant was aged between 18 and 19 years at this time.

38. On 3 October 2023 (day 5 of the trial), following LO’s cross-examination, the prosecutor made an application to amend counts 1 – 3 on the indictment relating to LO. The amendment was to expand the date range of each alleged offence from “between 15 February 2011 and 1 January 2013” (as originally particularised) to “between 1 January 2009 and 1 January 2013”. The prosecutor explained that the amendment was sought because, in cross-examination, LO had accepted that counts 1 – 3 could have occurred at any time between when she was in kindergarten and year 2, although LO maintained that she believed that she was between six or seven.

39. In opposing the proposed amendment, counsel for the respondent referred to the earlier tendency ruling, but did not seek to revisit the ruling. Chief Justice McCallum granted the prosecution leave to amend the tendency notice. The prosecutor did not seek to amend the tendency notice to take account of the amended dates in the indictment.

40. In his closing address to the jury, the prosecutor described the tendency evidence in the following terms: An important part of this case is what is called tendency evidence. The accused is charged with a number of offences. You have heard evidence about them from both sisters and the people that they later told growing up. The Crown says that what the accused did by indecently touching them demonstrated a tendency to have sexual interest in the sisters from the family and to act on that sexual interest from time to time.

41. In describing the tendency evidence, the prosecutor told the jury: You probably will have noticed the similarity in the circumstances in which the conduct occurred. Where it occurred mostly either at the accused’s home or at the home of the sisters during their family gatherings. And significantly, both girls describe occasions of being indecently assaulted by the accused when other people, particularly family members were nearby. Notwithstanding the risk of detection, there was that sort of brazenness in how he dealt with both girls … Her Honour will tell you that if you’re satisfied beyond a reasonable doubt that any of the charged incidents occurred and that you can infer from that incident that the accused had a tendency to have a sexual interest in sisters from the family and act on it from time to time, then you can use that fact in determining whether the accused committed each of the other charges that you will need to consider on the indictment. That is, you can use the fact that he indecently assaulted one of the sisters to corroborate or make it significantly more likely that he indecently assaulted the other in the way that they have told us. Can I suggest that it’s more understandable that the accused committed each of the offences in the way that LO and FO told us once you know that he was sexually attracted to them and used them to obtain that sort of fleeting sexual gratification.

42. No reference was otherwise made by the prosecutor to any of the tendencies described in the Amended Tendency Notice.

43. At the conclusion of the prosecutor’s address, the respondent’s counsel indicated that he wished to “note for the record that there’s been a change in the way the tendency evidence was put”. However, he said that he did not “want to say anything more about it”. In response, McCallum CJ invited the respondent’s counsel to make further submissions on this issue, emphasising “if it’s likely to create an unfairness, I want to deal with it now, not in the Court of Appeal”.

44. The respondent’s counsel then referred to the tendency notice (extracted above at [26]). Her Honour responded: [I]f you go to the end of Berman AJ’s judgment, I rather took his Honour to reject that [a tendency to have a general sexual interest in children] implicitly in paragraph 64. You said there was a real danger that the jury would improperly use the evidence to find he has a sexual interest in children more broadly. I’ve picked up on that. I’ve said its not alleged to be a tendency to have a sexual interest in children more broadly. It’s focused on the sisters which was the way the prosecutor put it. So I thought he narrowed the tendency rather than broadening it. I assumed that was in relation to this to the remarks of Berman AJ.

45. Her Honour then read her proposed direction to counsel. That direction noted that the prosecution did not rely on a general tendency to have a sexual interest in children generally, and emphasised that the tendency alleged was to “have a sexual interest in girls from a particular family”.

46. After hearing the proposed direction, counsel for the respondent indicated that his concern was with the change in formulation from “fleeting acts” to “obtain sexual gratification”. The respondent’s counsel pointed out that “none of [this] was particularised”. However, counsel for the respondent continued… I take your Honour’s point that what my learned friend might have done is narrowed it in the way that his Honour, Berman AJ, has done in his decision. I don’t want to say anything more about it. I think the way your Honour has – what your Honour has read out, I don’t take issue with that…

47. No further submissions were made concerning the proposed direction.

48. In her summing up, McCallum CJ directed the jury in the terms which she had proposed. In particular, her Honour directed: Members of the jury. Part of the Crown case is that the accused had a tendency to have a sexual interest in girls from a particular family, that is KO and FO, and to act on that interest from time to time by engaging in opportunistic or fleeting acts of indecency. The acts are said to have been opportunistic because they were committed in the family home or a family home either of the accused or the complainant or possibly another family in the presence of a family member or when other family members were nearby in the house. The Crown says you would be satisfied the accused had this tendency because of his conduct in the counts on the indictment and also other conduct. (emphasis added)

49. After briefly referring to the evidence of the uncharged acts and the counts on the indictment, her Honour continued: Be careful about this; however, it’s not alleged that the accused had a sexual interest in children more broadly, the allegation concerns LO and FO, sisters whom the accused saw regularly in the context of family gatherings. Obviously, there’s a significant difference between having a sexual interest in a prepubescent girl as LO was at the time, she alleges she was touched and the alleged offending against FO who was older and closer in age to the accused. (emphasis added)

50. The jury retired to consider their verdicts on 9 October 2023. On 10 October 2023, the jury were discharged, having been unable to reach unanimous verdicts with respect to any of the counts on the indictment.

