L v Tasmania [2006] TASSC 59

Supreme Court of Tasmania|2006-07-26|Before: Underwood CJ, Tennent JJ, Crawford J

CITATION: L v Tasmania [2006] TASSC 59

Underwood CJ, Crawford and Tennent JJ

Criminal Law - Appeal and new trial and inquiry after conviction - Miscarriage of justice - Particular circumstances involving miscarriage - Improper admission or rejection of evidence - Whether tendency evidence on one count admissible on another count - Whether counts should have been severed - Whether jury should have been discharged as a result of failure to sever counts.

Evidence Act 2001 (Tas), ss97(1), 98(1), and 101(2).

De Jesus v R [1986] HCA 65; (1986) 61 ALJR 1; Sutton v R [1984] HCA 5; (1984) 152 CLR 528, referred to.

Criminal Law - Evidence - Similar facts - Admissibility - Generally - Conditions for admissibility - Tendency and coincidence evidence - Conditions for admissibility - Sexual offences - Probative value - Possibility of concoction.

Evidence Act 2001 (Tas), ss97(1), 98(1), and 101(2).

Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Sentence - Other matters - Tasmania - Maintaining a sexual relationship.

Judgment Number: [2006] TASSC 59

1 The appellant was charged with one count of maintaining a sexual relationship with his daughter, A, and with three counts of aggravated sexual assault on his daughter, B. He was found guilty of all counts and sentenced to 7½ years' imprisonment, with a 4½ year non-parole period.

2 The issue on the appeal against conviction is whether the learned trial judge erred in refusing an application that the jury be discharged and a new trial ordered.

3 The issue on the appeal against sentence is whether it was manifestly excessive.

4 The appellant was arraigned on a single indictment containing all four counts. The indictment pleaded that between 1 January 1997 and 1 December 2002, when A was aged between 11 and almost 17 years, the appellant maintained a sexual relationship with her. With respect to B, the indictment alleged that there were three aggravated sexual assaults that occurred on 1 October 2002, 15 October 2002 and 21 November 2002 (when B was aged 13 years), all by digital penetration of her vagina.

5 The trial began before Evans J on 26 April 2004. Before the jury was sworn in, an application was made to sever the count of maintaining a sexual relationship from the other counts. The basis of the application was that the evidence of A in support of the count of maintaining a sexual relationship was inadmissible against the appellant on the counts of aggravated sexual assault on B, and that the evidence of B in support of the latter counts was inadmissible against the appellant on the count of maintaining a sexual relationship with A. Evidence was given on the voir dire. The application was refused. On 5 May 2004, Evans J published reasons for his refusal. Those reasons concluded with this reference to some letters:

"Before closing, there is one matter I wish to mention. Mr Richardson cross-examined [B] in relation to three documents which he placed before her, one of which she identified as a letter written by her. Mr Richardson did not seek to have any of the documents admitted into evidence and the prosecutor did not take steps to that end, as he could have pursuant to s45. [B] gave evidence of a portion of the content of her letter. This evidence, and her evidence in relation to these documents, insofar as her evidence went, did not cause me to doubt that there was no possibility that her evidence was concocted. However, in the absence of evidence of how the accused came by these documents, or their full content, I recognise that evidence may emerge at trial which might throw a different light on the question of concoction. In that event, it will fall for the trial judge to revisit this issue, P v R [2002] TASSC 61."

6 A jury was sworn in before Blow J on 5 August 2004. It was accepted by counsel for the Crown and counsel for the appellant at the trial, that the ruling by Evans J on the voir dire applied to the trial before Blow J. In this respect I refer to the Criminal Code, s361A(2). On the fourth day of the trial, counsel for the appellant tendered into evidence the letters referred to by Evans J at the end of his ruling on the voir dire. Accordingly, Blow J enquired if counsel wished to revisit the issue ruled upon by Evans J. Counsel for the appellant said that he did want to revisit the issue. Both counsel said that they did not wish to adduce any evidence on a voir dire additional to that adduced on the voir dire before Evans J and that adduced on the trial to date. Counsel for the appellant submitted that, in the light of the evidence concerning the letters, the evidence of one complainant of the commission of crimes against her was not admissible on the trial of the appellant with respect to the other complainant and therefore, the trial should be aborted. The submission would have been better framed if it had been that in the light of the evidence concerning the letters, the evidence of one complainant was not admissible in relation to the charges against the other and the indictment should have been severed. See De Jesus v R [1986] HCA 65; (1986) 61 ALJR 1; Sutton v R [1984] HCA 5; (1984) 152 CLR 528 at 531. As the counts had not been severed, the jury should have been discharged and a new trial ordered, because not to so order would result in a miscarriage of justice. Blow J rejected the application to discharge the jury and the trial proceeded to a conclusion. On 24 August 2004, Blow J published his reasons for refusing the application to discharge the jury. See Tasmania v L [2004] TASSC 86.

