1. When the judge came to charge the jury on the use of the evidence as tendency evidence, the judge directed the jury in conventional terms that each charge must be considered separately in light only of the evidence which applies to it.
2. On the topic of tendency, the judge told the jury that the prosecution relied on a tendency on the part of the applicant to act on his sexual interest in his daughters and JK when she was in his care. The judge noted that, in order to establish the tendency, the prosecution relied on the charged acts themselves and the uncharged acts to which we have already referred.
3. The judge directed the jury that, if it was satisfied these things occurred and of the existence of the tendency on the part of the applicant, the jury could use that tendency to find more likely that the applicant acted in accordance with his sexual interest in the complainants and committed each of the charged offences. The judge further told the jury that, even if it accepted that the applicant had a tendency to have a sexual interest in the complainants, the jury needed to consider whether or not he acted in accordance with that interest on the occasion of the particular charged offence that the jury was considering.

1. In his written case, the applicant confined his attack on the admissibility of the tendency evidence to a submission that the alleged tendency did not have significant probative value in proof of the charges.
2. In his oral argument, the applicant added an additional argument that sought to challenge whether there was sufficient evidence to establish the tendency in the first place. On this aspect, the applicant notes that the tendency involved a sexual interest in relation to children aged between 4 and 16 years of age but says that charges 3 to 5 occurred when JK was between 16 and 18 years of age.
3. It will be recalled that charges 3 to 5 related to allegations of indecent assault committed against JK when she was in or standing near the swimming pool and involved the applicant untying her bikini top so as to expose her breasts. The applicant says that these events occurred when JK was older than 16 years old and thus could provide no evidence that supported the tendency.
4. In addressing the question whether the tendency made the facts making up the charge more likely, the applicant submits that the tendency is too broadly expressed to be significantly probative of the charged acts.
5. The applicant says that the tendency was drafted in such a way as to capture all the offending across the three complainants but, as a result, any probative force that the evidence would have is diluted. He says that the tendency was broadened in three respects:

(a) The tendency was extended to cover a sexual interest in children of his partner in his care so as to make it applicable to JK.

(b) The age of the children identified in the notice was 4 to 16.

(c) The time period included a period of four years during which there was no relevant misconduct.

1. The applicant accepts that subsets of the tendency could have significant probative value in relation to some of the charges. So, for example, the applicant would not contest that a tendency on the part of the applicant to be sexually attracted to his biological children might have significant probative value in relation to charges of incest or indecent dealing with PT and BT. But that tendency would not be significantly probative of the offending against JK, who was not his biological child.
2. Thus, although the applicant accepts that the tendency to be sexually attracted to his own biological children is very specific, the extension, made necessary to cover JK, was artificially broad.
3. The applicant submits that, at least at the time of charge 1, the relationship between the applicant and JK's mother was in its early stages and there was no relationship akin to a parent between the applicant and JK. He submits that, at the time of the first charge, JK was not in his care in any meaningful sense or at least in a very different sense to a parent or a person in loco parentis.
4. The applicant submits that the tendency describes a correlation but does not elucidate a type of attraction or state of affairs that makes the offending more likely. He says there is no common connection between the offending against JK on the one hand and that against PT and BT. The point is reinforced, he says, when regard is had to the later offending against JK and BT, which occurred when the two girls were much older and which is less serious and of a very different kind.
5. The applicant says that the features of the tendency offer little more than describing the offending itself and that they refer to common or generic features that are common to this type of offending. He says the tendency offers no probative force beyond inviting reasoning that he is the sort of person who commits these types of crimes.
6. The applicant describes the crux of his submission as being that the relationship of the applicant and his own children on the one hand and his relationship with JK on the other were very different and that the tendency does not advance the matter beyond the recognition that an allegation has been made of sexual offending.
7. The applicant also contends, by reference to McPhillamy,[14] that there was a time gap in this case between some of the charged acts, which is relevant to the assessment of the evidence's probative value.
8. The applicant also contends that the admission of the tendency evidence involved a risk of unfair prejudice, including the risk of the jury's assessment being clouded by its emotional response to the tendency evidence (in particular, the allegation of digitally penetrating his four-year-old biological child), and the prejudice of being required to answer several uncharged allegations many years in the past. Such prejudice was not capable of being cured by directions and substantially outweighed the probative value of the evidence.
9. The respondent submits that the tendency was sufficiently particularised, and the evidence making up the tendency shared various compelling common features that linked the evidence relating to the complainants together, even if the conduct was not always identical. The respondent refers in particular to the special relationship between the applicant and the complainants, the complainants' age, that the conduct occurred while the complainants were in the applicant's care, and various other features. The respondent argues that the probative value of the evidence was increased because the charged and uncharged acts occurred continuously over about 13 years with no significant interruptions.
10. The respondent further contends that any risk of prejudice relating to the tendency evidence was effectively remedied by the trial judge's jury directions, including a direction that the delay in complaining about alleged conduct would affect the applicant's ability to defend himself against the charges.

