Interlocutory appeal from ruling that evidence of uncharged acts admissible as tendency and context evidence

1 The applicant, who is charged with one count of maintaining a sexual relationship with a child under the age of 16,[1] seeks leave to appeal pursuant to s 295 of the Criminal Procedure Act 2009 against an interlocutory decision of Judge Sexton in the County Court that evidence of sexual activity and other discreditable conduct of the applicant that was not relied upon to establish the particulars of the charge was admissible as tendency evidence pursuant to s 97 of the Evidence Act 2008 ('the Act'), and could also be used for the purpose of showing context. Her Honour also ruled that the evidence was not to be excluded under ss 101, 135 or 137 of the Act, or its use limited pursuant to s 136.

2 The applicant requested that the trial judge certify that the evidence, if ruled inadmissible, would 'eliminate or substantially weaken' the prosecution case, so as to satisfy the precondition to the application for leave to appeal to this Court.[2] As the Crown consented to that course, a certificate was granted.

3 To determine whether to grant leave, this Court must consider whether it is in the interests of justice to do so, consistent with the factors enumerated in s 297(1) of the Criminal Procedure Act 2009. It is not in dispute that if the ruling was erroneous, one or more of the criteria in s 297 would be satisfied.

4 The offence of 'maintaining a sexual relationship with a child under the age of 16' (as it was previously called) was defined in s 47A of the Crimes Act 1958 in the following terms:

(1) A person who [maintains a sexual relationship with] a child under the age of 16 to whom he or she is not married is guilty of an indictable offence.

(2) To prove an offence under sub-section (1) it is necessary to prove -

(a) that the accused during a particular period (while the child was under the age of 16) did an act in relation to the child which would constitute an offence under a provision of this Subdivision or Subdivision (8A) or (8B); and

(b) that an act which would constitute an offence under a provision of this Subdivision or Subdivision (8A) or (8B) took place between the accused and the child on at least two other occasions during that period.

5 The section further provides that it is not necessary that the alleged acts be of a similar nature, or constitute an offence under the same provision.[3] Neither is it necessary to prove an act referred to in sub-section (2)(a) or (b) with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted by that act, instead of an offence against sub-section (1).[4]

[the applicant] between the 1st day of January 2005 and 31st day of March 2008 maintained a sexual relationship with [the complainant] a child under the age of 16 to whom he was not married in that on at least three occasions during that period [the applicant] took part in one or more of the following acts with [the complainant]:

(a) Wilfully committed an indecent act with [the complainant], by rubbing her vagina,

(b) Wilfully committed an indecent act with [the complainant], by licking her vagina,

(c) Sexual penetration of [the complainant], by introducing his finger into her vagina;

(d) Sexual penetration of [the complainant], by introducing his tongue into her vagina;

(e) Wilfully committed an indecent act with [the complainant], by her masturbating his penis.

7 The prosecution thus specified five types of sexual misconduct which it alleged the applicant had engaged in with the complainant during the period from 1 January 2005 to 31 March 2008. The count did not give particulars of the three or more specific occasions on which one or more of the types of sexual misconduct was alleged to have occurred.[5] The specific occasions that the Crown intended to prove were set out in a draft opening provided to the judge. The opening particularised five specific occasions which the prosecution contended satisfied the requirements of s 47A(2) (the 'five occasions').

8 In its draft opening the Crown also sets out particulars of 'uncharged acts' evidence of which it intended to rely upon for the purposes of showing tendency and context. The prosecution sought to lead evidence of the other occasions of sexual misconduct (and some of improper behaviour of a sexual nature) for the purpose of proving that the applicant had a tendency 'to act in a particular way'[6] towards the complainant (namely picking the complainant up after tennis lessons and taking her back to the office in his house and engaging in sexual conduct), and had 'a particular state of mind'[7] in relation to the complainant (specifically a sexual interest in the complainant and a willingness to act on that interest).[8]

9 The prosecution accordingly served two notices pursuant to s 97(1)(a) of the Act, indicating its intention to adduce evidence of incidents of sexual misconduct between the applicant and the complainant which were not the subject of the charge. In the alternative, if the evidence of the uncharged acts was not admissible as tendency evidence, the prosecution sought to have the evidence admitted for the purpose of providing context to the sexual misconduct that is alleged to have occurred on the five occasions particularised in the Crown's opening.

