NETTLE J. In February 2014, the appellant stood trial in the District Court of New South Wales on 11 counts of sexual misconduct against five female complainants under 16 years of age. Over objection, the Crown was permitted to adduce as tendency evidence pursuant to s 97 of the Evidence Act 1995 (NSW):
(a) in relation to each count:
(i) evidence of the charged acts committed against each other complainant;
(ii) evidence of uncharged acts committed against each other complainant;
(iii) evidence of uncharged acts committed against three non‑complainants; and
(b) in relation to Count 11, in addition to the above, evidence of uncharged acts committed against three further non-complainants.
The appellant was convicted by a jury of 12 of all counts except Count 10.
The question for decision in this appeal is whether any and what part of that evidence was admissible against the appellant as tendency evidence under s 97 of the Evidence Act. As will be explained in what follows, some of the evidence was not admissible as tendency evidence in support of some of the counts because it did not have significant probative value in relation to the facts in issue on those counts.
Evidence adduced against the appellant
Counts 1 and 2 related to complainant "JP"; Counts 3, 4, 5 and 6 to complainant "SH"; Counts 7, 8 and 9 to complainant "AK"; Count 10 to complainant "EE"; and Count 11 to complainant "SM".
Evidence given by complainants of charged offences and uncharged acts admitted as tendency evidence in relation to all counts
(i) Complainant JP
Counts 1 and 2 charged offences of sexual intercourse with JP between January 1984 and April 1985 without the consent of JP and knowing that JP was not consenting. At the time of the alleged offending, JP was 14 or 15 years of age. The appellant was a friend of JP's parents and the two families socialised from time to time. JP gave evidence that the acts comprising Count 1 occurred at JP's family home during one such occasion. She said that the appellant entered her bedroom, where she and the appellant's daughter were sleeping, put his hand inside her pyjama pants causing her to wake, touched her vagina and inserted his finger into her vagina. She said that she pushed his hand away and that he then licked her cheek and left the room.
JP's evidence as to Count 2 was that, a month or so later, the appellant again entered her room while she was in bed, put his hand inside her pants and rubbed her clitoris and vagina. She said that she held his wrist, trying to push his hand away.
JP stated that the appellant had entered her room and touched her vagina on other occasions, and that he would touch or brush past her in ways that made her uncomfortable.
(ii) Complainant SH
Counts 3, 4, 5 and 6 charged offences of indecent assault against SH between March 1985 and May 1986. At the time of the alleged offending, SH was between six and eight years old. SH lived with her family close to the appellant's home. She was a friend of the appellant's daughter and regularly visited and slept over at the appellant's home. SH gave evidence that the acts comprising Counts 3, 4, 5 and 6 occurred in the course of two separate incidents at the appellant's home when the appellant came into the bedroom in which SH and the appellant's daughter were sleeping and instructed SH to roll over in bed. He put her hand on his penis and made her masturbate him until he ejaculated. He then wiped the semen on her exposed vagina with his penis.
SH gave evidence that the appellant had done the same thing on other occasions, stating that it had occurred at least five times.
(iii) Complainant AK
Counts 7, 8 and 9 charged offences of aggravated indecent assault of AK between December 1986 and February 1987, while AK was under the authority of the appellant. At the time of the alleged offending, AK was nine years old. AK was a school friend of the appellant's daughter and occasionally stayed over at the appellant's home. AK gave evidence that the acts comprising Counts 7 and 8 occurred during an outing to Manly Beach when the appellant encouraged his daughter and AK, who were wearing goggles, to swim between his legs. AK said that on the two occasions she did so, she saw the appellant's penis protruding from the side of his swimming togs and that he briefly pinned her between his legs as she passed between them. Her evidence of the acts comprising Count 9 was that, on another occasion when she stayed over at the appellant's home, it was necessary for the appellant to apply medicated ear drops to her ear. In order for that to occur, AK lay with her head on the appellant's lap. When she did so, she felt his erect penis through his trousers rubbing against her face.
AK also gave evidence of other occasions when the appellant instructed her to sit on his lap while he had an erection and of further occasions when he exposed his penis to her. On one of the latter occasions, AK walked into the lounge room and the appellant was sitting on the sofa dressed in a sarong that was pulled up to his thighs so that she could see his groin, penis and testicles. After moving his legs open and shut, he pulled the sarong down a little and AK and the appellant's daughter sat on the sofa with him. Another such occasion occurred when the appellant, again wearing a sarong, came into the bedroom in which AK and the appellant's daughter were sleeping. He sat on his daughter's bed with his legs apart so that AK, who was sleeping on a mattress on the floor, could see his penis as he conversed with her about the day's events.
(iv) Complainant EE
Count 10 charged an offence of inciting EE to commit an act of indecency with the appellant between September and December 1988. At the time of the alleged offending, EE was 15 years of age. The appellant was a friend of EE's uncle and EE had undertaken work experience with the appellant's wife. After the work experience finished, EE met the appellant several times. EE gave evidence that the acts comprising Count 10 occurred when the appellant drove her home after they had visited a harbour-side park. They walked together down the driveway of EE's parents' home and began kissing. During the kiss, the appellant pressed his erect penis into EE's hip and she moved her hand onto his penis outside his clothing. He said "that's it". EE said that the appellant told her that she should not bother having sex with boys because they would not look after her, that she should have sex with a real man because she would have a much better time and that he could show her things that boys did not know.
EE also gave evidence of uncharged acts, including that, on another occasion, she met the appellant after school and they went together into bushland adjacent to sports fields. They sat together on a rock and she leaned her back against him with his legs either side of her and his arms around her. He kissed her on the back of the neck. She turned and kissed him. At one point during the kissing, the appellant touched her vulva through her clothing. When the appellant later returned EE to her parents' home, he said to her that he thought they had taken things about as far as they could go and that he wanted her to find a place for them to have sex because he was "too old to be doing it in the bush".
(v) Complainant SM
Count 11 charged an offence of committing an act of indecency towards SM between April and August 1990, when SM was 12 or 13 years old. SM had worked with the appellant on a television series called Hey Dad..! from the time she was eight years old. She gave evidence that the acts comprising Count 11 occurred when the appellant came out of his dressing room on the Hey Dad..! set and stood in front of a mirror in view of SM. She said that he made eye contact with her, undid his belt, allowing his trousers to drop to the floor, and pulled down his underpants, thus exposing his penis in the mirror. He wiggled his hips back and forth looking at her in the mirror and then at his penis.
SM also gave evidence of uncharged acts, including of occasions when she was required to sit on the appellant's lap for publicity photographs and he would pick her up with his hands on her chest and put his hand underneath her, sometimes moving it so as to touch her vagina.
Evidence of uncharged acts against non-complainants ("BB", "AA" and "VOD") admitted as tendency evidence in relation to all counts
BB, who was a member of the appellant's extended family, gave evidence of uncharged acts, including of an occasion when she was 11 years old and attended her grandparents' birthday party at the appellant's home. BB said that the appellant touched her breasts under her shirt and put his hand underneath the elastic of her jeans.
AA, who was also a member of the appellant's extended family, gave evidence of uncharged acts, including that, when she was between 10 and 14 years of age, the appellant touched her breasts and between her legs while swimming in the pool at her home. She stated that, following the touching in the pool, she saw the appellant, who had asked to get changed in her bedroom, standing naked in front of a mirror touching his genitals with the bedroom door open. AA further deposed that, on occasions when she had visited the appellant's home, the appellant had touched her breasts on the outside of her clothing while the appellant's daughter was out of the room and that the appellant had tried to touch her (AA's) breasts and take off her shirt while giving her a back massage.
VOD, who had lived near to the appellant, gave evidence that, when she was seven to nine years old, on occasions when she and SH slept over at the appellant's house, the appellant would walk around the house, including in the bedroom where the girls were sleeping, without any clothes on. VOD said that she saw the appellant's genitals.
Evidence of uncharged acts committed against non-complainants ("LJ", "CS" and "VR") admitted as tendency evidence in relation to Count 11
LJ, CS and VR each worked with the appellant on the set of Hey Dad..! and each gave evidence of uncharged acts admitted as tendency evidence in relation to Count 11 only.
LJ started work as a costume designer on the Hey Dad..! set when she was about 24 years of age. She said that it was part of her responsibilities to wake the appellant when he was napping in his dressing room and that the appellant requested that she enter the room to ensure he was awake. She recalled that, although he had initially slept clothed, and then naked under a sheet, the appellant began occasionally to sleep naked and uncovered. As a result, LJ said that, when the appellant was naked, she would only call to him and leave the door open, and that he would cover himself. She also deposed that, on occasions, the appellant grabbed her breasts, and brushed past her in a way that caused his genitals to rub against her back or bottom.