1. Section 97 of the Evidence Act regulates the admissibility of tendency evidence. In order to be admissible, tendency evidence must have significant probative value to a fact in issue. In the context of a criminal trial, the facts in issue are those which establish the elements of the offence.[15]
2. In order to assess the probative value of tendency evidence, it is necessary to consider two related but separate matters: first, the extent to which the evidence establishes that the accused has the relevant tendency; and second, the extent to which that tendency makes more likely the facts constituting the charged offence.[16] There are thus two points of connection. The first is what the evidence shows about the accused and the extent to which it establishes a tendency for that person to act in a particular way or have a particular state or mind. The second is what inference can be drawn in support of, or in opposition to, a fact in issue based on the existence of that tendency. The evidence is only admissible if the inference is sufficiently strong as to be significantly probative of that fact. As the High Court explained in TL:

For evidence to have 'significant probative value', it 'should make more likely, to a significant extent, the facts that make up the elements of the offence charged'; in other words, the evidence must be 'important' or 'of consequence' to the assessment of the probability of the existence of a fact in issue. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged.[17]

1. For some time, the connection between the tendency and the charged act was thought to require some points of similarity and distinctiveness that gave the tendency its force.[18] That view was rejected by a majority of the High Court in Hughes.[19] In Bauer, the High Court restated the position in Hughes in respect of single complainant cases.[20] Of course, that does not mean that a tendency might not possess unusual or even unique features that would, on that account, substantially increase its probative value, once it is established that the accused has the relevant tendency.
2. The issue in Hughes was whether the evidence adduced to prove the tendency had to display similar features to the facts in issue. Although the High Court rejected 'striking similarity', 'underlying unity' and similar concepts as essential, it is apparent from Hughes, Bauer and McPhillamy that there must be some degree of cohesion, or some 'link' within the tendency and between the tendency and the facts in issue in the particular case. Where, however, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some special feature of the other sexual misconduct and the alleged offending which serves to link the two together.[21]
3. Although in Hughes the High Court explained that identification of an underlying unity or discernible 'pattern of conduct' was not an essential prerequisite for the use of tendency evidence, in that case there was a sexual interest and an acting out of that sexual interest in a particular context which involved a risk of detection. A feature of the applicant's tendency, which involved the unusual inclination of an adult man to engage in sexual conduct with underage girls, also had the feature that the offender courted the substantial risk of discovery by friends, family members, workmates and even casual passers-by. The High Court concluded that 'this level of disinhibited disregard of the risk of discovery by other adults' was even more unusual than the acting on the sexual urge.[22] As already noted, the tendency provides a link or point of connection between the evidence and the charged acts. If the tendency is expressed in terms that are too wide, generic or commonplace, it may lose its force as proof of the facts in issue beyond establishing that the person was a person who had engaged in criminal acts in the past and therefore the kind of person who might do so in the future.[23]
4. In McPhillamy, the alleged tendency was a sexual interest in male children in their early teenage years who were under the accused's supervision. The High Court noted that a mature man's sexual interest in young teenage boys is an enduring tendency to have a particular state of mind, but that it was the tendency to act on that impulse which gave the evidence its probative value.[24] The evidence showed a tendency on the part of the accused to act on the sexual interest in relation to boys under his supervision. It did not have strong probative value of a tendency to act in other contexts including, in the case of the charged act, in relation to alleged sexual offending in a public toilet.[25] Briefly put, the state of mind tendency did not have strong probative value and, to the extent there was a tendency to act on it, the charged acts involved different circumstances.
5. When the tendency notice is drafted with an eye to capture the charged acts, the problem in Hughes, namely whether there is a sufficient similarity between the tendency and the charged acts, may not directly arise. Indeed, on that approach, the charged acts may find quite close reflection in the tendency. Rather, the issue will be whether the formulation of the tendency itself is too broad - in the sense of being over-inclusive - or too specific - in the sense of being tied to the very facts in issue but which cannot meaningfully be said to constitute a single tendency to act or think in a particular way. This latter difficulty in using generally-expressed tendencies particularised by disparate events or conduct is acute where the tendency is made up of various and distinct charged acts both because it risks circular reasoning and because of the artificiality of treating the combined acts as constituting a tendency to act in a particular way or to have a particular state of mind.
6. This potential problem often arises where the tendency is, in effect, reverse engineered from the facts. Tendency reasoning starts with the tendency and its power is that it explains or makes a person's conduct or state of mind more likely, including by explaining what might be thought to be entirely-improbable events based on ordinary human experience. It entirely undermines that process if the prosecution starts with the facts, especially where they include charged acts, and constructs a tendency to fit.
7. Finally, s 101(2) of the Evidence Act provides that tendency evidence about an accused that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.