10 Both before the trial judge and on appeal it was assumed by the parties that only the evidence tendered in proof of each of the five occasions was evidence of the charged offence. Hence the applicant described all of the complainant's evidence of sexual conduct by the applicant, other than on the five occasions, as being evidence of uncharged acts. Section 47A is an offence 'in effect, of propensity'.[9] While it is necessary for the prosecution to prove 'at least three occasions' on which relevant sexual conduct occurred,[10] I would leave open the question whether evidence of other sexual misconduct which satisfies the description in s 47A(2) is further evidence of the offence charged.[11] It is unnecessary to determine the question in the present application, but because such evidence is arguably admissible in proof of the charge, it may be misleading to describe it as 'uncharged acts'. Accordingly I have used the term 'other sexual misconduct.'

11 In the present case the prosecution wished to rely upon the other sexual misconduct as evidence of tendency making it more probable that the applicant committed the sexual acts the subject of the five occasions specified.[12] Where the prosecution wishes to use the evidence of an ongoing sexual interest by the accused in the complainant as tending to show that the accused did the act or acts with which he is charged - or in this case committed the sexual acts on the five occasions specified- and to lend credibility to the complainant's account that the accused did the act or acts in question, it is tendency evidence which must comply with ss 97 and 101 of the Act before it may be used for that purpose.

12 Accordingly, it is necessary to consider whether the trial judge was correct to rule that the prosecution was able to satisfy the requirement of s 97 and s 101 so that the other sexual misconduct could be used as evidence of tendency.

13 The trial judge was referred to the recent interlocutory appeals of CGL v DPP[13] and PNJ v DPP.[14] Relying upon those decisions it appears to have been submitted that the evidence of other sexual acts did not have any 'distinctive feature' and could not therefore support tendency reasoning. In ruling the evidence of other sexual misconduct admissible as tendency evidence, the trial judge rightly distinguished those decisions. Both were concerned with a single presentment containing multiple counts which gave rise to the question whether the evidence of a number of complainants was cross admissible as co-incidence evidence or tendency evidence. In both cases the court held that the evidence of the complainants did not contain such similarities as would make their evidence cross admissible. In the present case there was only one complainant and one count. Her Honour held that the evidence of other sexual misconduct was relevant to the fact in issue in that it would:

render it more probable that [the applicant] did commit at least three sexual offences relied on as the particulars of maintaining a sexual relationship, and that he had a sexual interest in [the complainant] and on the occasions referred to in the particulars in the charge of maintaining a relationship, was willing to act on this sexual interest.[15]

14 Turning to the requirement in s 97(1)(b) of the Act that for tendency evidence to be admissible it must have 'significant probative value', her Honour relied upon the High Court case of HML v R[16] which was concerned with the common law position as to uncharged acts which revealed a sexual interest by the applicant in the complainant. Her Honour concluded that:

the evidence of a range of sexual acts being performed by the accused on [the complainant] has significant probative value in proving that he committed specific sexual acts, by the use of probability reasoning. If it is accepted that he had a particular tendency, that is a sexual interest in [the complainant], as demonstrated by a range of sexual acts, whether or not corresponding to those particularised in the charge, it makes it more probable that he acted on that sexual interest to commit the acts (or at least three of them) on the occasions particularised in the charge.[17]

15 Finally, her Honour rejected the submission by the applicant that the prejudicial effect of the evidence was not substantially outweighed by its probative value, with the result that the evidence should be excluded under s 101(2) of the Act, stating that '[a]ny prejudicial effect can be dissipated by jury directions.' She accordingly held that the evidence should not be excluded under s 101(2), (or, for the same reason, under ss 135 or 137), and that its use should not be limited under s 136. Her Honour also held that, once admitted for the purpose of tendency, the evidence could also be used for the additional purpose of providing context.

C. Whether evidence of uncharged acts is admissible as 'tendency evidence' or 'context' evidence where it comes only from the complainant

16 The applicant's primary submission is that where the sole source of other sexual misconduct is the evidence of the complainant, such evidence cannot be admitted under s 97 as it will not have 'significant probative value' in proof of a charged sexual offence.[18]

17 The only source of evidence that the applicant engaged in any of the sexual acts with the complainant comprising the five occasions or the other sexual misconduct, is the complainant herself. In the complainant's V.A.T.E. recording, she identified multiple incidents of sexual misconduct between the applicant and herself, forming part of an ongoing sexual relationship which spanned the entire period charged in the indictment. Although she could not give evidence as to specific dates or times of the incidents, she said that one or more of the types of sexual misconduct particularised on the indictment occurred on each of the five occasions nominated in the Crown's proposed opening, as well as on numerous other occasions. Whether the five occasions could be identified with sufficient specificity was not in issue before the judge below or on appeal.