The primary judge’s decision excluding the tendency evidence

51. Following the discharge of the jury, the then Acting Director determined to retry the respondent on the indictment as amended by McCallum CJ in the first trial.

52. On 30 August 2024, the respondent filed an application in proceeding seeking, amongst other rulings, leave to revisit Berman AJ’s tendency ruling on the ground that the amendment to the indictment had materially altered the basis upon which that ruling was made.

53. In a judgment delivered on 19 September 2024, the primary judge found that it was in the interests of justice to revisit Berman AJ’s tendency decision admitting the tendency evidence.

54. Like Berman AJ, her Honour considered that there were exceptional circumstances which permitted consideration of a number of the matters proscribed by s 97A(5) of the Evidence Act: Wilson (No 2) at [48]. However, in contrast to Berman AJ, her Honour held that the presumption in s 97A had been displaced, and that the tendency evidence did not have significant probative value: Wilson (No 2) at [84].

55. Central to her Honour’s conclusion was the importance of the age of the respondent. Her Honour noted that, on the amended indictment, the respondent was between 15 and 18 years of age at the time of the alleged offences, whereas Berman AJ’s decision had been predicated on a prosecution case that the respondent was over the age of 18 at the time of each of the alleged offences: Wilson (No 2) at [61].

56. The primary judge considered that because of this youth, the respondent’s behaviour could not necessarily be explained by reference to patterns of behaviour or fixed tendencies, referring to R v Sean (a pseudonym) (No 2) [2023] ACTSC 132 and the dissenting judgment of Adams J in BC v R [2015] NSWCCA 327; 257 A Crim R 340: Wilson (No 2) at [65]–[66]; [68]–[70]. Whilst acknowledging that it is possible for conduct engaged in by an accused young person to be adduced as tendency evidence, her Honour cautioned that an alleged tendency in a young person should be “carefully scrutinised because of what can be accepted as to the significance of the developing brain and the limited opportunity a young person has to develop tendencies”: Wilson (No 2) at [70].

57. The primary judge also observed that the ages of the sisters at the time when the acts allegedly occurred were “markedly different”, with the offences against LO occurring at a time when LO was, “on any view, prepubescent”, such that the conduct evinced an “unequivocally paedophilic” interest: Wilson (No 2) at [49]. In contrast, her Honour observed that the offending against FO commenced when FO was 14 years old (the uncharged acts) and continued until she was 21 years old, which was an “age appropriate” interest: Wilson (No 2) at [60].

58. The primary judge accepted that there was “undoubtedly some similarity” between the incidents, as they occurred “for the most part in the accused’s home, there are other people present in the home and the complainants [were] members of the same family to whom the accused had access”: Wilson (No 2) at [57].

59. However, her Honour took into account that there were also differences in the conduct alleged. First, the allegations relating to LO began “playfully”, but the incidents related to FO had an “air of menace and/or control about them): Wilson (No 2) at [58] – [59]. Second, the relationship between LO and the respondent was akin to an “older brother”, while the relationship with FO was more in keeping with “friendship”: Wilson (No 2) at [62]. Third, her Honour was also of the view that the conduct alleged with respect to LO did not reflect the same level of “‘disinhibited disregard’ of risk” as that displayed with respect to FO: Wilson (No 2) at [75].

60. Finally, her Honour also observed that the conduct towards FO had proceeded over an extended period of time, whereas the conduct against LO involved only two occasions occurring in “very quick succession”, with “no evidence that the ‘unusual’ sexual interest, being paedophilic in nature, has ever been repeated”: Wilson (No 2) at [77] – [79].

61. After referring to the generality of the tendency alleged (namely, “a tendency to have a sexual interest in children” and to “act on that interest opportunistically”), her Honour concluded (at [82] – [85]): Returning to the two separate inferences employed in the tendency reasoning, the combination of the relevant factors I have identified in this matter, warrant hesitation about attributing the conduct against LO to a tendency of the 15 or 16 year old accused to have a sexual interest in children and in LO, and to act on that sexual interest opportunistically. Further, I am not satisfied that the evidence about the conduct directed toward LO makes it more likely that the conduct directed toward FO occurred. I am satisfied that there are sufficient grounds to rebut the presumption of significant probative value. Accordingly, the prosecution should not be permitted to adduce tendency evidence with respect to LO in the case against the accused with respect to FO. This does not disturb the prosecution’s reliance on tendency reasoning with respect to FO.