7 The Crown case with respect to A was that the appellant committed his first crime when A was in Grade VI at school. This was about 1998 or 1999 when A was aged 12 or 13 years. On that occasion it was alleged that the appellant committed the crime of aggravated sexual assault by putting his fingers inside her vagina and masturbating her. A said that thereafter, this conduct was repeated nearly once a week and after the first occasion, included the appellant getting A to masturbate him. A said that it occurred mostly in the appellant's bedroom, although there were a couple of occasions when it happened in her bedroom, and a few occasions when it happened elsewhere. The appellant always ejaculated. A said that the appellant showed her pornographic magazines and on one occasion, a pornographic video. The Crown case was that by about the end of 2000 or early 2001, the appellant also started having vaginal sexual intercourse with A. She said that along with mutual masturbation, this occurred on a regular basis until 1 December 2002. A gave evidence that on the last occasion she went to a beach with the appellant. He drove his car down a secluded track, stopped, and got out. A said that the appellant told her to take off her skirt and pants and they then engaged in mutual masturbation and vaginal sexual intercourse. Two days after the commission of these crimes the appellant was arrested. With respect to the specific crimes relied upon by the Crown as constituting the crime of maintaining a sexual relationship with a young person, the Crown particularised five aggravated sexual assaults and/or indecent assaults and rape, together with a small number of additional aggravated sexual and indecent assaults.

8 The Crown case with respect to B was that when she was aged 13, the appellant committed the three charged aggravated sexual assaults by putting his fingers in her vagina and moving them in and out. B said that on the second and third occasions the appellant asked her to masturbate him, but she refused to do this.

9 The appellant gave some brief evidence on a voire dire, but neither gave, nor adduced evidence on his trial. In his interview with the police, the appellant completely denied the commission of any crime on either of his daughters and his counsel cross-examined them on this basis. Thus, the principal issue at trial was whether, with respect to A, the appellant committed at least three of the crimes particularised by the Crown, and with respect to B, whether he committed one or more of the three crimes of aggravated sexual assault pleaded in the indictment.

10 On the voire dire conducted before Evans J, and at the trial prior to the application to discharge the jury, A and B gave detailed evidence of the commission of the crimes and the circumstances surrounding them. With respect to this evidence at trial, Blow J found, at par5 of his reasons, that the accounts given in evidence by the two complainants "contained a number of striking similarities that could not be explained by mere coincidence". He listed them as follows:

"(i) Each complainant gave evidence that the first sexual approach by the prisoner occurred when she was about 12 or 13 years old.

(ii) Each complainant gave evidence that the first sexual approach by the prisoner occurred in her bedroom, at night, when she was alone, after she had gone to bed for the night.

(iii) Each complainant said that acts of sexual abuse occurred in the family home when their brother was in the house, but in his bedroom.

(iv) Each complainant gave evidence that the prisoner got her to look at pornographic magazines. B said that, before the first sexual assault upon her, the prisoner had asked her to bring him a particular shirt from his bedroom, and that she had seen a pornographic magazine underneath it. On the occasion of the first sexual assault, he had asked her whether she had seen that magazine. He had later shown her a magazine containing photos depicting women masturbating with vegetables. A gave evidence of sexual abuse over a period of five years or more, including numerous acts of vaginal sexual intercourse in the latter part of that period. When giving evidence as to the years prior to the commencement of vaginal sexual intercourse, she said that her father got her to read pornographic magazines almost every time he 'touched' her.

(v) Each complainant said that the prisoner had inserted a finger in her vagina. B described three occasions when she said he had done this. Some of A's evidence as to what the prisoner had done was somewhat ambiguous, but she stated unequivocally that he had inserted his finger on the last occasion that he sexually assaulted her.

(vi) Each complainant gave evidence of the prisoner either asking her to masturbate him or getting her to masturbate him. B said that he asked on one occasion, and that she refused. A gave evidence of him getting her to do so on the second occasion that he sexually abused her.

(vii) Each complainant gave evidence that the prisoner ejaculated in front of her. A said that he did so on every occasion except for two occasions when he used condoms and ejaculated inside her. B said that he did so on all three of the occasions she described.