Meaning of 'significant probative value' in s 97

18 'Probative value' is defined in the Dictionary to the Act as meaning 'the extent to which the evidence could rationally affect the assessment of the probability of the fact in issue.' That definition echoes the definition of 'relevance' in s 55(1) of the Act. Both definitions assume that the evidence will be accepted by the tribunal of fact.[19] Section 97 requires that tendency evidence must have 'significant probative value.' In New South Wales that term has been held to mean 'that its degree of relevance to the events giving rise to the offence charged is important or of consequence.'[20] The applicant did not dispute this interpretation. Adopting that meaning, the conclusion is inescapable that the evidence of other sexual conduct had significant probative value.

The Common Law has long admitted such evidence as evidence of sexual relationship, sexual interest in the complainant, or guilty passion.

19 Evidence of uncharged acts between an accused and a complainant in sex offence cases has long been recognised as tending to explain the relationship between the parties and explain why the complainant did not rebut the accused or showed no distress or resentment, or to make it more probable the charged acts occurred.[21] Where admitted for the latter reason, such evidence may prove that the accused had an unnatural passion for the complainant. A sexual interest and willingness to give effect to that interest has been regarded as having a 'sufficiently high degree of relevance to justify its admission'[22] making it more likely that the offence charged was in fact committed.[23] As McHugh J stated in KRM v R, evidence of uncharged sexual conduct has been admissible on this basis for the best part of a century.[24]

20 At an intermediate appellate level, since at least R v Beserick[25] and Vonarx v The Queen[26] it has been accepted that evidence of uncharged acts may establish an improper sexual relationship or guilty passion which existed between the accused and the victim and which tended to make it more likely that the offence charged in the indictment was in fact committed.[27] This proposition has been applied in countless cases.[28] The cogency of such evidence and its admissibility remained largely unaffected in New South Wales following the introduction of the Evidence Act 1995 which governed its admissibility. The common law has continued to provide a useful guide in the evaluation of whether the tendered evidence would have significant probative value.[29]

21 Undaunted by the long line of authority that has recognised that such evidence has substantial relevance, the applicant contended that because the evidence of uncharged acts came solely from the complainant, it did not have 'significant probative value' as it could add nothing to the question whether the complainant was a credible and reliable witness. The applicant found some support for this view in the observations of Howie J in Qualtieri v R.[30] The appellant had been convicted on five counts including offences of a sexual nature committed on the complainant. The evidence of uncharged acts had been tendered merely for the purpose of providing the jury with the context in which the charged acts occurred yet the trial judge had directed the jury they could take such evidence into account in considering whether the accused harboured sexual feelings or passions for the complainant and whether that fact may have made the complainant's evidence more credible. On appeal it was submitted the trial judge had failed to adequately direct the jury as to the use that could be made of such evidence. McClellan CJ at CL who delivered the primary judgment, found that the trial judge had crossed the line between evidence of context of the charged acts and evidence raising for consideration the propensity of the appellant to commit those acts. As the evidence had not been admitted for that purpose and the trial judge had given no consideration to whether it should be admitted as tendency evidence, the convictions were quashed. After referring to authority which established that the sexual desire or feeling of the accused for the complainant is directly relevant to proving the offence charged, his Honour referred to the High Court's decision in Gipp v The Queen[31] noting that the High Court was divided on the question of the admissibility of evidence of uncharged acts of sexual abuse and that the majority had not spoken with a consistent voice.[32] Howie J agreed with the reasons of the Chief Judge and made some additional observations. After referring to the admissibility of uncharged acts to give context to the allegations made by the complainant which form the basis of the charges his Honour turned to tendency or propensity reasoning and said:

On the other hand evidence of the relationship between the accused and the complainant that is admitted for the purposes of showing that the accused had a tendency or propensity to have sexual relations with the complainant will almost never be found in the complainant's account of his or her relationship with the accused. That is because the complainant's account of the relationship would rarely have sufficient probative value to overcome the precondition of admissibility for tendency evidence in s 97 and s 101. It is presumably the lack of sufficient probative value of the complainant's evidence to prove a tendency on the part of the accused that led McHugh and Hayne JJ in Gipp v The Queen (1998) 194 CLR 106, [76] to require that evidence of the complainant to be used for this purpose to be proved beyond reasonable doubt. Tendency evidence generally does not have to be proved to that standard. Evidence of the accused's sexual interest in the complainant will usually be found outside of the complainant's evidence, such as in a letter written by the accused to the complainant or some other act of the accused that shows a sexual interest in the complainant or children generally.[33]

Latham J agreed with McClellan CJ at CL and with the observations of Howie J.