CS worked in the wardrobe department when she was between 19 and 20 years old. She said that the appellant would brush past her and make contact with her bottom or breasts with his genitals or hands, and that, on one occasion, he exposed his penis to her by dropping his pants in the dressing area of the set.
VR worked as a wardrobe assistant when she was 18 years old. She said that, on occasion, the appellant had put his hand under her armpit near her breast and that, when she was called upon to wake him after he had been napping in his dressing room, she would see him naked.
Admission of the tendency evidence
The Crown sought to adduce the evidence described above (hereinafter, "the tendency evidence") to prove a tendency on the part of the appellant to act in a particular way and to have a particular state of mind. The Crown particularised that alleged tendency in the following terms:
"(i) To [have] a sexual interest in female children under 16 years of age;
(ii) To use his social and familial relationships with the families to obtain access to female children under 16 years of age so that he could engage in sexual activities with them;
(iii) To use his daughter's relationship with female children to obtain access to them so that he could engage in sexual activities with them;
(iv) To use his working relationship with females to utilise an opportunity to engage in sexual activities;
(v) To engage in sexual conduct with females aged under 16 years of age by either
a. touching in an inappropriate sexual way but maintaining the contact was inadvertent or accidental;
b. by exposing his naked penis / genitalia;
c. by making the child come into contact with his penis / genitalia;
d. touching the child's vaginal area
e. by carrying out sexual acts upon the complainants when they were within the vicinity of another adult."
The appellant sought a pre-trial ruling from the trial judge as to the admissibility of the tendency evidence. The trial judge held that:
"The fact that alleged sexual acts are not identical does not deplete the evidence of its probative value. ... The tendency which is established here is a wider and more detailed pattern of behaviour or modus operandi in the accused's behaviour. In my view, that whilst there are differences in the complainant's [sic] accounts as to the nature of the acts undertaken and the circumstances in which they occur, the evidence is capable of establishing a sexual interest by the accused in young female children. In my view, the probative value of the evidence is significant.
...
It is not the Crown case that the accused had a tendency to orchestrate or arrange the circumstances or created the environment in which the sexual activities occurred. In my view, the evidence establishes a tendency to take advantage of situations which arose where the accused came into contact with young female children. ...
[T]he pattern of behaviour relied upon by the Crown is manifest, if not striking and requires little further analysis."
In closing address, the Crown prosecutor put to the jury that the tendency evidence proved "that the accused has a tendency to have a sexual interest in females under 16 years of age and that he acted upon that sexual interest". The written "Tendency Direction" given and read to the jury by the trial judge in the course of summing up also provides some insight into the purpose for which the evidence was adduced and, therefore, the basis on which it was admitted. The direction was as follows:
"The Crown case is that the evidence of the sexual conduct of the accused given by the complainants (both the acts the subject of a count on the indictment and other alleged acts of sexual conduct) and the evidence of the tendency witnesses is relevant to proving the accused's guilt in respect to individual counts on the indictment because the evidence of the complainants and the tendency witnesses establishes a pattern of behaviour that reveals that the accused has a tendency to act in a particular way or to have a particular state of mind.
The Crown argues that the evidence establishes that the accused had a particular state of mind, that is;
. That the accused was a person who had a sexual interest in female children under 16 years of age;
In this regard, the Crown argues that you will find from the evidence led in the trial in relation to each of the complainants and the tendency witnesses, [VOD], [AA] and [BB], that the accused had the tendency to act with a particular state of mind beyond reasonable doubt, that is the accused had a sexual interest in female children under 16 years of age. The Crown argues that having found beyond reasonable doubt the accused's sexual interest in female children under the age of 16 years, you can use that finding to prove the allegations in each of the counts on the indictment beyond reasonable doubt.
The Crown argues also that the evidence of the complainants and tendency witnesses [VOD], [AA] and [BB] establishes that the accused has a tendency to act in the following particular ways:
. That the accused took advantage of his social and familial relationships with the families to obtain access to female children under 16 years of age so that he could engage in sexual activities with them;
. That the accused took advantage of his daughter's relationship with female children to obtain access to them so that he could engage in sexual activities with them;
. That the accused engaged in sexual conduct with females aged under 16 years of age by:
a. touching in an inappropriate sexual way but maintaining the contact was inadvertent or accidental;
b. by exposing his naked penis / genitalia;
c. by making the child come into contact with his penis / genitalia;
d. touching the child's vaginal area;
e. by carrying out sexual acts upon the complainants when they were within the vicinity of another person.
In relation to Count Eleven on the indictment, the Crown argues that the evidence of the tendency witnesses [LJ], [CS] and [VR] establishes that the accused has a tendency to act in the following particular way:
. That the accused took advantage of his working relationship with females to utilise an opportunity to engage in sexual activities;
. That the accused engaged in touching in an inappropriate sexual way but maintaining the contact was inadvertent or accidental;
. That the accused exposed his naked penis / genitalia.
The necessary findings before the evidence can be used as establishing tendency:
The evidence of the accused having the tendency to act with a particular state of mind or the evidence of the tendency to act in a particular way can only be used by you, in the way the Crown asks you to use it, if you make two findings beyond reasonable doubt.
The first finding:
The first finding is that you are satisfied beyond reasonable doubt that one or more of the acts relied upon by the Crown to prove the particular tendency to act with the particular state of mind, or the tendency to act in a particular way occurred. Before you can apply tendency reasoning to the counts on the indictment you must first be satisfied that the Crown has established beyond reasonable doubt that the accused did in fact commit the acts which the Crown alleges demonstrate the relevant tendency to act with the particular state of mind or the tendency to act in a particular way.
In making that finding you do not consider each of the acts in isolation, but consider all the evidence and ask yourself whether you are satisfied that a particular act or acts relied upon actually took place.
...
The second finding:
You ask yourself whether, from the act or acts that you have found proved, you can conclude beyond reasonable doubt that the accused had the tendency to act with the particular state of mind or the tendency to act in a particular way that the Crown alleges.
If you cannot draw that conclusion beyond reasonable doubt, then again you must put aside any suggestion that the accused had the particular tendency alleged.
So, if having found one or more of the acts attributed to the accused to have been proved beyond reasonable doubt and you can, from the proved act or acts, conclude beyond reasonable doubt that the accused had the tendency to act in the particular way or have the particular state of mind that the Crown alleges, you may use the fact of that particular tendency or state of mind in considering whether the accused committed one or more of the offences charged on the indictment. That is, if you were satisfied that the accused did have the particular tendency argued by the Crown then that may lend support to the evidence of the complainants who are the subject of specific charges on the indictment.
...
The evidence must not be used in any other way. It would be completely wrong to reason that, because the accused has committed one offence or has been guilty of one piece of misconduct, he is therefore generally a person of bad character and for that reason must have committed the offences. That is not the purpose of the evidence".
When later summarising the evidence led by the Crown, the trial judge referred back to the written directions several times and reminded the jury that, before they could take into account the acts alleged as tendency evidence, they needed to be satisfied of those acts beyond reasonable doubt. Some elaboration of the directions was offered in the context of BB's evidence, as follows:
"Now again ladies and gentlemen I remind you of the use that the Crown invites you to make of her evidence. The Crown argues that her evidence establishes that the accused had a tendency to act with a particular state of mind, that is that he had a sexual interest in females under the age of 16 and acted in a particular way. Here the Crown relies on her evidence of the accused touching her as she described in evidence."
The reasoning of the Court of Criminal Appeal
Following his conviction on Counts 1 to 9 and 11, the appellant appealed to the New South Wales Court of Criminal Appeal on a large number of grounds, including, in effect, that the trial judge had erred in admitting the tendency evidence under s 97 of the Evidence Act and, further or alternatively, that the trial judge had erred in failing to exclude the tendency evidence under s 101 in relation to all or some counts, because:
(a) the alleged tendency of having a sexual interest in female children under 16 years of age was so broad as to encompass the entirety of the evidence in relation to each complainant and, of itself, insufficient to have significant probative value;
(b) not every tendency alleged was relevant to all counts. In particular, the alleged tendency of the appellant to take advantage of his social and familial relationships to obtain access to female children under 16 years of age for the purpose of engaging in sexual activities with them applied only to Counts 1 to 9 and was not of significant probative value in relation to Count 10 or 11; and, conversely, the alleged tendency of utilising working relationships with females to create an opportunity to engage in sexual activities applied only to Count 11 and did not have significant probative value in relation to Counts 1 to 10; and
(c) some of the sexual conduct relied upon as tendency evidence in relation to all counts alleged acts that were different in nature from the charged offences and therefore not significantly probative of the facts in issue. In particular:
(i) the evidence of inappropriate touching in the course of working relationships which was given by LJ, CS and VR had no significant probative value in relation to any count other than Count 11;
(ii) the evidence of SH and AK that the appellant made them come into contact with his penis did not have significant probative value in relation to Count 10 or 11;
(iii) the evidence of JP, SH and AA that the appellant touched their vaginal areas did not have significant probative value in relation to Count 7, 8, 9, 10 or 11;
(iv) the evidence of JP, SH and AK of the appellant committing sexual offences against them when they were in the vicinity of another person did not have significant probative value in relation to Count 11.