(viii) Each complainant gave evidence of the prisoner making instructive comments at times when he was sexually abusing her. A gave evidence of an occasion when he said that it was better for her to learn from him than from someone else. B gave evidence of him saying that he was showing her a different way of doing things, pointing out her clitoris while rubbing it, and telling her that 'you can masturbate with all sorts of things'.

(ix) Each complainant gave evidence of the prisoner telling her not to tell anyone about his activities."

11 Blow J then held that because of those striking similarities the evidence of each complainant was admissible on the trial or trials concerning the other "but only if there was no reasonable explanation for the similarities between the events they described, such as concoction or contamination, that was consistent with the prisoner's innocence".

12 Upon the hearing of the appeal, counsel for the appellant, Mr Brett, accepted that proposition as correct and expressly conceded that the similarities between the two accounts were so striking that absent the possibility of concoction or contamination, the ruling of Evans J and the decision of Blow J were correct. His complaint was that the learned trial judge erred when he said, at par18, after having examined the relevant evidence:

"... I concluded that there was no real likelihood that the similarities between the accounts of the two complainants were the result of concoction, contamination, or any other explanation consistent with the innocence of the prisoner."

13 A said that about six months prior to the appellant being arrested, she wrote a letter to him in the following terms:

I want to move out of home. It isn't just because I need more freedom or I don't get what I want, there are many reasons. There is a lot of stress and pressure that with school and work I can't handle. Some of this pressure includes when you tell me about stuff from the bowls club, about how mum can get on your nerves, and I know that you aren't bugging her but it is hard for me to listen to sometimes. Then there is the things that you told me happened between you and [N] before you went to jail. It is hard for someone to keep those things a secret, which of course I did. Then, of course, there is that other thing that happens between us. You may think that I enjoy it, but it is only natural to feel that way. I can't live at home and be scared that whenever Mum goes out something is going to happen. It tears me up inside and if I don't get out I'll go insane. There are many things behind what actually happens, things that upset me. Such as I have to deal with the fact that I lost my virginity to my father, and not to a boyfriend. The reason I wrote this letter to you is because to say these things I could never do and for Mum or the others to find out would break my heart. I don't want to cause conflict between our family. Moving out, which I've thought about for a very long time now, I believe is the only way I can deal with what has happened over the past 3 to 4 years. I need space and time to recover and find out what I want to do and who I want to be.

I don't want you to think that you are the only reason I am moving out. Mum, [D] and the girls all contribute to this. I also don't what you to think that I am a 16 year old girl who needs more freedom or I'm moving in with some boyfriend, or I don't get enough of what I want, because those things I don't really care about.

I have organised money, transport, furniture etc, so I will be fine. I didn't just decide this over night to pack-up and leave I have thouroughly [sic] and sensibly looked into and thought about this decision.

I have to apologise for not having the guts and the decensy [sic] to tell you in person but I could never tell you everything you need to know without crying or getting it out smoothly.

I also wanted you to know that, I believe, that as a father you have done the best job I could ever dream of and I have had a wonderful fullfilling [sic] childhood that I wouldn't change for the richest, most spoilt kid in the world.

Please don't get angry or mad because I feel that at least I did have the decensy [sic] to discuss with you my intentions.

Dad I love you and I hope that you will not stop loving me because of what I have written and what I have decided to do.

14 On the voir dire before Evans J, A said that despite what she wrote in the letter, she had not made any arrangements for an income or accommodation. She said that she wrote that in the letter so that the appellant would not worry about her. She explained that her plan was to leave the letter on the kitchen table for the appellant to find after she had gone. Meantime, she hid it under her desk in her bedroom.

15 As well as B, A had another, younger, sister, X. One day, probably about three weeks before the appellant's arrest, X was looking around A's room and found the hidden letter. She took it, read it and hid it in her room. However, very shortly afterwards, she gave it to her mother. X said that she saw her mother reading it and crying.

16 Not long after this (there are conflicts in the evidence with respect to precise dates and the exact sequence of events), A and B were having an argument, during the course of which B told A that the appellant was touching her. There were some differences about the precise words that B used, but there was no suggestion in the evidence that at this time, either A or B described to the other in any detail what each said the appellant had done to them. A told B she had better tell their mother because "it will just get worse". B asked A what she meant by that and A said "that the same thing had been happening to me". Straight away, A and B went to their mother and B said that the appellant had been touching her. Again, not surprisingly, there was no unanimity in the evidence with respect to the exact words that were used. B was upset and crying, so her mother told her to go and wash her face.

