120 Tendency evidence on the other hand is direct evidence relevant to the commission of the offence charged. If accepted by the jury, it makes it more likely that the offence charged was committed by the accused. It bolsters the complainant's credibility because her version is more likely to be true if the accused has a tendency to behave in the way she alleges he did on specific occasions.
65 Howie J's reference to the way relationship evidence was used in the case of Wilson v. The Queen seems to indicate that Howie J would not consider evidence used for purpose (2) to be tendency evidence: I cannot see any relevant difference between evidence of hatred and enmity referred to in Wilson, and evidence of sexual attraction: both are ordinary motivational factors.
66 The trial judge's reference in Qualtieri to the accused's passion for the complainant "that he was prepared to satisfy" meant in my opinion that the trial judge in that case did countenance use of the evidence in question as evidence led for purpose (3), so on my approach he did allow it to be used as tendency evidence. The result of the decision in Qualtieri was therefore consistent with my analysis. McClellan CJ at CL's discussion could be considered contrary to my analysis, essentially because he does not distinguish my purpose (2), the purpose of relying on ordinary human motivation, from purpose (3). On the other hand, Howie J seems to accept that evidence of ordinary human motivation may be provided by relationship evidence, though he does not apply this view to a history of sexual encounters.
67 In all these circumstances, I do not think that either AH or Qualtieri contain a sufficiently clear ratio decidendi on the point to require a conclusion that my analysis is precluded by authority. I would add that the distinction between motivation and tendency seems to be supported in pre-Evidence Act cases: B v. The Queen (1992) 175 CLR 599 at 601-2; R v. Beserick (1993) 30 NSWLR 410 at 515-6.
68 However, I would accept that, even if there are theoretical distinctions between purposes (2) and (3), they may be considered of little practical significance where the complainant is a young child: sexual feelings of adult males towards young children are considered abnormal, and the ordinary motivational force of sexual feelings referred to in (2) cannot easily be kept distinct from a perception that a person having such feelings towards a young child is a particular kind of person who is likely to act on these feelings (engaging purpose (3)). Thus, evidence in such cases is not like evidence that a person charged with stealing (say) a rare stamp has a keen interest in such stamps, which would not be considered tendency evidence: it is unrealistic to liken evidence linking the ordinary human motivation of sexual feelings to a particular child, to evidence linking the ordinary human motivation of avarice to a particular kind of object such as a rare stamp, because as soon as one suggests that an adult male has sexual feelings towards a young child, one almost inevitably suggests that the person in question is the kind of person who is likely to assault the child.
69 Accordingly, I think that if, in a case where sexual assault against a child is charged, the Crown intends to call independent evidence of sexual activity towards the child on an occasion that is not the subject of a charge, it would be desirable, even if the Crown might otherwise be content for the evidence to be used for purposes (1) and (2) only, for the Crown to give notice that it is to be relied on as tendency evidence. Then the judge can decide whether it passes the s.101 test; and if it does not, the question can then be squarely addressed whether use of the evidence for purpose (2) passes the s.137 test, and if so, what directions should be given with a view to ensuring it is not used impermissibly. If the decision is that the evidence could only be used for purpose (1), then the question of probative value for that purpose, as compared with its prejudicial effect, can also be squarely addressed.
70 Indeed, I would suggest that the same approach should be taken where several assaults are charged, and there is corroborative evidence in relation to one of them and not others; because in such a case, there is a danger that such evidence would be used as tendency evidence.
71 In the present case, none of these issues were addressed at the trial; and in my opinion the appropriate course for this Court is to consider whether this caused a miscarriage of justice.
72 In the present case, the following features appear:
(1) There was no explicit suggestion by the Crown or the judge that the corroborating evidence suggested that the appellant had a tendency to commit acts of the kind charged, or that he had a "guilty passion" for the complainant; although the Crown's submission that "there is no innocent explanation for that behaviour" and that the appellant "was caught red-handed", and the judge's comment that the appellant "was seen doing certain things which would back up what the complainant said happened", could be taken as implying a tendency.
(2) No objection was raised to the evidence, or the Crown's submission, or to the way the evidence was dealt with by the trial judge.
(3) The jury was warned against using evidence of other incidents as tendency evidence.
(4) By the time of the final Crown address and the summing up, the accused had squarely denied the incident in respect of which there was corroboration, and so had pitted his credibility against that of both the complainant and her mother; and in that sense at least, the mother's evidence did "back up" the evidence of the complainant and supported the Crown case, quite independently of any possible effect as tendency evidence.
73 Further, in my opinion the probative value of the corroborating evidence for purposes (1) and (2) of the three purposes I identified did "back up what the complainant said happened". To the extent that the Crown's submissions about "no innocent explanation" and "caught red-handed" suggested tendency, that was not objected to, not supported by the judge, tempered by the judges' directions about tendency, and, having regard to the legitimate probative value of the evidence, not suggestive of a miscarriage of justice.
74 If the point about tendency evidence had been taken, an application could have been made under s.100, and issues under ss.100, 101 and 137 could have been addressed. In my opinion, the probable result, in the absence of any suggestion that the accused was taken by surprise by this evidence, would have been dispensation with notice; and in my opinion, the probative value of the mother's evidence of the kneeling incident as tendency evidence substantially outweighed its prejudicial effect, so long as proper directions were given, so that it passed the s.101 test and (if relevant) the s.137 test. If this evidence had been admitted for that purpose, the overall effect would have been unfavourable to the appellant, as compared with what actually happened.
75 For these reasons, I do not think any error has been shown in the judge admitting the evidence. I do not think any error has been established in the directions, and in any event I do not think any miscarriage of justice has been shown. I would not be satisfied that this is a case where it would be appropriate to give leave under r.4. Accordingly, this ground of appeal fails.