The appellant also contended that the trial judge failed to analyse the tendency evidence to determine whether each witness's evidence had significant probative value and, if so, in relation to which counts, and that the trial judge's directions were inadequate in failing to identify, count by count, the aspects of each witness's evidence that were capable of having significant probative value in establishing the alleged tendency in relation to that count.
The Court of Criminal Appeal (Beazley P, Schmidt and Button JJ) rejected those contentions. Their Honours held that the trial judge was correct in his understanding of the tendency evidence and in his assessment of it as having significant probative value. They reasoned that, although there was "no doubt that the tendency evidence ... was admitted on a basis that allowed dissimilar circumstances and dissimilar acts to be used in respect of different counts", the fact of dissimilarity was not, of itself, determinative. In relation to the circumstances of the offences, it was said that:
"what was common to them all was that they represented occasions on which young females were present and the [appellant] used those occasions for the purpose of engaging in sexual activities with them".
In relation to the various acts alleged, the Court held:
"notwithstanding the dissimilarities, the conduct alleged was sexual in nature, directed towards young females, on occasions that presented themselves to the [appellant]. Underlying the similarity was that the conduct was, in effect, referable to the circumstances as they presented to the [appellant]. In short, the conduct occurred opportunistically, as and when young female persons were in the [appellant's] company."
It followed, their Honours concluded, that all of the evidence adduced as tendency evidence was correctly assessed as having significant probative value in relation to each count.
The Court also held that the trial judge had not erred in failing to exclude any of the tendency evidence under s 101 of the Evidence Act. The appellant's contentions had included that the trial judge had treated his rejection of the possibility of concoction as determinative of the question of unfair prejudice. The Court rejected that contention because the appellant's case accepted that the pre-trial publicity and the risk of concoction was integral to the assessment of the probative value of the tendency evidence, and the trial judge's conclusion that there was no real risk of contamination was well based.
The Court concluded that there was equally no deficiency in the trial judge's directions as to the use which could be made of the tendency evidence. Their Honours stated that there were two essential tendencies, "being that the [appellant] had a sexual interest in female children under the age of 16" and that he acted on that interest, albeit in various ways. The trial judge's directions to that effect were appropriate because "although it was accepted that there were some dissimilarities in the tendency evidence ... dissimilarity is not determinative".
The appellant's contentions
Before this Court, the appellant contended, as he did below, that not all of the tendencies alleged by the Crown, as particularised in the tendency notice and set out in the trial judge's directions to the jury, applied to every count. Those submissions are outlined above. Counsel for the appellant further submitted that there were significant dissimilarities between the conduct charged by some counts; that the complainants varied greatly in age from six to almost 16 years of age; and that the context and circumstances varied greatly between the counts. It was also said that the alleged tendencies were expressed with such generality as to obscure the manner in which each alleged tendency was said to arise. The appellant submitted that the trial judge and the Court of Criminal Appeal failed to, or could not, identify any particular feature of the conduct alleged by the tendency evidence that supported an inferential process of reasoning which made it more likely that the appellant would have acted as alleged. The only common feature identified was that of opportunism. There was an absence of any common or unifying modus operandi or systematic approach.
It was contended that the Court of Criminal Appeal erred in principle in supposing that it was sufficient to identify contexts in which the offending occurred that were "different, but not significantly disassociated". In the result, the tendency evidence that was admitted in relation to all counts was evidence of a tendency no more specific than to have a sexual interest in, and engage in sexual conduct with, female children under 16 years of age in a wide variety of circumstances in which the appellant found himself. Counsel for the appellant accepted that the tendency evidence was capable of establishing that the appellant had a sexual interest in female children under 16 years of age, but argued that a tendency put at such a level of generality did not rise to the threshold of "significant probative value" for the purposes of s 97. It was a tendency, it was said, that went little if at all beyond a mere disposition to commit offences of the kind charged, and the suggestion that the appellant acted opportunistically added nothing of significance by way of refinement.
"Significant probative value" in relation to tendency evidence
Section 97 of the Evidence Act provides that evidence adduced for the purpose of proving that an accused had a tendency to act in a particular way or to have a particular state of mind is inadmissible unless:
"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."
The "probative value" of evidence means the extent to which the evidence can rationally affect the assessment of the probability of the existence of a fact in issue or, put differently, the degree of its relevance. Because each count on a multiple count indictment must be considered separately and decided separately by reference only to so much of the evidence adduced as is relevant to that count, the question of whether tendency evidence could have significant probative value in relation to a particular count needs to be decided individually for each count by reference to the facts in issue for that count. It is not an exercise that may properly be undertaken by an analysis expressed in broad generalities. It requires precise particularisation of each tendency alleged and logical analysis of why the alleged tendency, if proved, would have significant probative value in relation to a fact in issue in respect of the count under consideration.
Evidence that an accused has committed an offence is not, of itself, significantly probative of the accused having committed another offence. Without more, it establishes only that the accused is the kind of person who has committed an offence. To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability that the accused committed the offence, or that the complainant is telling the truth as to the commission of the offence.
So, for example, if the previous offence were one which involved the intentional infliction of bodily harm upon the victim, the fact of the previous offence might, as a matter of common sense and experience, rationally suggest a degree of animosity on the part of the accused towards the victim that significantly affects the assessment of the probability that the accused committed a subsequent offence involving the intentional infliction of bodily injury upon the victim. If the previous offence were a sexual offence against one complainant, the fact of a previous offence might, as a matter of common sense and experience, rationally suggest a sexual attraction on the part of the accused to the complainant that significantly affects the assessment of the probability that the accused committed a subsequent sexual offence against or with that complainant. If the previous offence involved aspects of offending which were unusual or distinctive for that kind of offence, and a subsequent offence involves similar features of offending, the fact of the previous offence might, as a matter of common sense and experience, rationally be seen significantly to increase the probability that the two offences were committed by the same offender and, therefore, significantly to affect the assessment of the probability that the accused committed the subsequent offence. Equally, where a previous offence was committed by an accused in circumstances which are unusual or distinctive for that kind of offence, and the subsequent offence is committed in similar circumstances, the circumstances in which the previous offence was committed might, as a matter of common sense and experience, be seen significantly to increase the probability that the accused committed the subsequent offence. As was observed in Hoch v The Queen, in a different but related context, the probative force of similar fact evidence lay in similarities of offending, unusual features, some underlying unity, or a system or pattern that, as a matter of common sense and experience, increased the objective improbability of some event having occurred other than as alleged. The same logic applies to the question of the admissibility of tendency evidence under s 97. To repeat, therefore, the mere fact that an accused has committed a previous offence, although relevant, is not, without more, significantly probative of the accused having committed another offence.
Assessing the probative value of the tendency evidence
In this case, the tendency evidence was admitted on the basis that, when viewed in light of all of the Crown's evidence cumulatively, it could be seen to establish a tendency on the part of the appellant to have a sexual interest in female children under the age of 16 and to act on that tendency in various ways in a range of circumstances which presented opportunities to offend. The need for greater specificity was rejected by the Court of Criminal Appeal on the basis that, notwithstanding that the tendency evidence related to "dissimilar circumstances and dissimilar acts", "what was common to [all] was that they represented occasions on which young females were present and the [appellant] used those occasions for the purpose of engaging in sexual activities with them". More specifically, it was said that "the conduct alleged was sexual in nature, directed towards young females, on occasions that presented themselves to the [appellant]". The Court thus perceived the underlying similarity (although their Honours shunned use of such expressions as "the language of the common law relating to similar fact evidence") to be that "the conduct occurred opportunistically, as and when young female persons were in the [appellant's] company". On that basis, their Honours held that the evidence adduced in support of the five tendencies alleged by the Crown "was correctly assessed as having significant probative value" in relation to each count.