62. The primary judge accordingly ordered that the prosecution “is not permitted to adduce the tendency evidence of Counts 1 – 3 in support of Counts 4 – 9 on the indictment”: Wilson (No 2) at [116(1)]. Her Honour also directed that the indictment be severed, with Counts 1 – 3 (that is, the counts relating to LO) to be tried separately to Counts 4 – 9 (that is, the counts relating to FO): Wilson (No 2) at [116(2)].

63. As Mossop J observed in the leave decision, these orders only addressed the use of the evidence concerning LO in support of the counts relating to FO: DPP v Wilson (a pseudonym) [2025] ACTCA 4 at [14]. The orders are silent on the question as to whether the evidence concerning FO may be used in support of the counts concerning LO.

64. Other than [85] extracted at [61] above, and an earlier reference to the respondent not seeking to “revisit the prosecution’s reliance on tendency evidence for Counts 4 to 9 in relation only to FO” (Wilson (No 2) at [13]), there was no explanation for this differentiation. These passages tend to suggest that her Honour may have understood the respondent’s challenge to the tendency evidence to be limited to the use of LO’s evidence in support of the counts relating to FO, and not to extend to the use of FO’s evidence in support of the counts relating to LO.

Section 97A of the Evidence Act

65. Other than count 9 (which was alleged to have occurred when FO was between 21 and 22 years), each count on the indictment and each of the uncharged acts sought to be relied upon as tendency evidence concerned sexual offending that was alleged to have occurred when the complainants were under 18 years of age. In these circumstances, it was common ground between the parties that s 97A of the Evidence Act applied to the prosecution’s application to adduce the tendency evidence.

66. Section 97A of the Evidence Act provides as follows: 97A Admissibility of tendency evidence in proceedings involving child sexual offences (1) This section applies in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue. (2) It is presumed that the following tendency evidence about the defendant will have significant probative value for section 97 (1) (b) and section 101 (2): (a) tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest); (b) tendency evidence about the defendant acting on a sexual interest the defendant has or had in children. (3) Subsection (2) applies whether or not the sexual interest or act to which the tendency evidence relates was directed at a complainant in the proceeding, or any other child or children generally. (4) Despite subsection (2), the court may determine that the tendency evidence does not have significant probative value if it is satisfied that there are sufficient grounds to do so. (5) The following matters (whether considered individually or in combination) are not to be taken into account when determining whether there are sufficient grounds for subsection (4) unless the court considers there are exceptional circumstances in relation to those matters (whether considered individually or in combination) to warrant taking them into account: (a) the sexual interest or act to which the tendency evidence relates (the tendency sexual interest or act) is different from the sexual interest or act alleged in the proceeding (the alleged sexual interest or act); (b) the circumstances in which the tendency sexual interest or act occurred are different from circumstances in which the alleged sexual interest or act occurred; (c) the personal characteristics of the subject of the tendency sexual interest or act (for example, the subject’s age, sex or gender) are different to those of the subject of the alleged sexual interest or act; (d) the relationship between the defendant and the subject of the tendency sexual interest or act is different from the relationship between the defendant and the subject of the alleged sexual interest or act; (e) the period of time between the occurrence of the tendency sexual interest or act and the occurrence of the alleged sexual interest or act; (f) the tendency sexual interest or act and alleged sexual interest or act do not share distinctive or unusual features; (g) the level of generality of the tendency to which the tendency evidence relates. (6) In this section: child sexual offence— (a) means each of the following offences (however described and regardless of when it occurred): (i) an offence against, or arising under, a territory law involving sexual intercourse with, or any other sexual offence against, a person who was a child at the time of the offence; (ii) an offence against, or arising under, a territory law involving an unlawful sexual act with, or directed towards, a person who was a child at the time of the offence; (iii) an offence against, or arising under, a law of the Commonwealth, a State or a foreign country that, if committed in the Territory, would have been an offence of a kind mentioned in subparagraph (i) or (ii); but Note State includes the Northern Territory (see Legislation Act, dict, pt 1). (b) does not include conduct of a person that has ceased to be an offence since the time when the person engaged in the conduct.

67. Section 97A “effects a very significant departure from the previous state of the law”: R v Clarke [2023] NSWCCA 123; 111 NSWLR 501 at [37]. As the New South Wales Court of Criminal Appeal observed in Clarke at [37]: The features described in subs 5(a) – (f), which the courts are now forbidden from taking into account in the assessment of whether putative tendency evidence has significant probative value, comprise substantially all of the criteria that, under the pre-existing law, were regarded as the basis in logic and common sense for comparing the sexual acts said to prove the tendency with the sexual acts said to prove the tendency with the sexual acts charged.