22 The obiter observation of Howie J may well have been influenced by the uncertainty in some of the judgments in Gipp v R to which McClellan CJ had referred but his observations are difficult to reconcile with authority or principle. One need look no further than the cases of R v AH, R v Beserick and B v The Queen which were cited in the judgment of McCLellan CJ to see that evidence of tendency or propensity is often to be found in the complainant's account of his or her relationship with the accused. Moreover, the conclusion of McHugh and Hayne JJ in their joint judgment in Gipp v The Queen[34] that uncharged acts relied upon to establish a 'guilty passion' should be established beyond reasonable doubt reflects the view that such evidence has a potentially high probative value. The same view can be discerned in the majority judgments of the High Court in HML v The Queen[35] decided after Qualtieri.[36] That such evidence has a high degree of probative value can be seen from the observation of Hayne J who said:

Generally speaking however there usually will be no reasonable view of other sexual conduct which would constitute an offence by the accused against the complainant even if it is an isolated incident and temporally remote, which would do other than support an inference that the accused is guilty of the offence being tried.[37]

23 Heydon J similarly recognised that the basis for the admission of such evidence lay in its possessing particular probative value or cogency by reason of the fact that it revealed a pattern of activity 'such that if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged'.[38] The three members of the court who were in the minority (Gleeson CJ, Crennan and Kiefel JJ) differed on the conventional basis that if the evidence of relationship was put forward as relevant only to context, it was not necessary that the jury be directed that such acts be proved beyond reasonable doubt. Following HML, this court said in R v Sadler[39] that a trial judge should ordinarily assume that there is a real risk of the jury using that evidence as a sufficiently important step in their process of reasoning towards guilt.

24 The applicant also relied upon observations made by Latham J, with whom Bell JA and Fullerton J agreed, in her judgment in AW v R.[40] The appellant had been convicted of four sexual offences against the complainant, his stepdaughter. Tendency evidence had been admitted from the complainant and her mother to the effect that the appellant had accessed child pornography on the internet. Her Honour concluded that proof that the appellant had access to 'hardcore child pornography' at a time which coincided with the commission of the third and fourth counts on the indictment, and the fact that the third count alleged an act of cunnilingus which was consistent with the type of activity which the complainant had said was depicted on the computer screen, entitled the trial judge to reach the conclusion that it had significant probative value which substantially outweighed its prejudicial effect. In reaching that conclusion Latham J placed particular reliance upon the fact that the mother's evidence provided independent evidence of the appellant's tendency. Her Honour continued:

Had the complainant's evidence stood alone, one would less readily conclude that s 101(2) was satisfied, since the complainant's evidence of the sexual assaults committed upon her by the appellant was unsupported and the overarching question for the jury was whether they accepted the complainant as an honest and reliable witness. In those circumstances the complainant's evidence of the pancake incident [where the images were seen on the

computer screen] would add nothing to the probative value of her evidence generally.[41]

25 The tendency evidence was to the effect that the appellant had demonstrated an interest in child pornography. It carried with it a prejudice not present in the case of evidence of uncharged acts by a complainant. Her Honour's obiter observation does not support the proposition that where the complainant is the sole source of evidence of uncharged acts, the tendency evidence will not have significant probative value.

26 The above views expressed in Qualtieri and AW as to 'probative value', in my respectful opinion wrongly focus upon the credibility of or weight that might be given to such other evidence of sexual acts.[42] It is not to the point that it might be viewed as having no greater credibility than the evidence of the charged acts. What must be considered is the contribution which such evidence might make, if accepted, to whether the facts to be proved are rendered more likely to have occurred.[43]

27 The applicant submitted that even if the evidence is by character, tendency evidence, there are a number of reasons why it should not have been ruled admissible as evidence of tendency. First it was said that the introduction of evidence by the complainant of the same acts as those particularised, and which occurred during the period covered by those five occasions, was vague and non-specific and would deflect the jury's attention from the question whether the prosecution has proved that such acts occurred on least three of the specified occasions. I reject that submission.