Inasmuch as that reasoning suggests that the commission of sexual offences against female children under the age of 16 years is so unusual that evidence of an accused having committed a sexual offence against one female child is of itself significantly probative of the accused having committed a different kind of sexual offence against another female child, it should be rejected. The commission of sexual offences by adults against children of either sex is depraved and deplorable, but, regrettably, it is anything but unusual. That reality was central to the submissions of the Victorian Director of Public Prosecutions, intervening in this Court. In truth, such offences are far more prevalent than the murder of young female children, and yet there can be no doubt that evidence that an accused had murdered a female child could not, without more, be regarded as having significant probative value in proving that the accused murdered another female child. It would require something more, such as, for example, similarities as between each child's relationship to the accused or the characteristics of each child, or the details of the actus reus or the circumstances in which the offence is alleged to have been committed, to give evidence of an accused having murdered one female child significant probative value in proving that the accused has murdered another.
Similarly, despite the disgust and loathing with which sexual offences against children are naturally to be regarded, the fact that an accused is shown to have committed a sexual offence against a female child is not, without more, significantly probative of the accused having committed a sexual offence against another female child. For the reasons already given, something more is required, such as a logically significant degree of similarity in the relationship of the accused to each complainant; a logically significant connection between the details of each offence or the circumstances in which each offence was committed; a logically significant or recognisable modus operandi or system of offending; or, otherwise, some logically significant underlying unity or commonality, howsoever described, in order rationally to conclude that evidence of the accused having committed a sexual offence against one female child significantly increases the assessment of the probability of the accused having committed a sexual offence against another.
Inasmuch as the Court of Criminal Appeal's reasoning suggests that there is something sufficient in the fact of an accused having exploited an opportunity of a female child being in his company to commit a sexual offence against that child to make evidence of that offence significantly probative of his having exploited another opportunity of another female child being in his company to commit another sexual offence, the reasoning is too broadly expressed and likely, as it did in this case, to lead to error. In the scheme of things, sexual offences against children are most commonly committed opportunistically against children in an offender's company. Consequently, the fact, of itself, that an accused is shown to have committed a sexual offence opportunistically against a female child in his company is not significantly probative of his having committed a sexual offence against another female child in his company on another occasion. Proof of one shows no more than that the accused is the kind of person who has committed an offence of that kind. Whether the commission of one such offence is significantly probative of an accused's commission of another will depend on the details and so, in result, on whether there is something more, such as a logically significant connection between the accused's exploitation of the various opportunities, or, as observed above, a logically significant degree of similarity in the accused's relationship with each complainant; or a logically significant connection between the details of each offence or the circumstances in which each was committed; or some logically significant recognisable modus operandi or system of offending; or, otherwise, some logically significant underlying unity or commonality, howsoever described, that as a matter of syllogistic reasoning renders it more likely that the complainant is telling the truth or that the accused committed the second offence. The Crown's case against the appellant, as the trial judge noted, did not identify or rely upon any particular feature of the appellant's conduct as orchestrating or manufacturing the opportunities in which the alleged offending was said to occur.
The Court of Criminal Appeal reasoned, by supposed analogy to the situation in Doyle v The Queen, that there were "two essential tendencies", that of a sexual interest in female children under 16 years of age and that of engaging in sexual conduct with female children under 16 years of age "in three different, but not significantly disassociated, contexts: of social and familial relationships; his daughter's relationships with her young friends; and the work environment". So to reason was erroneous. The second of the identified tendencies amounted to dividing up the general tendency said to be relevant to all counts (that of a sexual interest in female children under 16 years of age) into the constituent elements of that tendency and then treating each constituent element as if it were a separate tendency of significant probative value in relation to all counts. It was not.
The analogy to Doyle was also misplaced. In Doyle, there was a single relevant tendency on the part of the accused to exploit his position of authority over his young male employees to obtain access to them for the purpose of engaging in sexual activities and thereby gratifying his sexual interest in young male persons. Assuming the jury were satisfied of the existence of the alleged tendency, its existence had significant probative value in proving that the accused had committed another of the charged offences against young male employees by exploiting his position of authority over the employee in order to gain access to, and thereby engage in the alleged sexual activity with, a young male employee.
Essentially the same reasoning applied in R v PWD, to which the Court of Criminal Appeal also referred. There, the single relevant tendency was of a school music teacher to use his position as such to select and encourage school boarders, "under the guise of offering solace to boys who were vulnerable" and who reported feelings of isolation and homesickness, to engage in sexual activities with him in order to gratify his sexual interest in male children. In effect, each of PWD and Doyle, and cases like them, involved an underlying common course of conduct, or modus operandi, comprised of the constituent elements of (1) taking advantage of a particular position of authority or influence to obtain access to children under the accused's authority or influence in order to gratify (2) a sexual interest on the part of the accused in children by (3) committing sexual offences against children; and, properly understood, it was the existence of that underlying course of conduct, comprised of those three elements, together with its employment in the case of each of the charged offences, that provided a logical unity to the tendency evidence which significantly affected the rational assessment of the probability that the accused was guilty of each of the alleged offences.
By contrast, for an offender to have a sexual interest in children, or even to be shown to have acted on it on occasion by taking advantage of a position of authority or influence to engage in sexual activities with children under his or her authority or influence, would not, of itself, be significantly probative of another offence alleged to have been committed in different circumstances which did not involve taking advantage of a position of authority or influence. Nor would the fact that an accused had in the past selected children of some vulnerability as part of a pattern of exploiting a position of authority to engage in sexual activities with children, of itself, be significantly probative of another offence involving a child of some vulnerability where that offence did not involve taking advantage of a position of authority or influence. To allege a tendency to select victims of some vulnerability is not significantly probative of such an offence because, in one respect or another, all children are vulnerable to sexual exploitation and all sexual offences against children involve taking advantage of that vulnerability.
What the foregoing serves to show, therefore, is that none of the individual constituent elements of the underlying course of conduct identified in Doyle and PWD would, if disaggregated, be of itself significantly probative of charged offences against other complainants. What made the identified modus operandi significantly probative of the alleged offences in those cases was that, assuming an absence of concoction or contamination, the fact that the accused was alleged to have committed each offence in the same or a substantially similar way made it significantly more probable that each complainant was telling the truth in alleging that the accused offended against him in the manner charged. That reasoning accords logically with the probability reasoning applied by this Court in BRS v The Queen. The fact that an accused may have offended against one or even some children using that modus operandi would not, of itself, have made it significantly more probable that another child was telling the truth in alleging that the accused had committed a sexual offence against him or her in different circumstances involving a different modus operandi.
Counts 1 to 6
So it is in this case. The circumstances of each complainant and the circumstances of the offending alleged in Counts 1 to 6 were such as to establish, if accepted, a tendency on the part of the appellant to take advantage of a position of custody, authority or control over female children staying in his home or where he was present in their homes to gratify his sexual interest in female children by committing essentially similar kinds of sexual offences against them. In effect, the evidence on those counts established a modus operandi which, assuming an absence of concoction or contamination between the complainants, rendered it significantly more probable that each of JP and SH was telling the truth in what she deposed as to the appellant's offending against her. Counsel for the appellant accepted in this Court that there were "operative similarities" in the offending alleged in Counts 1 to 6.
Counts 7, 8 and 9
Counts 7, 8 and 9 are more problematic. Because they allege offences against the same complainant, evidence in relation to each of those counts was cross-admissible in relation to each of the other of those counts. But, although the commission of the offences comprised in Counts 1 to 6 would render it more probable that the appellant committed the offences alleged in Counts 7 to 9 since each of Counts 1 to 9 involved taking advantage of a position of custody, authority or control for the purpose of committing sexual offences against female children the nature and circumstances of the offending comprised in Counts 1 to 6 were significantly different from those of Counts 7 to 9. It might not be possible for this Court to identify error in a conclusion that there was sufficient similarity to render evidence of the former relevant to proof of the latter, and vice versa, and thereby that the evidence was not excluded by s 97. But it does not appear that there was sufficient similarity, or other underlying unity, about that evidence to conclude, for the purposes of s 101, that its probative value outweighed its potential prejudicial effect, namely, that the jury would reason impermissibly that, because the appellant was the kind of person who would commit offences of the kind alleged in Counts 1 to 6, he should be convicted of Counts 7 to 9; and vice versa.