68. In Davidson (a pseudonym) v The King [2024] NSWCCA 60 at [46], Adamson JA (with who Stern JA and Wright J agreed) also noted that “[t]he threshold of exceptional circumstances in relation to the consideration of these matters was chosen intentionally in order to set a high bar”.

69. Section 97A of the ACT Evidence Act (which is in identical terms to the New South Wales provision) was enacted for identical reasons. The introduction of s 97A into the Evidence Act 2011 (ACT) followed an agreement by the Uniform Evidence Law Council of Attorney General members to implement the Model Bill, which in turn flowed from recommendations 44 to 51 of the Royal Commission into Institutional Responses to Child Sexual Abuse in its Criminal Justice Report. That report expressly recommended that changes be made in relation to the admissibility of tendency evidence “to facilitate greater admissibility and cross-admissibility of tendency and coincidence evidence and joint trials”: Royal Commission into Institutional Responses to Child Sexual Abuse (Criminal Justice Report, Executive Summary and Parts I – II, 2017) at 65 – 75; Council of Australian Attorneys-General, Communique (1 December 2017).

70. The legislature has not provided any guidance as to the criteria by which “exceptional circumstances” may be discerned: Clarke at [36]. However, it is clear from the language of s 97A that Parliament intended “that evidence that an accused person has exhibited a sexual interest in children, or has acted on such a sexual interest, should be deemed probative of any child sexual offence with which the person may be charged, in a very broad field of circumstances”: Clarke at [38]. Determination

Standard of review

71. The Director has been granted leave to appeal against two orders of the primary judge: first, her Honour’s order that the prosecution is not permitted to adduce tendency evidence of Counts 1 – 3 in support of Counts 4 – 9 of the indictment and second, her Honour’s order that the indictment be severed, with Counts 1 – 3 to be tried separately from Counts 4 – 9.

72. As to the appeal against the first order (the tendency decision), it is now well-established that the correctness standard applies to an appeal against a decision of a trial judge which admits, or refuses to admit, tendency evidence pursuant to ss 97 and 101 of the Evidence Act, whether or not the appeal is against a final conviction, or an interlocutory decision or order: R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 at [61];Clarke at [7] – [14].

73. However, Mr Williamson SC, who appeared for the respondent, submitted that the position is different in an appeal such as the present, which alleges error in the anterior decision made by a trial judge under s 97A of the Evidence Act. In particular, Mr Williamson SC submitted that the inclusion of the word “may” in s 97A(4) “clearly connotes a discretion”, such that the Director must demonstrate House v The King error in the decision appealed from.

74. We do not agree. Decisions to admit or to exclude tendency evidence are made under ss 97 and/or 101 of the Evidence Act. Section 97A is merely a presumption that feeds into each decision. There is no indication in the text, purpose or history of s 97A which supports the proposition that the enactment of that provision was intended to change the standard of review on an appeal concerning the admissibility of evidence as tendency evidence.

75. Contrary to Mr Williamson SC’s submissions, it matters not that the appeal grounds specified in the Director’s appeal are directed to the anterior s 97A decision. The orders appealed from under s 37E of the Supreme Court Act 1933 (ACT) are the orders which excluded the tendency evidence, and which severed the counts on the indictment relating to LO from those relating to FO.

76. Accordingly, it follows that the Court is to determine for itself whether the tendency evidence was admissible: Davidson at [31]. Although the reasons of the primary judge may be taken into account in this assessment, the Director “need not show any particular error, save as to outcome”: Davidson at [31].

77. As to the appeal against the second order, this appeal, like the proceedings below, has been conducted on the basis that the outcome of the appeal against the severance decision should follow the outcome of the appeal against the tendency decision. That is, if the appeal against the tendency decision is allowed, the appeal against the order severing the trial should also be allowed; whereas if the appeal against the tendency decision is dismissed, the appeal against the order severing the trial should also be dismissed.

The Director’s first ground of appeal: Did the primary judge err in finding that it was in the interests of justice to revisit Berman AJ’s tendency decision?

78. In her first ground of appeal, the Director contended that the primary judge erred in finding that it was in the interests of justice to revisit Berman AJ’s tendency decision: see s 76(3) of the Court Procedures Act 2004 (ACT).

79. In the Director’s written submissions, this ground of appeal was advanced as an independent ground of appeal to the challenge to the primary judge’s determination relating to the admissibility of the tendency evidence. However, in her oral submissions, the Director appeared to accept that the first ground of appeal did not relevantly add to the second ground of appeal, and that this Court would not allow the appeal unless the second ground of appeal were upheld.