28 Evidence by a complainant of uncharged sexual acts by the accused which are not remote in time from the act or acts charged and which are of the same nature as those charged will ordinarily permit probability reasoning that the offence or offences charged are more likely to have occurred. The cogency of evidence that the accused has previously committed sexual acts of a similar nature to the act charged with the same victim and for the same reason, needs no elucidation. In the present case such evidence has significant probative value and is admissible as tendency evidence.

29 In addition the applicant submitted that the evidence of the complainant of similar sexual conduct which related to the second half of the period specified in the count, was too far removed from the five specific occasions which the prosecution seeks to prove. That submission must be also be rejected. As the respondent submitted in reply, the dates of the five occasions which the prosecution seeks to prove, are not specified by the complainant. Some of those occasions may have occurred in the second half of the period of the offence. Moreover, even if some of the evidence was of conduct which occurred some time after the last of the five specified occasions, that evidence was not remote in time from the occasions specified. It was potentially capable of supporting the hypothesis that the applicant was engaged in a continuing course of sexual misconduct with the complainant and had 'significant probative value'.

30 The applicant also referred to the complainant's testimony that approximately 12 months after the sexual relationship had commenced, the applicant, in addition to performing acts of the same type as those particularised in the presentment, also commenced to digitally penetrate her anus. The applicant also pointed to her description of 'Koala hugs' where she alleges that the applicant, while fully clothed would hug her and press himself against her in an overly sexual manner. These acts, not being of the type particularised, could not, it was said, be acts capable of proving tendency. That submission is also without substance. Tendency evidence given by the complainant may have very considerable probative value even though it is not identical with the acts constituting the offence[44] or in the case of an offence under s 47A, the sexual acts constituting the specified occasions. Here, the evidence of different sexual acts to those particularised on the five occasions had the capacity to show the applicant to have an ongoing sexual interest in the complainant. Such evidence also potentially demonstrated the particular modus operandi by which the applicant gave effect to his ongoing sexual interest. I see no error in the trial judge's conclusion that the uncharged acts have significant probative value.

Whether probative value substantially outweighs prejudice - s 101

1"> 31 Section 101(2) of the Act requires the Crown to establish that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. Generally, the prejudicial effect of tendency evidence will be that a jury may think that someone with an established tendency to conduct himself in a certain way whenever a particular opportunity arises, will yield to that tendency and so conduct himself in the manner charged in the particular case.[45] Ordinarily, where the propensity evidence relates to the accused's sexual interest in the complainant and his willingness to give effect to it so that the jury is invited to infer from that sexual interest that the accused was likely to avail himself of the opportunity, no prejudice in the sense discussed by Gleeson CJ in Festa v R[46] is likely to arise.

32 Here the applicant contended that the jury might be influenced to convict as punishment for conduct other than that charged, may overestimate the probative value of the evidence and be distracted from the central issues in the trial. These risks were all matters which the trial judge rightly concluded could be addressed by appropriate directions. It was further submitted that the allegation of anal penetration and the 'koala hugs', the possible remoteness of the uncharged acts from the five occasions alleged and the vagueness of the evidence of the uncharged acts should at least have led to the exclusion of such evidence in the exercise of the trial judge's discretion. While it may be accepted that the nature of the act of anal penetration carried with it some additional prejudice, I see no error in the conclusion reached by the trial judge that the probative value of such evidence substantially outweighed any prejudice arising from these particular aspects of the complainant's testimony.

Uncharged acts as evidence of 'context' or ' relationship'

33 The prosecution sought to have the other sexual misconduct admitted as evidence of context even if it were inadmissible as tendency evidence. Uncharged acts may reveal a relationship which may place the evidence of the offence charged in its true context as part of the essential background against which the evidence of the complainant necessarily falls to be evaluated.[47] If such evidence is relevant in this way, it will be necessary for the court to consider whether such evidence should be excluded under either s 135 or s 137 of the Act. The trial judge having ruled the evidence admissible as evidence of tendency, no error arises in her Honour's further conclusion that it should also be received as evidence of context. But had the evidence been ruled inadmissible as evidence of tendency, the trial judge would need to consider whether by a direction to the jury, the risk of an impermissible use of the evidence could be avoided. The observations in the majority judgments in HML suggest that an expectation that the jury can understand such a direction may not be on firm ground.[48]