Counts 10 and 11
It is clear, however, that evidence that the appellant may have committed the offences comprised in Counts 1 to 6, or indeed, for that matter, in Counts 7 to 9, did not render it significantly more probable that the appellant committed offences in the very different circumstances alleged in Counts 10 and 11; and that evidence that the appellant may have committed the offences comprised in Counts 10 and 11 did not render it significantly more probable that the appellant committed the offences comprised in Counts 1 to 9. The acts alleged to comprise Count 10 occurred in the context of a reciprocated relationship, and those alleged in Count 11 were dissimilar in nature (at least in respect of Counts 1 to 6, 9 and 10) and occurred outside a domestic setting. Equally, although the evidence of LJ, CS and VR, if accepted, may have had significant probative value in proving the offence comprised in Count 11, given the very different circumstances of offending, the appellant's different relationship to the complainants and the different nature of the offending as between Count 11 and Counts 1 to 10, the evidence of LJ, CS and VR would not have significantly increased the probability that the appellant committed any of the other offences. So much was acknowledged in the trial judge's treatment of that evidence. For similar reasons, although the evidence of BB and AA may have had significant probative value in relation to proof of the offences comprised in Counts 1 to 9, it did not significantly increase the probability of the appellant having committed the offences comprised in Counts 10 and 11; and, although the evidence of VOD that the appellant exposed his penis may have had significant probative value in relation to proof of Count 11, it did not significantly increase the probability of the appellant having committed the offences comprised in Counts 1 to 9 or Count 10.
Crown's alternative argument
It was suggested by the Crown in the course of argument that, even if a sexual interest in female children under 16 years of age and a disposition to act on that interest were not significantly probative of the charged offences within the meaning of s 97, there were in fact common features of the appellant's alleged conduct that rendered the evidence relating to each count significantly probative of each other count. Those features were said to be that each offence involved risk-taking; that the offending was "brazen" in the sense that it was committed in places where there was a high risk of being caught; that, in some cases, the offending was comprised of fleeting or furtive acts of touching; and, in other cases, that the offending involved the exposure of the appellant's penis. In fact, however, the identification of those features serves further to demonstrate not only the significant differences between the alleged acts of offending and, therefore, the consequent illogicality of conceiving of the evidence relating to each count as significantly probative of all counts, but also the difficulty faced by the jury in considering the admitted evidence and seeking to decide each count separately.
Axiomatically, all criminal behaviour involves risk-taking and sexual offending in particular involves a very great degree of risk-taking. Consequently, to say that evidence of one offence is significantly probative of another simply because each involves risk-taking is facile. Granted, the alleged offending in relation to Counts 1, 3 to 8 and 11 was "brazen", but on any view it was much less so in relation to Counts 2, 9 and 10. Similarly, while Counts 7 to 9 and some of the evidence of uncharged acts involved fleeting or furtive touching, the acts alleged to comprise Counts 1 to 6 and 10 were more prolonged and Count 11 did not involve any touching at all. And while Counts 3 to 8 and 11 involved exposure of the appellant's penis, only Counts 7 and 8 (and, arguably, Count 11 also) involved exposure in a public place (therefore comprising what was described in oral argument as exhibitionist conduct), and there was no exposure of the appellant's penis alleged in relation to Count 1, 2, 9 or 10.
Conclusion as to probative value
It should be concluded that the trial judge and the Court of Criminal Appeal were in error in holding that: the evidence of EE and SM was admissible in proof of the offences comprised in Counts 1 to 9; the evidence of JP, SH, AK, BB and AA was admissible in proof of the offences comprised in Counts 10 and 11; and the evidence of VOD was admissible in proof of the offences comprised in Counts 1 to 10. There was further error to the extent that the jury were not directed that they could not use the evidence of LJ, CS and VR in proof of Counts 1 to 10.
Directions to the jury
The appellant did not contend in this Court that the directions given to the jury were inadequate, but rather that the inadmissibility of the evidence admitted as tendency evidence became apparent from the manner in which the jury were directed as to the use of that evidence. It should be observed, however, that the directions were both wrong and inadequate. They may well have followed the Criminal Trial Bench Book, as the Court of Criminal Appeal observed, but they failed to engage with the task of explaining to the jury, in relation to each count, in terms which the jury would have been likely to understand, what use could and could not be made of each witness's evidence in relation to the proof of each count. Contrary to the holding of the Court of Criminal Appeal, it was not sufficient to discharge that responsibility for the trial judge to tell the jury that they must be "concerned with the particular and precise occasions alleged by each of the complainants in relation to each count".
There was, too, a further problem with the directions. Even if the jury had been properly directed as to which of each witness's evidence was admissible in proof of each count, or had gleaned as much from what they were told, it was highly likely that the jury would have been incapable of adhering to the directions. That difficulty arises from the inclusion on one indictment of a plethora of counts involving disparate sexual offences against disparate classes of complainants in disparate circumstances, with the consequence that, while some of the evidence admissible in relation to some counts was also admissible in relation to some other counts, a considerable percentage of it was not. As a result, even if the jury had been properly directed as to which parts of the evidence were admissible in relation to each count and which parts were not, the process of reasoning conscientiously in accordance with those directions would have been so complex as to result in a high probability of the jury simply dealing with all of the evidence as a job lot relevant to each and every count; a process which in this case was likely to result in a conclusion that the appellant was, generally, a sexual deviant. In reality, the only way in which that risk could have been avoided would have been to sever the indictment and try Counts 1 to 9 separately from Counts 10 and 11. Even then, the evidence admissible in relation to Count 10 would not have been cross-admissible in relation to Count 11, or vice versa. But, at least, with a trial of only two counts, it might more safely have been assumed that the jury could and would comply with directions not to treat the evidence relevant to one count as relevant to the other.
Reasons not to depart from the orthodox approach
What I have written thus far is orthodox in that it reflects the understanding and application of s 97 that until relatively recently has been followed in most decisions of Australian trial judges and courts of criminal appeal, including the New South Wales Court of Criminal Appeal in, at least, Sokolowskyj v The Queen, Saoud v The Queen and El-Haddad v The Queen. It is, however, opposed to the approach to the application of s 97 more lately preferred by some judges of the New South Wales Court of Criminal Appeal and by that Court in this case. Because of the fundamental importance of the issue, it is appropriate that I explain in more detail why the orthodox approach should be adhered to.
Orthodox approach
The orthodox approach to the application of s 97 is grounded in recognition of the dangers that attend the receipt of tendency evidence. This is the same concern as informed the common law rules for the exclusion of similar fact and other propensity evidence. Section 97 was enacted against the background of the common law exclusionary rules for similar fact and other propensity evidence and, for that reason, is to be read in light of those rules. Certainly, it must now be accepted that s 97 "manifests an intention to state the principles comprehensively and afresh" and, therefore, that it is the language of s 97 that determines the manner in which tendency evidence is to be treated. But the process of reasoning necessary to determine whether evidence sought to be tendered as tendency evidence is capable of having significant probative value within the meaning of s 97 is, logically and necessarily, the same process of probability reasoning that was applied at common law. As Simpson J rightly said on behalf of the New South Wales Court of Criminal Appeal in R v Fletcher:
"Of course, decisions such as Hoch no longer govern the admissibility of evidence of tendency (see Ellis). But that does not necessarily render cases such as Hoch irrelevant. There is no reason why the reasoning that led the High Court to accept the admissibility of similar fact evidence in appropriate cases before the enactment of the Evidence Act should not guide the reasoning process in the evaluation of whether tendered evidence is capable of having, or would have, significant probative value."
It is also to be observed that the orthodox approach to the application of s 97 was established in a series of cases in New South Wales commencing shortly after the introduction of the provision in 1995. The courts recognised that, in order for tendency evidence to be truly of significant probative value in proof of acts charged, it was necessary as a matter of logical probability reasoning to be able to identify similarities or other connections between that evidence and the acts charged. The position was complicated by the view taken by some judges that, in light of Pfennig v The Queen, it was necessary, at least for the purposes of s 101 of the Evidence Act, that tendency evidence be unquestionably at odds with any reasonable possibility consistent with innocence. That idea was rejected in R v Ellis. But nothing said in Ellis altered the logic of the probability reasoning which is the raison d'être of tendency evidence. Accordingly, judges in New South Wales rightly continued to describe the logically requisite touchstone of significant probative value in terms of similarities and other compelling connections between evidence sought to be admitted as tendency evidence and acts charged.
By way of example, R v Ford, which is sometimes, but wrongly, identified as a point of departure from the orthodox approach to the application of s 97, accepted that evidence admitted as tendency evidence had significant probative value where that evidence showed a pattern of offending or modus operandi comprised of the accused sexually assaulting young women who: (1) had stayed over at the accused's house after attending a party there, (2) had consumed a significant amount of alcohol and (3) were asleep, in circumstances where (4) there was a risk of the accused's offending being discovered by others. Campbell JA emphasised that the tendency evidence was of similar offending that was "fairly unusual". In BP v The Queen, the significant probative value of the evidence admitted as tendency evidence was found to inhere in the relatively unusual phenomenon of an accused committing similar sexual offences against female lineal descendants. In DAO v The Queen, Simpson J found no error in the trial judge's reasoning that the significant probative value of the tendency evidence admitted in that case lay in demonstrating a modus operandi or pattern engaged in by the accused, as a priest, in targeting and grooming possible victims to engage in sexual misconduct with him.