80. It is unclear whether the Director’s ultimate contention in the first ground of appeal was that the primary judge should not have entertained the respondent’s application to revisit Berman AJ’s tendency decision. If this submission were advanced and maintained, we would reject it.

81. In her written submissions, the Director submitted that the expansion of the date range in the amended indictment “did not make any change to the substance of the allegations against the respondent”, as there “remained a continuum of conduct” which demonstrated a “tendency on the part of the respondent which was significantly probative”. In particular, the Director submitted that the “substance” of the allegations did not alter because LO had provided an interview in which she stated (contrary to the indictment) that she might have been as young as 6 years of age at the time of the offending, so that the amendment only reduced the date of the alleged offences concerning LO by one year.

82. As discussed further below, when assessing the probative value of tendency evidence, the Court is obliged to proceed on the basis of the particulars provided in the tendency notice. The factual background set out by Berman AJ in the tendency judgment accorded with the indictment, and the Amended Tendency Notice, and specified the dates of the alleged offences against LO as occurring between 2011 and 2013: Wilson (No 1) at [3].

83. The amendment of the indictment to expand the dates for counts 1 to 3 to include potential offending in 2009 had the effect of lowering the potential ages of both LO and the respondent at the time of the alleged offending for those counts and also increased the potential difference between the timing of the allegations relating to LO and those relating to FO by up to two years.

84. Given the young ages of the respondent, LO and FO at the times in question, for each of these matters, an adjustment of even one year had the capacity to materially affect the assessment of the probative value of the tendency evidence. It follows that the primary judge did not err in considering the respondent’s application to revisit Berman AJ’s tendency ruling.

The Director’s second ground of appeal: Does the tendency evidence have significant probative value?

85. In cases to which s 97A of the Evidence Act applies, the assessment of the probative value of tendency evidence sought to be adduced by the prosecution may proceed in the following three stages: (i) The matters relevant to the assessment of the probative value of the evidence should be identified; (ii) If one or more of the matters identified at (i) above are within s 97A(5) of the Evidence Act, a decision must be made about whether there are exceptional circumstances such as to warrant taking that matter or matters into account. If this question is answered in the negative for any matter(s), those matter(s) must be excluded from the court’s assessment of the probative value at stage 3 below. If this question is answered in the affirmative for any matter(s), those matter(s) may be considered in the court’s assessment of the probative value of the evidence at stage 3 below; (iii) An assessment must then be made of the probative value of the evidence, taking into account any matters that do not fall within s 97A(5) and any matters which fall within s 97A(5) for which exceptional circumstances have been established, to determine whether the presumption in s 97A(2) has been displaced.

86. In the present case, the matters which the respondent invites the Court to consider are: (a) the age of the respondent, particularly at the time of the alleged offending against LO (namely, between 15 and 18 years of age); (b) the “potentially … significant time period” between the conduct alleged between the two complainants; (c) the difference in the ages of the respective complainants; (d) the difference in the length of time in which the sexual interest is evinced with respect to FO as against LO; (e) the difference in the relationship between the respondent and each complainant; (f) the differences in the sexual interest and the conduct which is the subject of the tendency evidence; and (g) the generality of the tendencies alleged.

87. The age of the respondent at the time of the alleged offending is not one of the matters listed in s 97A(5) of the Evidence Act. It is also apparent from the extrinsic materials that young accused persons were not within Parliament’s contemplation in the drafting of s 97A. Accordingly, as the Director properly accepted, the respondent was not required to demonstrate that exceptional circumstances exist for that matter be taken into consideration in assessing whether the s 97A presumption has been displaced.

88. The remaining matters identified above each fall within s 97A of the Evidence Act: see ss 97A(5)(a), (b), (c), (d) and (g). However, the age of the respondent at the time of the alleged offending alters the character of the evidence in ways which heighten the potential importance of each in this case. For example, as discussed further at [93] below, whilst a difference of two or three years in alleged offending may not be of any particular importance when assessing an alleged tendency of a mature adult, such a difference may be critical in assessing an alleged tendency of a young person. In these circumstances, we agree with the conclusions reached by both Berman AJ and the primary judge that there are exceptional circumstances which warrant taking into account the matters listed at [86] above.

89. However, it does not follow from the finding that there are exceptional circumstances which warrant the taking into account of s 97A(5) matters that the s 97A presumption is necessarily displaced. It remains incumbent on the Court to assess the probative value of the tendency evidence, taking into account each of the matters identified at [86] above, to determine whether there are “sufficient grounds” to conclude that the tendency evidence does not have significant probative value.