17 While B was out of the room, her mother showed A the letter that she, A, had written. In response to her mother's question, A said that what was written in the letter was true and that it had been going on since she was in Grade VI. A told her mother that she did not want to go to the police about it. There was evidence that at that time, A and her brother were in the middle of school exams and that their mother was uncertain as to what course of action she should take, so nothing was done for some time. There are differences in the evidence as to how long it was between the time A and B spoke to their mother and 3 December, the day the appellant was arrested and the day A and B made statements to the police. This period may have been as long as three weeks or as short as a few days. In her evidence, B said that the day she and A told their mother about the appellant's misconduct was shortly before the appellant committed the last assault on her.

18 Given the proper concession by counsel for the appellant about the probative value of each complainant's evidence on the trial concerning the other, there is no need to explore all this any further. However, it may be helpful to explain that neither A nor B, nor their mother, made a complaint to the police that led to the appellant's arrest. That came about as a result of B speaking to a school counsellor shortly prior to 3 December about the sexual attacks on her.

19 At trial, B was confronted with two letters. One said:

I have left and I wont be coming back untill [sic] dad leaves. I have left because dad has been sexually malestering [sic] me and I know he has done to [A] for quite some years, I've told him no!! but all he says is, 'oh, your [sic] just shy'. Well I wasn't shy I meant NO!!! I can't handle it."

I have left because dad has been sexually malestering [sic] me, he reckons he was showing me how to masterbate [sic], well, he must of though [sic] I was pretty stupid and gulible to [sic] believe that I know it's not right for him to be doing that and I also know it's illegal. I've told him no, I dont [sic] want to but he replies with no, your [sic] just shy, well I wasn't shy I meant it, so I guess that means I was forced. Bye Bye

21 These letters and the one written by A are the letters referred to by Evans J at the end of his ruling on the voir dire in the passage that I have set out earlier. On a voir dire held during the trial, the appellant said that following his arrest on 3 December 2002, he was released on bail and returned home. A and B and their mother had vacated the house by the time he got there. He said that he found the above two letters in the rubbish bin at his home. He immediately gave them to his lawyer.

22 In her evidence, B said that she wrote the second letter, but not the first that referred to A. She said that she wrote it a few days before she spoke to A and the two of them then told their mother about the appellant's unlawful conduct. With respect to her letter, A said that at no time did she show it to, or discuss it with, B. B said that when she wrote her letter she had not seen the one written by A. Both A and B said that there had been no discussion at all between them about the appellant's unlawful conduct until they both confronted their mother with it. B said that after she wrote her letter, she threw it in the bin. B said that it was just coincidence that both she and A wrote a letter about leaving home. The handwriting on the two letters was so similar that the learned trial judge, properly, admitted both into evidence upon the basis that the jury were entitled to draw their own conclusion about the authorship of the first letter by comparing its handwriting to that of the second, which B said she had written.

23 On behalf of the appellant it was put that now all three letters were in evidence, it was apparent that there was a real risk that A and B's evidence was either concocted or had been contaminated by prior discussions between them. The submission was based on the proposition that the only inference was that B had written both letters, that she had told lies about this, that the reference to A in one and not the other showed that they had discussed the appellant's conduct, and therefore the strong probative value arising from the similarities was seriously diminished and the prejudicial effect seriously enhanced. The submission was that the evidence about B's letters, together with the other evidence, meant that the only option at that stage of the trial was to discharge the jury and the failure to do so resulted in a miscarriage of justice.

24 I interpolate here that the grounds of appeal (as amended) were as follows:

"(a) That the learned Trial Judge erred in failing to direct the jury that it could not use evidence of sexual acts alleged to have been committed on one complainant, in respect of the charges relating to the other complainant.

(b) That the learned Trial Judge erred in that, upon application being made in that regard by Counsel for the accused:

(i) He failed to direct, pursuant to section 326(3), Criminal Code, that the crime charged in count 1 should be tried separately from the crimes charged in counts 2, 3 and 4 in the indictment and

(ii) He failed, pursuant to section 326(5)(a), Criminal Code, to discharge the jury from giving a verdict upon the indictment."

25 With respect to ground (a), the direction the learned trial judge gave to the jury was in accordance with the ruling given on the voir dire by Evans J. It was accompanied by appropriate warnings with respect to improper use of tendency and coincidence evidence. With respect to ground (b)(i), the learned trial judge was not asked to sever the indictment. That request was made by the application to Evans J and refused. By the time that issue arose again, the trial had all but concluded, and it was too late to sever the counts. If the evidence of one complainant was inadmissible on the trial relating to the other, the only possible recourse open was to discharge the jury and this was the application made by counsel for the appellant at trial. Hence, it seems to me that the only ground of appeal for consideration is whether there was a miscarriage of justice by reason of his failure to do so.