The nature of the appellate review in an interlocutory appeal concerning tendency evidence

34 During the appeal both parties submitted that the correct approach to an appeal from a ruling of the present kind was for the Court to determine for itself whether the evidence was admissible. I note that in PNJ v The Director of Public Prosecutions,[49] this Court expressed a preference for the view of Baston JA who was

in dissent in The Queen v Zhang[50] and that of Underwood CJ in L v Tasmania[51] that this Court should decide for itself whether the relevant evidence was admissible rather than treat the decision of the trial judge as of a kind which is reviewable on appeal on the principle stated in House v The Queen[52] - a view which has found favour in a number of New South Wales Court of Appeal decisions.[53] The matter remains unresolved as the recent judgment of R v Ford[54] illustrates. After reviewing previous decisions of that Court, Campbell JA concluded that where there is an appeal from a decision concerning s 97, the Court of Appeal must decide for itself whether the evidence is admissible. By contrast his Honour regarded an appeal from the decision made under s 101(2) of the Act as involving a review of the trial judge's decision which should be conducted in accordance with House v The King criteria.

35 In the present appeal it is unnecessary to determine the nature and extent of an appeal under s 295 of the Criminal Procedure Act 2009. On either basis of appellate review the evidence is tendency evidence which fell within s 97 and satisfied the requirement of s 101(2) of the Act. That is to say I detect no error in Judge Sexton's approach to these issues and would have reached the same conclusions.

36 I would grant the applicant leave to appeal and dismiss the appeal.

38 I agree, with some reluctance, with Redlich JA, that leave to appeal should be granted in this case. The appeal should also be dismissed for the reasons given by his Honour. The trial judge was clearly correct in her ruling that the evidence in contention ought to be admitted.

39 My reluctance on the leave question stems from my opinion that not only was her Honour, the trial judge correct but that there was no real force in the argument that she was wrong. The large number of authorities cited by Redlich JA which were in point attest not only to the correctness of the decision but also to the commonplace nature of the evidence her Honour had to consider. If this Court is to carry out its function with respect to interlocutory appeals properly and efficiently they must be reserved for cases when there is a real argument, the outcome of which has a substantial effect on the pending litigation.

[1] This was the predecessor to the current offence in s 47A of the Crimes Act 1958 of 'persistent sexual abuse of a child under the age of 16'. The change in the name of the s 47A offence only applies to offences alleged to have been committed on or after 1 December 2006: s 606A(2).

[2] Criminal Procedure Act 2009 (Vic) s 295(3)(a).

[3] Crimes Act 1958 (Vic) s 47A(2A).

[4] Crimes Act 1958 (Vic) s 47A(3).

[5] The count was in conformity with the form of the count suggested by Hayne J in KRM v R [2001] HCA 11; (2001) 206 CLR 221 [137].

[6] Evidence Act 2008 (Vic) s 97.

[8] DPP v JLS [2010] VCC (Unreported, Judge Sexton, 27 May 2010) [13].

[9] KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [65].

[10] Crimes Act 1958 (Vic) s 47A(2).

1. [11] R v SLJ [2010] VSCA 16, [8]-[10]; R v GJB [2002] VSCA 54; (2002) 4 VR 355, 363 [15]; KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221, [67].

[12] Section 95 provides that where the evidence is not admissible for a particular purpose, the evidence may not be used for that purpose even if it has been admitted for another purpose. Hence the evidence cannot be used as tendency evidence unless s 97 and s 101 are satisfied.

[13] [2010] VSCA 26 (Unreported, Maxwell P, Buchanan and Bongiorno JJA, 23 February 2010).

[14] [2010] VSCA 88 (Unreported, Maxwell P, Buchanan and Bongiorno JJA, 21 April 2010).

[15] DPP v JLS [2010] VCC (Unreported, Judge Sexton, 27 May 2010) [35].

[16] HML v R, SB v R, OAE v R [2008] HCA 16; (2008) 235 CLR 334.

[17] DPP v JLS [2010] VCC (Unreported, Judge Sexton, 27 May 2010) [62].

[19] Adam v The Queen (2001) 207 CLR 95, 115 (Gaudron J).

[20] R v Lockyer (1996) 89 A Crim R 457, 459; R v Lock (1997) 91 A Crim R 356; R v AH (1997) 42 NSWLR 702, 709.