90. As outlined above, s 97A has significantly altered the law in respect of the assessment of the probative value of tendency evidence for alleged offences of child sexual assault. However, it has not altered the manner in which probative value is assessed. That is, whilst s 97A tips the scale strongly in favour of admission, and precludes various items being placed on the scales unless “exceptional circumstances” are shown, the process by which probative value is assessed remains otherwise unaltered.

91. The assessment of the probative value of tendency evidence requires consideration of “two interrelated but separate matters”: The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence… In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged: Hughes at [41].

92. In the present case, both matters are finely balanced.

93. There is force in the primary judge’s findings about the significance of the respondent’s age in this matter: Wilson (No 2) at [61] – [64]. The respondent was only three years older than FO. The first offence against FO is alleged to have occurred when FO was 14 or 15 years old and the respondent was 17 or 18 years old. If established, the respondent’s sexual interest in FO could be considered an “age-appropriate” sexual interest: Wilson (No 2) at [60]. Although we would hesitate to describe the respondent’s alleged sexual interest in LO as “paedophilic” (see R v MK [2024] NTSC 56 at [28]), it is certainly the case that any sexual interest in LO could not be described as “age-appropriate”, regardless of whether the offending occurred when LO was 6, 7, 8 or 9 years old.

94. Further, whilst we do not accept Mr Williamson SC’s submission that the respondent was “of an age where it is unlikely he had had an opportunity to develop tendencies”, care does need to be taken when assessing an alleged tendency of a young person. As the primary judge observed (at [64]): … children and young people continue to develop emotionally, psychologically, physically and sexually. That development includes exploration and experimentation in search of identity. Conduct engaged in during the course of the development of a young brain may not be fully understood or contemplated and cannot necessarily be explained by reference to patterns of behaviour or fixed tendencies, in part because of limited life experience and the unpredictability of adolescent behaviour. See similarly R v Sean (a pseudonym) (No 2) [2023] ACTSC 132 at [11], [15] – [16], [20] (McCallum CJ, referring to the “dynamic and often volatile nature of adolescent behaviour”) and BC v R [2015] NSWCCA 327; 257 A Crim R 340 at [34] (per Adams J, in dissent) and at [87] (Beech-Jones J).

95. For this reason, as observed at [88] above, any temporal gaps in the allegations need to be carefully scrutinised. In this respect, senior counsel for the respondent contended that the probative value of the evidence was reduced by the “potentially … significant time period of up to three years … between the conduct alleged in respect of the two sisters”.

96. As outlined above, on the amended indictment, the offending against LO was alleged to have occurred between 1 January 2009 and 1 January 2011; whilst the offending against FO was alleged to have occurred between 14 February 2011 and 1 January 2019. Accordingly, the potential temporal gap in the offending between the sisters is two years, rather than three years.

97. It is necessary to consider the tendency evidence as a whole: BC v R [2019] NSWCCA 111 at [76]. Whilst the earliest charge relating to FO is alleged to have occurred in February 2011, there is evidence of uncharged acts relating to FO which date back to 2008 (see at [18] above). Taking into account the evidence of those uncharged acts, the alleged incidents relating to LO overlap in time with alleged incidents relating to FO.

98. Nonetheless, it remains the case that the evidence reveals a persistent and consistent sexual interest in FO over an extended period of time, whereas the alleged offending against LO was discrete, consisting of two offences that occurred close in time and without repetition: see Wilson (No 2) at [60] – [61] and [78]. There is no obvious explanation for this difference.

99. On the other hand, the fact that LO and FO are sisters is significant. So much was recognised by both Berman AJ and McCallum CJ, each of whom emphasised that the present case does not involve a tendency “relating to children or young women generally” or a “sexual interest in children more broadly”, but instead concerns “a tendency to have a sexual interest in girls from a particular family”. This tendency is a much more particular tendency than a tendency to have a sexual interest in “children” and to “opportunistically” act on that sexual interest at the respondent’s home (also noting that not all of the offending against FO occurred in the respondent’s home).

100. The significance of relationship between the complainants is not limited to the DNA which the sisters shared, although that fact is not unimportant (in particular, the DNA which the girls shared may have the result that the respondent was attracted to common features of the girls, both physical and personality-based). The fact that the respondent had a common relationship with the sisters, via his family’s friendship with their family is also important. A willingness to transgress this familial relationship is a matter which heightens the probative value of the evidence.

101. The primary judge’s assessment of the similarity in the character of the acts differed from Berman AJ. Acting Justice Berman considered that “what is not alleged” is important: Wilson (No 1) at [44]. His Honour observed that there was no allegation of any form of penetrative sexual activity, and no allegation that the respondent forced, or even encouraged, either sister to touch his genitals at any time: Wilson (No 1) at [44].