1. Whether there was evidence to establish the tendency was to be determined by reference to the evidence identified in the notice. The prosecution relied on all of the evidence. In relation to the sexual interest in children aged between 4 and 16, there were allegations by JK, BT and PT.
2. In our opinion, taken together, and on the assumption it was accepted by the jury, the evidence well supported the tendency. Even if the evidence of JK in relation to the charge of indecent assault was to the effect that it occurred after she was 16, that would not mean that there was no evidence of the tendency. Taken as a whole, the evidence showed a sexual interest on the part of the applicant spanning the entire period. Although there was a time gap between the penetrative acts involving JK and BT and the later indecent acts when JK and PT were older, consideration of the charged acts together with the uncharged acts revealed an ongoing sexual attraction and acting on that attraction.

Did the tendency have significant probative value to prove the charges?

1. We turn then to the central issue argued on the application.
2. There are two distinct elements of the tendency described in the notice: one going to the applicant's state of mind and the other to his conduct.
3. The state of mind tendency is relatively broad: it covers a wide age span. A tendency on the part of a man to be sexually attracted to a four-year-old child might not generally be regarded as the same as a tendency to be sexually attracted to a 16-year-old child.
4. The conduct covered by the notice is also broad: it is described as 'sexual misconduct' with a child aged between 4 and 16. The conduct is further qualified in two respects. First, it is particularised in two ways: touching the genitals, bottom or breasts; and watching them naked or in a partial state of undress. Second, the conduct is said to occur in certain circumstances related to opportunity.
5. In our view, the evidence established that the applicant had a sexual interest in PT, BT and JK. As explained in McPhillamy, merely having a sexual interest in underage children would not be significantly probative of sexual offending unless the person had acted on that sexual interest. Further, acting on the sexual interest in a particular way at one point in time and in one context may not have probative value on the question whether there was sexual offending at a different time and in a different context.
6. There can be little doubt that the offending in this case captured by the various charges spans a wide range of criminal conduct from sexual penetration of a child aged 5 to indecent assault involving the removal of the bikini top of a 17-year-old girl. It also ranges across a considerable time span.
7. We are conscious of the argument that, as occurred in McPhillamy, the different circumstances or context across the range of offending might diminish the probative value of the evidence. The two particular forms of sexual misconduct identified in the notice, namely touching the genitals, bottom or breasts of a child and watching them naked or in a state of partial undress, do not meaningfully limit the tendency and do no more than provide examples of the type of sexual misconduct that the applicant has engaged in at different times. On that basis, the notice covers very broad conduct.
8. However, that is not the end of the matter. The context in which the offending was said to occur has a critical underlying feature. This feature brings together various aspects that, in another context, might be seen as disparate. The offending occurred in a domestic setting, when the applicant was either a parent or, in the case of JK, was in the position of carer. This represents more than opportunity. The relationship provides both the opportunity and explains the circumstances in which the applicant was prepared to act in furtherance of his sexual attraction.
9. Although the tendency related to the children when they were various ages, and the indecent assault charge with respect of JK may have occurred when she was beyond the age range specified in the tendency notice, the applicant's tendency, which involved, but was not confined to, a sexual interest in her, and in his biological daughters, provides powerful evidence of sexual attraction, the transgression of sexual boundaries and a willingness to act on it where the opportunity arose in a particular setting and where occupying a particular role.
10. In Bauer, the High Court drew a distinction between single-complainant and multiple-complainant cases. In relation to the former, the tendency is built on a sexual attraction to a particular person, being an attraction that would apply equally in different contexts.[26] In relation to the latter, there must be some common feature or link.[27] In this case, although there was a time span and the charges ranged in seriousness, there was a common and important link in the relationship in that it covered children who had been in the applicant's care (both his biological children and JK). It was this link that provided the evidence with its significant probative value. The same link provides a strong basis for distinguishing McPhillamy.
11. Finally, in McPhillamy, there was a time gap of around 10 years between the different kinds of offending.[28] By contrast, in this case, the charged and uncharged acts, when taken together, constitute an extended and sustained period during which the applicant acted on the sexual interest which was the subject of the tendency evidence, albeit with gaps of several years between some of the conduct.[29] Considered in that context, the time gaps between the conduct do not provide a basis to conclude that the evidence was not significantly probative.
12. Ultimately, we are satisfied that the evidence was significantly probative of each of the charged acts.