Similarly, as has been seen, in PWD it was held that the significant probative value of evidence of a variety of different sexual offences was that each of them had been committed according to a pattern of offending that, assuming absence of concoction and contamination, made it significantly more probable that each complainant was telling the truth in what he alleged. Likewise in Doyle, which has also been referred to, the significant probative value of the evidence sought to be tendered as tendency evidence was identified as the pattern of behaviour, evident in each offence, that comprised the accused exploiting his position of authority over his young male employees to obtain access to them and thereby gratify his sexual interest in young males. The significant probative value of that evidence was that, assuming absence of concoction and contamination, the fact that each complainant could independently attest to having been subjected to the same modus operandi or pattern of offending significantly increased the probability that each of them was telling the truth. These cases are, therefore, properly to be understood as specific to the particular tendency evidence in each of those cases and the probability reasoning which it supported in the particular circumstances of that case.
In Sokolowskyj, the Court of Criminal Appeal held that, on a charge of having indecently assaulted an eight year old complainant in the public bathroom of a shopping centre, evidence said to establish that the accused had a tendency "to have sexual urges and to act on them in public in circumstances where there was a reasonable likelihood of detection" was not significantly probative of the offence charged because of the large qualitative distinction between, on the one hand, the offences of exhibitionism disclosed by the tendency evidence, which involved either public masturbation or exposure of the accused's genitals, and, on the other, engaging in non-consensual, physical contact with the genitals of an underage complainant. As Hoeben CJ at CL observed, in relation to the actions on which the proffered tendency evidence was based:
"[P]ublic display was an essential ingredient and the sexual gratification or thrill was apparently achieved by such public exposure of his genitals to women. The offence under consideration was very different. The appellant is said to have taken steps to prevent discovery by latching the change room door and by warning the complainant not to tell anyone, otherwise he would take retributive action against her family.
... In assessing the extent of the probative value of the evidence, the focus had to be on the fact in issue to which the evidence was said to logically relate. ... [T]he focus of the prosecution was on generalised sexual activity, which involved neither an assault nor a child. The focus of the tendency evidence should have been on the logical link to the elements of the offence charged, in this case involving both an assault and a child victim."
More recently, in Saoud, Basten JA distinguished aspects of an accused's conduct disclosed by evidence sought to be tendered as tendency evidence that were "largely unremarkable" from those that were significantly probative of the tendency alleged. Importantly, as his Honour observed:
"Tendency evidence can take various forms; it is not necessarily based on the conduct of the accused on separate occasions. On the other hand, when it is there will be an inherent element of similar behaviour in order to demonstrate a tendency, absent which the section is not engaged."
And later:
"'[T]endency' evidence will usually depend upon establishing similarities in a course of conduct, even though the section does not refer (by contrast with s 98) to elements of similarity. That inference is inevitable, because that which is excluded is evidence that a person has or had a tendency to act in a particular way, or to have a particular state of mind. Evidence of conduct having that effect will almost inevitably require degrees of similarity, although the nature of the similarities will depend very much on the circumstances of the case."
Critics of the orthodox approach to the application of s 97 denounce it as improperly substituting the complexities of common law conceptions for the plain and ordinary terms of the provision. They say that the evident purpose of the provision is to create a simple and less demanding criterion of admissibility, and that it is the duty of the court to give the provision its full effect. But the difficulty with shibboleths of that order is that the s 97 criterion of admissibility is not simple. Doubtless, it is the duty of the court to give effect to statutes according to their terms and not to graft on additional requirements. And, possibly, it is true to say, as Basten JA observed in Saoud, that to continue to describe the relevant criteria of significant probative value in common law terms, such as similarity of offending or circumstances of offending, modus operandi or other underlying unity, may tend to distract some trial judges from looking for relevant indications of significant probative value. But, whatever nomenclature is considered preferable, and it is to be observed that nothing better has yet emerged, where the Parliament enacts aspirational legislation, like s 97 of the Evidence Act, in protean, open-textured terms like "significant probative value", it is up to the court to formulate rules that define its meaning and facilitate consistency in its application; and, for that purpose, it is appropriate to seek guidance in the common law. As Leeming JA recently observed on behalf of the New South Wales Court of Criminal Appeal in El-Haddad:
"The statutory text did not emerge from a vacuum. Where as here the legislative text is patently open-textured, the immediate context namely, its replacement of common law rules restricting the use of a particular type of evidence is especially apt to illuminate its legal meaning."
Furthermore, such rules having been propounded in the form of the orthodox approach to the application of s 97, and thereafter the legislation having been re-enacted in the same terms, as it was in New South Wales in 2007 and by the Commonwealth in 2008, the presumption is that the Parliament expects the orthodox approach to be adhered to. It is then the duty of the court to do just that.
Legislative background
Until the enactment in 1995 of the uniform evidence legislation, the principal Act governing evidence in New South Wales was the Evidence Act 1898 (NSW). The Evidence Act 1898 made no provision for tendency evidence it left that to the common law and, in the New South Wales Law Reform Commission's 1978 Working Paper on Evidence of Disposition, the Commission stated, on the basis of its review of the body of common law authority relating to the admissibility of what is now known as tendency evidence, that, although it supported the incorporation of the relevant rules into statute, it did not support any reform "substantially widening or narrowing" the rules. Of the common law relating to similar fact evidence, the Commission said: "[w]e think it is neither too inclusionary nor too exclusionary".
In July 1979, the then Commonwealth Attorney-General referred the Australian Law Reform Commission to review:
"the laws of evidence applicable in proceedings in Federal Courts and the Courts of the Territories with a view to producing a wholly comprehensive law of evidence based on concepts appropriate to current conditions and anticipated requirements".
Six years later, in 1985, the Commission released its Interim Report.
Among other things, the Interim Report dealt with the common law's concern with the potential for jurors to overestimate the value of and to be improperly influenced by tendency evidence. It reprised the New South Wales Law Reform Commission's concern about substantially altering the common law rules. The Commission found that the common law's disdain of tendency evidence was supported by a substantial body of psychological research. That research showed behaviour tends to be highly dependent on situational factors and not, as previously postulated, on personality traits, and that the ability to predict future behaviour from past behaviour, therefore, depends on the similarity of situations. But, as the research also established, people are inclined to attribute the behaviour of others to enduring personality traits and to underestimate the role of situational factors. People also tend to infer personality traits from limited knowledge of a person (called the "halo effect") and thereafter fail to discriminate between diverse behaviours. Jurors are, too, less reluctant to convict an accused if informed of his or her previous misconduct because they feel either that the gravity of their decision is lessened or that there is some basis for punishment, even if it is not established that the accused committed the crime charged. The Commission thus concluded that:
"The research confirms the need to maintain strict controls on evidence of character or conduct and for such evidence to be admitted only in exceptional circumstances. It demonstrates, however, that the emphasis of the law should be changed. For the sake of accurate fact-finding, fairness and the saving of time and cost, the law should maximise the probative value of the evidence it receives by generally limiting it to evidence of conduct occurring in circumstances similar to those in question. Only for special policy reasons should other evidence of character or conduct be received."
The draft legislation proposed by the Interim Report was shaped accordingly. Clause 91 relevantly provided that evidence that a person "did a particular act or had a particular state of mind" was not admissible to prove that the person has or had a tendency to do a similar act or to have a similar state of mind unless it were reasonably open to find that "all the acts or states of mind, and the circumstances in which they were done or existed, [were] substantially and relevantly similar". Clause 93 relevantly provided that, in criminal proceedings, evidence of the kind referred to in cl 91 was not admissible to prove a tendency to do a similar act or to have a particular state of mind unless the evidence had "substantial probative value". Clause 93(3) provided that the probative value of the evidence was to be determined by the court with regard to:
"(a) the nature and extent of the similarity;
(b) the extent to which the act or state of mind to which the evidence relates is unusual;
(c) in the case of evidence of a state of mind the extent to which the state of mind is unusual or occurs infrequently; and
(d) in the case of evidence of an act
(i) the likelihood that the defendant would have repeated the act;
(ii) the number of times on which similar acts have been done; and
(iii) the period that has elapsed between the time when the act was done and the time when the defendant is alleged to have done the act that the evidence is adduced to prove."