102. In contrast, Taylor J, whilst acknowledging that there was “undoubtedly some similarity” between the incidents involving FO and LO, considered that an important difference between the allegations was that the conduct concerning FO had “an air of menace and/or control about them”, as they involved the direct exertion of physical force, which was absent in the alleged offending with respect to LO: Wilson (No 2) at [57] – [59] and [79].

103. On this issue, we agree with Berman AJ that the similarities in the conduct relating to each sister are more significant than the dissimilarities in the conduct alleged. The respondent engaged in indecent acts of touching with respect to each sister, which consisted of touching of the female genitalia and kissing, particularly the necks of the two sisters. As Berman AJ observed, it is notable that the alleged offending did not contain any penetrative acts, or encouragement of either sister to touch the respondent’s genitals: Wilson (No 1) at [43].

104. We acknowledge that there are dissimilarities in the conduct alleged, in particular in that the appellant repeatedly pushed and/or pulled FO into different rooms in order to indecently assault her, whereas the conduct alleged with respect to LO commenced with superficially more ‘playful’ behaviour.

105. Whether or not s 97A applies, dissimilarities in the conduct alleged may weaken an alleged tendency. (Section 97A simply precludes taking into account dissimilarities unless there are exceptional circumstances). However, dissimilarities do not necessarily have this effect. It is necessary to have regard to the possible reasons for any dissimilarities, and to ask whether the nature of the dissimilarities undermines the tendency sought to be advanced. That was the point of the majority decision in Hughes. The dissimilarities relied on by the appellant in Hughes – dissimilarities in the ages of the complainants and the alleged conduct of the appellant – “ignore[d] the tendency that they were adduced to prove”: Hughes at [55] – [56]. The majority held that, when properly assessed against the tendency asserted (“a tendency to engage opportunistically in sexual activity with underage girls despite a high risk of detection”), the “fact that the appellant expressed [that tendency] in a variety of ways did not deprive proof of the tendency of its significant probative value”: Hughes at [62] – [63].

106. As the Director submitted, in the present case, the dissimilarities in the respondent’s alleged conduct are readily explained by the physical difference in the size of the complainants. Simply put, the respondent was required to exert less force to LO in order to be able to indecently touch her in comparison to FO. The dissimilarities are not of a nature which greatly weaken the tendency particularised by the prosecutor in the first trial.

107. The difference in the age of the complainants is a matter that may impact upon the character of the sexual interest demonstrated. However, as noted at [97] above, it is necessary to consider the tendency evidence as a whole. As noted above, the tendency notice particularises uncharged acts relating to FO which date back to 2008, when FO was 12 years old, and not greatly older than LO was at the time of the alleged events concerning her (that is, 5 – 9 years old).

108. Of further importance is the brazen manner in which the alleged offending was committed. For both sisters, the appellant’s conduct involved a high risk of detection, either as a result of a family member happening to observe the respondent’s conduct and/ or of the sister crying out for assistance from family members during the course of the alleged conduct. As in Hughes [at [59] – [60]], this feature of the alleged offending increases the probative value of the evidence. In particular, the evidence “serve[s] an important purpose in removing a doubt which the ‘brazenness’ of the [respondent’s] conduct might otherwise have raised”: Davidson at [34], citing Hughes at [58] – [60].

109. As explained above, s 97A represents a significant recalibration of the test for admitting tendency evidence. Even where exceptional circumstances have been established, tendency evidence relating to children is presumed to have significant probative value unless the Court is satisfied that there are “sufficient grounds” to conclude otherwise.

110. Taking into account each of the matters discussed above, we do not consider that s 97A is displaced in respect of the tendencies advanced by the prosecutor in the first trial; that is, a tendency to have a sexual interest in girls from a particular family, and to act on that interest by engaging in brazen, opportunistic, or fleeting acts of indecency. The evidence of each complainant strongly supports this alleged tendency; and the alleged tendency strongly supports proof of the facts in issue (that is, whether the alleged conduct occurred).

111. However, as senior counsel for the respondent emphasised in his oral and written submissions on the appeal, the tendency particularised by the prosecutor in the first trial was not the tendency that was ruled upon by the primary judge.

112. As outlined above, the tendency notice that was issued by the prosecution has, at all times, specified the tendencies relied on at a high level of generality: to have a sexual interest in children; to act on that sexual interest; and “to act in opportunistic ways at his home to act on his sexual interests” [sic]. Whilst the prosecution particularised the tendency relied on at trial to a tendency to “have a sexual interest in girls from a particular family” and “to act on that interest from time to time by engaging in opportunistic or fleeting acts of indecency” (and also relied on the brazen nature of the conduct), at no stage has the prosecution ever issued an amended tendency notice clarifying that it does not seek to rely on the broad tendencies alleged in the original tendency notice, or specifying that it now relies on the narrowed tendencies.