26 In par14 of his reasons for rejecting the application to discharge the jury, the learned trial judge correctly postulated with respect to the letters:

"In my view, it follows that each of the following propositions is likely to be true:

(a) B wrote the incomplete letter, but decided to start a fresh letter and not to mention A in it.

(b) B lied on oath when she said that the incomplete letter was not written by her.

(c) A and B had an arrangement that they would each write a letter about leaving home, in which their father's sexual abuse was disclosed, and wrote their letters pursuant to that arrangement.

(d) A and B dishonestly concealed their arrangement about writing the letters.

(e) Alternatively to (c) and (d), B learned of A's letter, decided to copy it, and dishonestly denied knowledge of its contents.

(f) Whatever use B had planned to make of her letter, she abandoned her plan and threw it away before learning that the police had become involved."

27 His Honour referred to the undisputed facts that the evidence not only indicated that neither A nor B had a motive to concoct their accounts, but it also clearly showed that both loved their father. With reference to his postulations, the learned trial judge said, at par15:

"These possibilities might have been more significant if the complainants had had a strong motive to make false allegations against their father. It was submitted that they had motives to try to get him out of the family home as a result of his strictness as a parent, and as a result of tension in their parents' relationship resulting from an allegation that he had been having an affair with their aunt. There was a body of evidence that the prisoner was quite strict about each complainant's social activities, but the evidence did not suggest that this resulted in greater tension than one would ordinarily encounter between teenage daughters and their parents. On the contrary, there was evidence that B and the prisoner shared an interest in a sport; that his daughters would willingly accompany him to such places as the beach or his sporting club; and that they were at ease in his presence, to such an extent that they both modelled a dress that he had brought home on the night before he was arrested. There was also evidence that A had borrowed money from him to buy a car shortly before he was arrested."

The statutory rules governing admissibility of tendency evidence and coincidence evidence

28 The relevant sections of the Evidence Act 2001 ("the Act") are ss97(1), 98(1) and 101(2). For the purposes of the appellant's trial, they operated to provide that the evidence with respect to one complainant was admissible on the trial with respect to the other complainant only:

* if "the court thinks that the evidence, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, [has] significant probative value"; and if it did have significant probative value

* provided "the probative value of the evidence substantially outweighs any prejudicial effect it may have on the [appellant]".

29 Consideration of this issue must heed the following definition of "probative value" enacted in the Act, s3(1):

"'probative value' means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."

30 Inherent in the definition of "probative value" is a recognition that there are degrees of probative value. However, there is neither definition nor statutory guidance with respect to the expression "significant probative value" as enacted in the Act, ss97(1) and 98(1).

31 In R v Lockyer (1996) 89 A Crim R 457, Hunt CJ at CL expressed the view at 459, that "significant" meant more than "mere relevance but something less than 'a substantial' degree of relevance". He went on to state that the primary meanings of "significant" were "important" and "of consequence". He added that that was the sense in which the word was used in the Act, s97(1) and explained, also at 459:

"The significance of the probative value of the tendency evidence ... must depend upon the nature of the fact in issue to which it is relevant and the significance (or importance) which that evidence may have in establishing that fact."

32 His Honour repeated his views in R v Lock (1997) 91 A Crim R 356 at 360 - 361. Levine J adopted Hunt CJ's approach to the meaning of "significant probative value" in R v A H (1997) 42 NSWLR 702 at 709. Howie J, who wrote the judgment for the Court of Criminal Appeal in R v Fordham (1997) 98 A Crim R 359, expressed the same views at 368. For a collection of cases in which the meaning of "significant probative value" has been considered, reference may be had to the judgment of Rothman J in R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 at 330 - 332.

33 With respect to the issue of admissibility of tendency and coincidence evidence, the first question is whether it has significant probative value. If it does not, it is inadmissible notwithstanding its relevance. If it does, a second question has to be answered viz, does that probative value outweigh its prejudicial effect?