1. [21] R v Ball [1911] AC 47; R v Gellin [1913] 13 SR(NSW) 271; R v Etherington [1982] SASR 230; B v The Queen [1992] HCA 68; (1992) 175 CLR 599, 601-2, 608, 610, 618; Pfennig v R [1995] HCA 7; (1995) 182 CLR 461, 526; Gipp v R (1998) 194 CLR 106; KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221, 230 [24] (McHugh J); HML v R, SB v R, OAE v R [2008] HCA 16; (2008) 235 CLR 334.
2. [22] Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590, 597-9; S v The Queen [1989] HCA 66; (1989) 168 CLR 266, 275; B v The Queen [1992] HCA 68; (1992) 175 CLR 599, 618; R v S [1989] HCA 66; (1989) 168 CLR 266, 275.

[23] O'Leary v R [1946] HCA 44; (1946) 73 CLR 566; Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334.

[25] (1993) 30 NSWLR 510, 515.

[26] [1999] 3 VR 618.

[27] See also Nieterink v R (1999) 76 SASR 56 (Doyle CJ).

1. [28] R v PLK [1999] VSCA 194; [1999] 3 VR 567; R v BJC [2005] VSCA 154; (2005) 13 VR 407; R v EF [2008] VSCA 213; (2008) 189 A Crim R 463; R v Featherstone [2006] VSCA 278; R v McKenzie Harg [2008] VSCA 206; (2008) 189 A Crim R 291; R v ML [2009] VSCA 106; R v NCT [2009] VSCA 240; R v Pau [2007] VSCA 239; R v Wickham NSWCCA (Unreported 17/12/ 91); R v Harvey NSWCCA (Unreported 11/12/ 96); R v Beserick [1993] 30 NSWLR 510, 515; R v Greenham [1999] NSWCCA 8; R v Fraser [1998] NSWSC 286; AH v R (1997) 42 NSWLR 702; R v Marsh [2000] NSWCCA 370; R v MM [2000] NSWCCA 78; (2000) 112 A Crim R 519; R v AN [2000] NSWCCA 372; (2000) 117 A Crim R 176; R v ELD [2004] NSWCCA 219; R v Mearns [2005] NSWCCA 396; DJV v R [2008] NSWCCA 272; R v Rolf [2007] NSWCCA 155; (2007) 173 A Crim R 168; Rodden v R [2008] NSWCCA 53; (2008) 182 A Crim R 227; AW v R [2009] NSWCCA 1.

[29] R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 [60]; R v AH (1997) 42 NSWLR 702, 709.

[30] [2006] NSWCCA 95; (2006) 171 A Crim R 463.

[32] Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463, 485.

[35] (2008) 235 CLR 335; See R v Sadler [2008] VSCA 198; (2008) 20 VR 69 [49]-[60] for an examination of the separate judgments.

[36] The judgments of each member of the court in HML were considered at some length in The Queen v Sadler [2008] VSCA 198; (2008) 20 VR 69, 83-86.

[37] [2008] HCA 16; (2008) 235 CLR 334, 383-4 [109].

[39] [2008] VSCA 198; (2008) 20 VR 69, [48].

[40] [2009] NSWCCA 1.

[42] See [18] above as to the definitions in the Act which assume that the evidence will be accepted.

[43] R v Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302 [33] (Simpson J with whom McClellen CJ at CL and Grove J agreed).

[44] KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [66] (Gummow, Callinan JJ).

[45] Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, 488.

[46] [2001] HCA 72; (2001) 208 CLR 593 [22].

[47] B v The Queen [1992] HCA 68; (1992) 175 CLR 599, 602-3, 610; R v Fraser [1998] NSWSC 286.

[48] See Sadler v R [2008] VSCA 198; (2008) 20 VR 69; DJV v R [2008] NSWCCA 272 [31].

[49] [2010] VSCA 88; THD v The Queen [2010] VSCA 115.

[50] [2005] NSWCCA 437; (2005) 227 ALR 311, 344.

[51] [2006] TASSC 59; (2006) 15 Tas R 381, 397-402.

[52] [1936] HCA 40; (1936) 55 CLR 499.

[53] R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308, 317; R v Zhang [2005] NSWCCA 437; (2005) 227 ALR 311; R v Milton [2004] NSWCCA 195; AW v R [2009] NSWCCA 1, [45].

[54] [2009] NSWCCA 306.