In 1987, the Australian Law Reform Commission released its final Report, to which an amended draft bill was annexed. What had appeared in cl 91 of the previous draft now appeared in cll 86 and 87 of the amended draft in the following form:
"Exclusion of tendency evidence
86. Evidence of the character, reputation or conduct of a person, or of 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.
...
Exception: conduct (including of accused) to prove tendency
87. Where there is a question whether a person did a particular act or had a particular state of mind and it is reasonably open to find that
(a) the person did some other particular act or had some other particular state of mind, respectively; and
(b) all the acts or states of mind, respectively, and the circumstances in which they were done or existed, are substantially and relevantly similar,
the tendency rule does not prevent the admission or use of evidence that the person did the other act or had the other state of mind, respectively."
Clause 89 of the amended draft bill provided for "further protections" in criminal proceedings and was, in substance, expressed in identical terms to those of cl 93 in the previous draft.
In 1988, the New South Wales Law Reform Commission released its response to the Australian Law Reform Commission's Report and recommended the adoption of the amended draft bill, subject to minor amendments. In March 1991, an Evidence Bill was introduced into the New South Wales Parliament ("the NSW Bill") in substantively the same form as was proposed by the New South Wales Law Reform Commission, and therefore also by the Australian Law Reform Commission. What had been cl 86 of the Australian Law Reform Commission's amended draft bill was included as cl 83 of the NSW Bill. What had been cl 87 was reproduced in cl 84 of the NSW Bill and the "further protections" of cl 89 were included in cl 86. In the second reading speech, it was said that the purpose of introducing the NSW Bill was "to expose it for public consideration and comment".
In October 1991, an Evidence Bill was introduced into the Commonwealth Parliament ("the Commonwealth Bill") with provisions that differed in some relevant respects from those of the NSW Bill, and therefore also from the amended draft bill recommended by the Australian Law Reform Commission in 1987. Clause 103 of the Commonwealth Bill set out the exclusionary rule in similar terms to cl 83 of the NSW Bill, but eschewed any requirement that, for tendency evidence to be admissible in criminal proceedings, it must have "substantial probative value", a requirement found in cl 86(2) of the NSW Bill. Additionally, in place of the list of considerations relevant to the assessment of probative value that had appeared in cl 86(4) of the NSW Bill and cl 89(3) of the Australian Law Reform Commission's amended draft bill, cl 105 of the Commonwealth Bill provided that in criminal proceedings:
"(2) ... tendency evidence is not to be adduced by the prosecution unless:
(a) the evidence tends to prove a fact in issue, otherwise than merely by tending to prove:
(i) the commission of an offence other than the offence with which the defendant is charged; or
(ii) that the defendant has a predisposition to commit an offence; and
(b) the probative value of the evidence outweighs its merely prejudicial effect on the defendant.
(3) ... tendency evidence is not to be adduced by the prosecution if:
(a) the evidence concerns the occurrence of 2 or more events; and
(b) the defendant disputes the occurrence of those events; and
(c) there is a rational view of the evidence that is inconsistent with the defendant being found guilty of any offence with which he or she is charged in the proceeding."
It is to be observed, however, that, far from being a fresh or novel approach to tendency evidence, cl 105(2)(b) in effect reflected the common law's Christie discretion and cl 105(3)(c) embodied the essence of the common law rule of exclusion of propensity evidence propounded in Pfennig. In the second reading speech introducing the Commonwealth Bill, it was stated that both it and the NSW Bill would provide "a basis for consideration" of a uniform evidence law.
In 1995, the Commonwealth Parliament enacted the Evidence Act 1995 (Cth) and the New South Wales Parliament enacted the Evidence Act 1995 (NSW) in the same terms. Significantly, s 97 of the Acts provided for "[t]he tendency rule" in terms which required that, to be admissible, tendency evidence must have significant probative value. The single stipulation of s 97(1)(b) was that:
"the court thinks that the evidence would not, 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." (emphasis added)
Section 101 of the Acts replaced the "further restrictions" in cl 105 of the Commonwealth Bill with a single stipulation that tendency evidence would be inadmissible in criminal proceedings unless:
"the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant." (emphasis added)
The change in s 97 from the list of criteria for the assessment of probative value (as had been included in cl 86 of the NSW Bill) to the test of what the court thinks would constitute significant probative value appears to have been calculated to afford the court greater scope for the development of relevant criteria. But the change in s 101, from the requirements that the probative value of the evidence exceed its prejudicial effect and that there be no rational view of the evidence consistent with innocence (as had been included in cl 105 of the Commonwealth Bill) to the requirement that the probative value of the evidence substantially outweigh any prejudicial effect, presents as having been designed to replace the combined effect of the Christie discretion and the exclusionary rule from Pfennig with something very close to the terms of the more flexible common law rule of exclusion propounded by the House of Lords in Director of Public Prosecutions v P, advocated by McHugh J in Pfennig, and subsequently adopted in Victoria in the form of s 398A of the Crimes Act 1958 (Vic). And that is hardly surprising in view of the Commissioners and consultants who were involved in the drafting of the legislation proposed by the Australian Law Reform Commission and the individuals involved with the Senate Standing Committee on Legal and Constitutional Affairs that considered the Act before its enactment. They included eminent criminal judges and counsel who were thoroughly familiar with those developments. Moreover, at the time of enactment of the uniform legislation in 1995, there was already a body of case law in England and Australia regarding the application of those terms. Consistently, therefore, with the precept that, where Parliament enacts legislation using words that have been judicially construed, Parliament is presumed to intend them to have that effect, the orthodox approach to the application of s 97 rightly built on that case law.
In 2004, the Australian Law Reform Commission, in conjunction with the New South Wales Law Reform Commission, undertook a review of the uniform evidence legislation. In the associated Issues Paper, the Commission observed that the "additional requirement in criminal proceedings that the probative value of the evidence substantially outweigh the prejudicial effect it may have ... is a major impediment to the admission of tendency and coincidence evidence of child witnesses" in light of allegations of concoction. The Issues Paper posed the questions of whether s 101 should be amended to provide that, where the probative value of tendency evidence substantially outweighs its possible prejudicial effect, it must not be ruled inadmissible merely because it may be the result of concoction and whether there should be special provisions applying to tendency evidence where a series of sexual offences are alleged by child, or any, complainants. In the subsequent Report, the Commission reiterated concerns about tendency evidence and noted that a review of psychological research conducted since its 1985 Interim Report confirmed, and in some instances strengthened, the basis for the Commission's original recommendation that the admission of tendency evidence should be strictly controlled. Consequently, the Commission did not recommend that any changes be made to the uniform evidence legislation in respect of tendency evidence and, apart from turning the criteria of admissibility from a negative stipulation into a positive requirement, none have since been made. In those circumstances, it must be taken that the established orthodox approach to s 97, which was evident in New South Wales courts particularly in the decade after the enactment of s 97, did accord with the operation of the section intended by Parliament.
No justification for lowering the bar
Despite the legislature's implicit approval of that orthodox approach, the decision of the Court of Criminal Appeal in this case amounts to saying that, notwithstanding the absence of any particular similarity in the offending itself or the circumstances of the offending, or any other feature of underlying unity, howsoever expressed, evidence that an accused has committed acts of sexual misconduct against females ranging in age from six years (in the case of SH) to mid-twenties (in the case of LJ) in a variety of different circumstances establishes a tendency to commit sexual offences against female children as and when an opportunity presents, and that the existence of that tendency is of such significant probative value as to make evidence of all of the alleged sexual misconduct admissible as tendency evidence in proof of each charged offence. Until now, no other Australian decision has gone so far in lowering the bar of admissibility, and, assuming it remains essential to our system of criminal justice that it is better that ten guilty persons should escape than one innocent person suffer, there is no justification in principle or as a matter of statutory interpretation for so lowering the bar.
According to the Crown, the decision of the Court of Criminal Appeal in this case derives support from an earlier decision of the New South Wales Court of Criminal Appeal in BC v The Queen. In that case, the Court held that it was permissible to tender evidence of an escalating succession of sexual offences alleged to have been committed by the accused between the ages of 11 and 28 in proof of each of the alleged offences. In the Crown's submission, BC shows that it is open to the Crown to aggregate evidence of different sexual misconduct alleged to have occurred over a period of years as a pattern of behaviour which establishes a tendency to commit sexual offences and that such a tendency is of sufficient significant probative value to render it admissible under s 97 in proof of each alleged sexual offence.