113. It is necessary for the prosecution to identify with precision the tendency alleged: Jacobs (a pseudonym) v The King [2024] VSCA 309 at [25]. Recent authorities of the High Court, the Victorian Court of Appeal and the ACT Supreme Court have further emphasised that reformulation of a tendency by the court, absent formal amendment of the tendency notice, should not be condoned: TL v the Queen [2022] HCA 35; 275 CLR 83 at [33]; Sharman (a pseudonym) v The King [2023] VSCA 56 at [53] and [57]; Parkinson v Alexander [2017] ACTSC 201 at [45] – [47]; DPP v Alexander (a pseudonym) (No 2) [2024] ACTSC 413 at [68]. Accordingly, an assessment of the probative value of the tendency alleged can only be made by reference to the tendency particularised in the tendency notice which is before the Court.

114. Although Berman AJ appeared to contemplate reliance on a narrower tendency, the tendency notice which was the subject of his Honour’s orders (the Amended Tendency Notice) particularised the tendencies relied on by the prosecution in broad terms which made no reference to the fact that FO and LO were sisters. Although his Honour’s ruling might have been clearer, it remained incumbent on the prosecution to particularise in its tendency notice the tendency which it sought to advance at trial.

115. At trial, the prosecution effectively disavowed the tendency specified in the Amended Tendence Notice, and further refined the tendency referred to in Berman AJ’s reasons without seeking leave for a further amendment to the Amended Tendency Notice. Where the respondent’s initial objection to the reformulated tendency was not pressed, and during a busy trial, it is understandable that McCallum CJ did not require the prosecution to formally amend the tendency notice so as to align with the narrowed tendency that was advanced by the prosecution before the jury.

116. However, once a retrial was ordered, and particularly once the respondent had applied to revisit Berman AJ’s tendency ruling, the prosecution should have amended the tendency notice to make clear the tendency or tendencies which the prosecution sought to advance at the retrial.

117. The prosecution’s failure to do so has given rise to particular difficulties on this appeal. Specifically, the orders of the primary judge which the prosecution has been granted leave to appeal from are orders which expressly relate to a tendency notice that particularised the tendencies sought to be relied upon as a tendency to have a sexual interest in children; to act on that sexual interest; and “to act in opportunistic ways at his home to act on his sexual interests” [sic]: see Wilson (No 2) at [3].

118. A general “sexual interest in children” says little about the respondent having an age appropriate sexual interest, or a preparedness to “opportunistically” engage in that interest, with respect to FO. Further, an age-appropriate sexual interest in FO and a preparedness to “opportunistically” engage in that interest on various occasions over a lengthy period of time does not strongly support proof of the facts in issue concerning LO. Accordingly, the s 97A presumption of significant probative value is displaced with respect to the tendencies alleged in the tendency notice in relation to both complainants.

119. As these were the only tendencies particularised by the prosecution in the notice which was the subject of the ruling by the primary judge, it follows that the primary judge was correct to hold that the tendency evidence was not admissible. It also follows that the order severing the indictment was also correct, and that the Director’s appeal should be dismissed.

120. However, for the reasons outlined above, we are of the view that the presumption contained in s 97A of the Evidence Act was not displaced with respect to the tendency particularised by the prosecutor in the first trial. This aspect of our reasons, whilst strictly obiter, was the subject of submissions by both parties, including further written submissions on behalf of the respondent which were provided at the invitation of this Court following the oral hearing of this appeal. In the unusual circumstances of the present appeal, where the first trial was conducted on the basis of a narrowed tendency and the respondent’s retrial is imminent, we considered it appropriate to record those views so as to avoid any further delay to the proceedings.

121. For completeness, and again, having fully considered submissions from the parties on the issue, we are also of the view that the probative value of the tendency evidence outweighs its prejudicial effect. Like Berman AJ, we are of the view that any emotional reaction on the part of a juror to hearing the allegations made with respect to LO (which are of relatively minor indecent assaults) may be sufficiently guarded against by appropriate directions: Wilson (No 1) at [62]. These directions may include a direction to the jury panel that any person who feels that they cannot impartially and unemotionally consider evidence should ask to be excused.

122. Finally, we wish to make clear that the order dismissing the appeal does not preclude the prosecution from seeking leave to amend the tendency notice to rely on the tendencies that were particularised by the prosecution at the first trial, or to seek leave to revisit the severance decision on that basis.

Orders

123. For the above reasons, the orders of the Court are: (1) Appeal dismissed. (2) Order (1) does not preclude the prosecution from filing an amended tendency notice which relies on the tendencies that were relied upon by the prosecution in the trial before McCallum CJ from 26 September 2023 to 10 October 2023.

I certify that the preceding one hundred and twenty-three [123] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate: H Clift Date: 14 April 2025