Did the probative value substantially outweigh any prejudicial effect?

1. For the purposes of applying s 101 of the Evidence Act, we are satisfied that through proper directions any risk of a misuse of the evidence could be avoided or significantly limited. The jury directions already noted were sufficient for that purpose. The judge appropriately directed the jury as to the use of the tendency evidence and, moreover, directed the jury to consider each charge separately, to weigh the evidence dispassionately and to ignore any emotional influences, and noted that the delay in complaining about some of the alleged conduct affected the applicant's ability to defend himself. The conduct the subject of the charges was not of such a kind that adequate jury directions could not sufficiently manage any risk of prejudice.
2. Our conclusion about the outcome of this case is one based on the particular circumstances and evidence of this case. Our more general concern about the risk of reverse-engineering tendency in order to capture disparate events remains.
3. We would grant leave to appeal but dismiss the appeal against conviction.

[1] To avoid the possibility of identifying the alleged victims of sexual offences, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant and the complainants.

[2] R v Bauer [2018] HCA 40; (2018) 266 CLR 56, 89 [61] ('Bauer').

[3] DPP v [Harris (a pseudonym)] [2021] VCC 459, [9].

[14] McPhillamy v The Queen [2018] HCA 52 ('McPhillamy').

[15] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338, 349 [16] (Kiefel CJ, Bell, Keane and Edelman JJ) ('Hughes').

[16] Ibid 356 [41] (Kiefel CJ, Bell, Keane and Edelman JJ); 371-72 [90]-[93] (Gageler J).

[17] TL v The King (2022) 275 CLR 83, 95 [28] (citations omitted) ('TL').

[18] Velkoski v The Queen [2014] VSCA 121; (2014) 45 VR 680, 717-718 [164]-[166]; [2014] VSCA 121.

[19] Hughes [2017] HCA 20; (2017) 263 CLR 338, 361 [57]-[58] (Kiefel CJ, Bell, Keane and Edelman JJ).

[20] Bauer [2018] HCA 40; (2019) 266 CLR 56, 82 [48].

[21] Hughes [2017] HCA 20; (2017) 263 CLR 338, 363 [64] (Kiefel CJ, Bell, Keane and Edelman JJ); Bauer [2018] HCA 40; (2019) 266 CLR 56, 87 [58].

[22] Hughes [2017] HCA 20; (2017) 263 CLR 338, 361 [57].

[23] TL (2022) 275 CLR 83, 95-96 [29], citing Hughes [2017] HCA 20; (2017) 263 CLR 338, 363 [64], 392 [153], 426 [224] (Kiefel CJ, Bell, Keane and Edelman JJ) and McPhillamy [2018] HCA 52, 1052 [36]-[38] (Edelman J).

[24] McPhillamy [2018] HCA 52, [26]-[27] (Kiefel CJ, Bell, Keane and Nettle JJ).

[25] Ibid [31]-[32] (Kiefel CJ, Bell, Keane and Nettle JJ).

[26] Bauer [2018] HCA 40; (2018) 266 CLR 56, 82 [48], 83 [51].

[28] McPhillamy [2018] HCA 52, [32] (Kiefel CJ, Bell, Keane and Nettle JJ).

[29] See similarly Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293, [36], [41] (Basten JA, Johnson J agreeing at [58], RJ Hulme J agreeing at [61]).