34 Prior to the enactment of the Act, the law of this State with respect to the admissibility of evidence of bad conduct not the subject matter of the charge, was governed by the common law. Makin v Attorney-General for New South Wales [1894] AC 57, is leading appellate authority for the proposition that at common law, such evidence was not admissible for the purpose of leading to the conclusion that the accused is likely to be guilty of the crime charged because of his character or conduct. See also Boardman v Director of Public Prosecutions [1975] AC 421. This common law exclusionary rule recognised that the admission of evidence of bad conduct, not the subject of the charge, led to a grave risk of the jury engaging in "an impermissible chain of reasoning". This risk is the prejudicial effect that flows from admitting this kind of evidence and led to the exclusionary rule. However, as Lord Hailsham pointed out in Boardman at 453, the exclusionary rule only has application if the impermissible chain of reasoning is the sole purpose for seeking the admission of this evidence.

35 The common law developed an exception to this exclusionary rule to permit the admission of evidence of bad conduct not the subject of the charge if it constituted what was commonly known as "similar fact evidence". The modern common law with respect to the admission of similar fact evidence was developed by the High Court through cases such as Perry v R [1982] HCA 75; (1982) 150 CLR 580; Sutton v R [1984] HCA 5; (1984) 152 CLR 528 and Harriman v R [1989] HCA 50; (1989) 167 CLR 590. All these cases recognised that "similar fact" evidence had strong probative value, but because it was evidence of bad conduct not the subject matter of the charge, its admission carried with it the risk of the jury engaging in the impermissible reasoning process. This risk gave that evidence its prejudicial value. The former had to outweigh the latter.

36 The common law reached its high water mark with respect to the admission of "similar fact" evidence in Hoch v R [1988] HCA 50; (1988) 165 CLR 292 and Pfennig v R [1995] HCA 7; (1995) 182 CLR 461. In Hoch, Mason CJ, Wilson and Gaudron JJ said, at 296 with respect to similar fact evidence, that it "has probative value only if it bears no reasonable explanation other than the happening of the events in issue". Their Honours went on to say that if a reasonable view of the evidence was that it was possibly concocted, the probative value necessary for its admission is destroyed.

37 In Pfennig, the High Court declared propensity evidence to be a special kind of circumstantial evidence and decreed that the test for its admission was that to be used by the jury when dealing with circumstantial evidence, viz, it is only admissible if there is no rational view of the evidence open other than that the accused is guilty of the crime charged. The court held that if there was a rational view of the evidence inconsistent with guilt, it was inadmissible because its admission would give rise to the risk of an impermissible chain of reasoning (the prejudicial value).

38 After the enactment in New South Wales of the Evidence Act 1995, the New South Wales courts continued to apply the Pfennig test when considering, pursuant to the Act, s101(2), whether the probative value of tendency or coincidence evidence substantially outweighed any prejudicial effect its admission may have on the accused. In R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700, a court of five justices considered whether the courts had been right to do so. The majority judgment was written by Spigelman CJ. His Honour applied the principle stated by the High Court in Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 that the Act is to be interpreted in accordance with its language and not in accordance with pre-existing common law principles. With respect to this proposition, his Honour said, at 717 - 718:

"Of particular importance, however, is the formulation adopted in s101(2) requiring the probative value of tendency or coincidence evidence to 'substantially outweigh' its prejudicial effect. The use of the word 'substantially' is a legislative formulation, not derived from prior case law. Most significantly, it introduces a legislative formulation into the very territory which the majority judgment in Pfennig said was the function of the formulation adopted in that case. In the overall context of the significant changes made to the pre-existing common law to which I have referred above, I find this last consideration determinative.

The continued application of a 'no rational view' test is not, in my opinion, consistent with a statutory test which expressly requires a balancing process and tilts that process in the same direction as that which the joint judgment in Pfennig suggested, but by the use of different terminology, that is, 'substantially'.

The reasoning in Pfennig applied the 'no rational explanation' test to a common law principle that probative value outweighs prejudicial effect. That reasoning is, in my opinion, inapplicable to a statutory test that probative value substantially outweighs prejudicial effect.

The Parliament has sought to achieve the same general objective as that which Australian common law had developed by the time of Pfennig, but it did so by the use of precise and different terminology.

The words 'substantially outweigh' in a statute cannot, in my opinion, be construed to have the meaning which the majority in Pfennig determined was the way in which the common law balancing exercise should be conducted. The 'no rational explanation' test may result in a trial judge failing to give adequate consideration to the actual prejudice in the specific case which the probative value of the evidence must substantially outweigh.

Section 101(2) calls for a balancing exercise which can only be conducted on the facts of each case. It requires the Court to make a judgment, rather than to exercise a discretion. (See R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326 at 333, [20] per Sheller JA; F Bennion 'Distinguishing Judgment and Discretion' [2000] Public Law 368.) The 'no rational explanation' test focuses on one only of the two matters to be balanced - by requiring a high test of probative value - thereby averting any balancing process. I am unable to construe s101(2) to that effect.