There are two difficulties with that argument. The first, which is sufficient reason in itself to reject the argument, is that, properly understood, BC was decided, according to the orthodox approach to the application of s 97, on the basis that the evidence established "a pattern of behaviour, modus operandi, system or pattern and common threads ... in the [accused's] conduct". As Beech‑Jones J observed:
"The allegations had a number of common or similar features, namely the young age at which some of the complainants were first abused and then abused later when they were older, the complainants were each known to the [accused], the above occurred in a context where he was trusted to exercise some form of supervision of them, and he did not force himself on the complainants but sought their consent or made a request. True it is that not all features were present with all complainants but that was not necessary."
The same orthodox approach leads to the conclusion expressed earlier in these reasons that the evidence relating to Counts 1 to 6, including the evidence of BB and AA, was cross-admissible as between Counts 1 to 6 and that the evidence relating to Counts 7 to 9, again including the evidence of BB and AA, was cross-admissible as between Counts 7 to 9. Non constat, however, that, in the absence of a pattern of behaviour, modus operandi or "common threads", it is permissible to aggregate a succession of disparate sexual offences alleged to have been committed over a period of years in proof of some general tendency towards sexual misconduct.
As was earlier recorded, the Crown contended that there were some common features of the appellant's offending in this case, including furtive touching of female children's breasts and vaginal areas; the exposure of his penis; the causing of contact between his penis and female children; and sexual misconduct in the vicinity of other persons. On the Crown's submission, it did not matter that these features were relevant to only some counts. It did not matter that the age of some complainants varied markedly from some of the others, or that the offences alleged to have been committed against some of the complainants were markedly different from the offences alleged to have been committed against some of the others, or that the circumstances in which some of the alleged offences were committed were markedly different from the circumstances of offending for some of the others. In particular, it was said, it did not matter that the alleged act of making a female child come into contact with the appellant's penis in the case of Count 10 occurred while standing kissing the 15 year old EE, but in the case of Count 9 occurred while positioning the head of the nine year old AK on his lap in order to administer medicated ear drops at her mother's request. The significance of such differences in effect evaporated, it was contended, once the evidence of each of the alleged offences and uncharged acts was aggregated. So viewed, it was submitted, the totality of the evidence established a pattern of the appellant satiating a perverted sexual interest in female children, albeit doing so by different kinds of sexual offences, at different times and places, in different circumstances, as and when opportunities arose, which the appellant neither orchestrated nor arranged.
That contention bespeaks the second difficulty with the Crown's argument, which is the profundity of its consequences. If accepted, it would mean that, whenever an accused is alleged to have committed a succession of different sexual offences against a succession of children, in different circumstances, each having no more in common with the others than that each is committed opportunistically, evidence of all of the alleged offences is admissible in proof of each of them on the basis that, while none taken alone establishes anything of significant probative value in relation to any of the others, together all of them establish a tendency to commit sexual offences against children, and that is to be taken as being of significant probative value in relation to the proof of each of the offences on the basis that a tendency to commit sexual offences makes it significantly more likely that the accused has committed the sexual offence with which he or she is charged.
If that is to be regarded as acceptable, what then is to be the limit to the admission of tendency evidence? Does it, for example, follow that, where an accused is charged with a dozen counts of theft alleged to have been committed against as many female victims ranging between six and 24 years of age, each in different circumstances, by different means and for different amounts, together those allegations represent such a pattern of interconnected behaviour as to establish a tendency to commit theft from young female victims that renders the entirety of that evidence admissible in proof of each count? Presumably not, but, if not, what is the difference?
The answer which the Crown and the Victorian Director of Public Prosecutions offered in the course of argument was that sexual offences of the kind in issue here are different because a tendency to commit sexual offences against children is such an exceptional phenomenon as to make evidence of one such offence significantly probative of an offender having committed another. That answer is not persuasive. To adopt and adapt the reasoning of Simpson J in Fletcher:
"While it may be tempting to think, for example, that evidence of a sexual attraction to [female children] has probative value in a case where the allegations are, as here, of sexual misconduct with [female children], an examination must be made of the nature of the sexual misconduct alleged and the degree to which it has similarities with the tendency evidence proffered. There will be cases where the similarities are so overwhelming as to amount to what, in pre-Evidence Act days was called 'similar fact' evidence, showing 'a striking similarity' between the acts alleged; and there will be cases where the similarities are of so little moment as to render the evidence probative of nothing."
Admittedly, and obviously, the commission of sexual offences against children is unusual by the standards of ordinary decent people. But it is not unusual in comparison to other crimes. As the Victorian Director of Public Prosecutions submitted, the bulk of the work of criminal courts in this country is devoted to dealing with sexual offences and the bulk of those offences are sexual offences against children. And, as is apparent from the psychological studies which the Australia Law Reform Commission emphasised in 1985 and 2005, the fact of sexual offending is not, of itself, a sound basis for the prediction of further sexual offending. The probability of further offending depends on circumstantial and situational considerations of the kind that inform the orthodox application of s 97.
Certainly, Parliament could enact legislation that treats disparate sexual offences committed in different circumstances at different times in different places against different children as significantly probative of the commission of each other. Given the very extensive publicity and information which is nowadays devoted to sexual offences against children, it may be that Parliament will one day choose to do so. But, for the reasons already stated, it should not be thought that that was Parliament's purpose when enacting s 97. And, it is to be remembered that, despite the questions posed in the course of the Australian Law Reform Commission's review of the uniform evidence legislation and more recent proposals for reform, Parliament has never made any substantive amendment to s 97 for the purpose of ensuring greater admissibility than the orthodox approach allows. Consistently, therefore, with the dialogue between the courts and Parliament that is manifest in the rules of statutory construction, it would be wrong to suppose that it had.
Velkoski and the position in Victoria
Finally, for the sake of completeness, it should be mentioned that, in the course of argument, counsel for the appellant called in aid comments by the Victorian Court of Appeal in Velkoski v The Queen that, although the New South Wales Court of Criminal Appeal and the Victorian Court of Appeal were for some time at one in following the orthodox approach to the application of s 97, the New South Wales Court of Criminal Appeal has in more recent decisions approved the admission of evidence as tendency evidence that, by the standards of the orthodox approach to the application of s 97, did not rise to the level of significant probative value. Counsel for the appellant submitted that Velkoski lends support to the contention that the Court of Criminal Appeal was in error in this case in its treatment of the tendency evidence.
The Victorian Director of Public Prosecutions, in support of the Crown, submitted to the contrary that Velkoski was wrongly decided, and should not be endorsed by this Court, because it required a similarity or connection between tendency evidence and the "operative features" of the charged acts.
If Velkoski were properly to be read as requiring a similarity or connection between tendency evidence and the "operative features" of charged acts, it would go too far. As has been explained, what is required is a logically significant connection between either the acts in question, or the circumstances of the offending, or the relationship of the accused to the complainants, or some other aspect of the factual matrix that as a matter of syllogistic reasoning affects an assessment of the probability of the existence of a fact in issue. But whether or not Velkoski should be read as going too far, it does assist in illuminating the illogic of departing from the orthodox approach to the application of s 97. Velkoski emphasises that to show only that an accused has a sexual interest in a number of complainants and is willing to act upon it as occasion presents is to show no more than that the accused is the type of person who is disposed to and does commit sexual offences. That is no more than a mere propensity to commit sexual offences and, as has been shown, it would not, without more, be significantly probative of the accused having committed another sexual offence.
Counsel for the Crown contended that the real error in Velkoski was that the Victorian Court of Appeal ignored the statutory language of s 97. In his submission, evidence which demonstrates that an accused has a sexual attraction to female children under 16 years of age and is disposed to act upon it as occasion presents is evidence which is highly probative of the accused having a "particular state of mind" and so, therefore, plainly admissible in accordance with the words of the section. By requiring anything more to render such evidence admissible, it was submitted, the orthodox approach is clearly opposed to the terms of s 97 and, therefore, should be rejected.
It is, however, the Crown's contention which is opposed to the language of the section, for to posit that an otherwise unparticularised sexual interest in female children under 16 years of age is a "particular state of mind" is to deny the statutory requirement of particularity. As Edelman J observed in effect in the course of argument, it traduces particularity to similarity at a very high or abstract level of generality. And, at such a high or abstract level of generality, the criterion of admissibility becomes no more than, or no different from, the test of relevance under s 55. That cannot be the purpose of s 97.
Conclusion and orders
The admission of the tendency evidence in relation to all counts occasioned a substantial miscarriage of justice. As was conceded by the Crown, there can be no question of the application of the proviso. Accordingly, the appeal should be allowed, the convictions quashed and the sentences passed below set aside, and it should be ordered that a new trial be had on all counts except Count 10.