My conclusion in relation to the construction of s101(2) should not be understood to suggest that the stringency of the approach, culminating in the Pfennig test, is never appropriate when the judgment for which the section calls has to be made. There may well be cases where, on the facts, it would not be open to conclude that the probative value of particular evidence substantially outweighs its prejudicial effect, unless the 'no rational explanation' test were satisfied."

39 In Tasmania v S [2004] TASSC 84, I followed the view of the majority in R v Ellis (supra) for the reasons expressed at pars8 - 13. I adhere to my reasons in that case.

40 In the balancing exercise, the reasonable possibility of concoction or contamination may deprive the evidence of its significant probative value and/or may result in its significant probative value being substantially outweighed by its prejudicial effect, when considered in the light of other evidence adduced, or to be adduced.

41 R v Ellis was adopted by the New South Wales Court of Criminal Appeal, differently constituted, in R v Mason (2003) 140 A Crim R 274 at 282, and subsequently in the ACT by Gray J in R v Gibbs [2004] ACTSC 63; (2004) 146 A Crim R 503 at 508 - 510 .

42 The New South Wales Court of Criminal Appeal has recently considered the tendency and coincidence provisions in:

* R v Nassif [2004] NSWCCA 433 - Davidson JA, Simpson and Adams JJ - 16 December 2004;

* R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 - McClellan CJ at CL, Simpson and Rothman JJ - 23 September 2005;

* R v Anna Zhang [2005] NSWCCA 437 - Basten JA, Simpson and Buddin JJ - 14 December 2005.

43 R v Nassif was an appeal from an interlocutory decision made in the District Court (NSW) refusing an application to sever counts on the indictment. For present purposes it is unnecessary to discuss this case for the relevant principles are more fully explored in R v Fletcher and R v Zhang.

44 In Fletcher, at 315, Simpson J drew attention to the New South Wales equivalent to the Code, s402(1). Relevant to the issues in this case, and to the issues raised in Fletcher, this subsection provides for the following discrete grounds of appeal:

45 At 316, Simpson J stated that a decision about the admissibility of evidence necessarily involves the determination of a question of law. However, she then drew a distinction between a decision about admissibility of evidence simpliciter, and a decision about the admissibility of evidence based on the exercise of a statutory discretion, or as a result of "an evaluation process" such as that contained in the Act, s97(1). Her Honour set out what she described as the evaluative process required by the Act, s97(1) at 316:

"(i) the actual probative value to be ascribed to a particular piece of evidence is committed to the tribunal of fact (in this case, the jury);

(ii) even where the judge is the tribunal of fact, it is not ordinarily possible finally to determine the actual probative value of any piece of evidence until the evidence in the case is complete. This is explicitly recognised in s97(1)(b), which envisages that the evaluation of the probative value of the evidence in question is to be made having regard to other evidence 'to be adduced', and implicitly by the use of the subjunctive 'would not' in s97(1)(b).

(iii) whether a particular piece of evidence is capable of being ascribed probative value is to be determined by the trial judge; this is to be done by reference to the test prescribed in the definition of 'probative value' contained in the Dictionary and involves an assessment of the extent to which that evidence could rationally affect (ie is capable of rationally affecting) the probability of the existence of a fact in issue;

(iv) the task that a trial judge undertakes under s97(1) involves a two-step process: firstly, the assessment of the extent to which the evidence in question has the capacity rationally to affect the probability of the existence of a fact in issue; and, secondly, (where the judge concludes that the evidence has that capacity) an assessment and prediction of the probative value that the jury might ascribe to the evidence. The evidence is not to be admitted if the judge concludes that the evidence, either alone or in conjunction with other evidence already adduced or to be adduced, would not have significant probative value, i.e. if the judge concludes that the jury would not regard the evidence as having probative value, and to a significant degree (in the sense explained by Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457). If the determination is that, notwithstanding that the evidence would have probative value, its probative value would not be significant, then the evidence is not admissible."

46 Simpson J then drew attention to the fact that s97(1) involves an evaluative and predictive exercise to which there will often be no clear simple answer and in respect of which "reasonable minds will, on occasions, arrive at different results". Accordingly, with respect to appellate review of a decision to admit tendency evidence, Simpson J said, at 317:

"A decision to admit or reject evidence tendered under s97(1) must, obviously, be a decision based upon the information and material available to the judge at the time the decision is made. It is a decision involving 'a degree and value judgment' (a phrase drawn from remarks made in the High Court in Fleming v Hutchinson (1991) 66 ALJR 211, when refusing special leave to appeal in an application which otherwise has no bearing upon the present case). Sackville J appears to have taken a similar view in Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51. Such a decision is reviewable on appeal only on the principles stated in House v The King [1936] HCA 40; (1936) 55 CLR 499; see also R v Milton [2004] NSWCCA 195 at [33] and Jacara at [75]."

47 McClellan CJ agreed with Simpson J's reasons for judgment. Rothman J found it unnecessary to decide whether appellate review of a finding that evidence had significant probative value was to be in accordance with the principles in House v R [1936] HCA 40; (1936) 55 CLR 499, but agreed that ss97(1) and 101(2) called for a balancing exercise.

48 R v Anna Zhang concerned coincidence evidence. Simpson J followed her decision in Fletcher. With respect to the essence of the judicial task imposed by s98(1), her Honour said, at par139:

"(i) coincidence evidence is not to be admitted if the court thinks that evidence would not, either by itself, or having regard to other evidence already adduced, or anticipated, have significant probative value;

(ii) probative value is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue (see the Dictionary to the Evidence Act);

(iii) the actual probative value to be assigned to any item of evidence is a question for the tribunal of fact - here, the jury;

(iv) the probative value actually to be assigned to any item of evidence cannot finally be determined until all of the evidence in the case is complete;

(v) the task of the judge in determining whether to admit evidence tendered as coincidence evidence is therefore essentially an evaluative and predictive one. The judge is required, firstly, to determine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue; secondly (if that determination is affirmative) to evaluate, in the light of any evidence already adduced, and evidence that is anticipated, the likelihood that the jury would assign the evidence significant (in the sense explained by Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457) probative value. If the evaluation results in a conclusion that the jury would be likely to assign the evidence significant probative value, the evidence is admissible. If the assessment is otherwise, s98 mandates that the evidence is not to be admitted."

49 Buddin J expressed his agreement with Simpson J. However, Basten JA took a contrary view with respect to the nature of appellate review of a decision that tendency or coincidence evidence had or had not significant probative value. With respect to Simpson J's views in Fletcher, he said, at par45 :

"More importantly, her Honour suggested in the same paragraph that appellate challenge to such a decision, which involves 'an evaluative process', may only be made in limited circumstances which she identified at [48] in Fletcher by reference to the principles established in House v The King [1936] HCA 40; (1936) 55 CLR 499, at 505. House was concerned with the basis upon which an appellate court might interfere with a particular exercise of the discretionary power of a sentencing judge. However, there is a distinction in principle, even if the dividing line may be blurred in particular circumstances, between the exercise of a discretionary power and the making of a finding of fact which involves a level of 'evaluation and judgment': see, in a different context, Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [10] ff (Gleeson CJ, Gaudron and Hayne JJ), [115]-[116] (Callinan J). As presently advised, I would take the view that an accused should have no less protection under s 6(1) from an erroneous ruling by a trial judge than that enjoyed by a civil litigant albeit on an appeal by way of rehearing. The correct approach to the exercise of evaluating the evidence should follow that identified in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531."

50 His Honour rejected as inappropriate, a two-stage approach advocated by Simpson J whereby a trial judge firstly determines whether the evidence is capable of having probative value (as defined), and secondly evaluates, in the light of evidence adduced and evidence likely to be adduced, the likelihood of the jury assigning the probative value of the evidence as "significant". At par46, Bastin JA said that while an assessment of prejudicial effect as enacted by the Act, s101(2), called for an assessment of the likely effect of the evidence on the jury, when addressing the issue of "significant probative value", the decision was for the judge without second-guessing the jury. It followed, in Bastin JA's view, that appellate review of a s97(1) or s98(1) decision was not to be conducted in accordance with the principles in House v R.

51 With great respect to her Honour, I think that Bastin JA's view has much to commend it. Simpson J correctly stated that the actual probative value was ultimately a question for the jury. This led her to the conclusion that whether the evidence had significant probative value must also ultimately be a question for the jury, so the trial judge's task must be one of evaluating the likely view that the jury would take of the probative value of the evidence. However, as Bastin JA points out, the definition of probative value is "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". He said at par46:

"Evidence has significant probative value if it could have such an effect, to a significant extent. The trial judge is not required to second-guess the jury: the judge must make his or her own assessment of probative value for the purposes of s 98."

52 Whether or not evidence is admissible is a question of law. The determination of the question may require the trial judge to find certain facts, the existence of which constitute a condition precedent for the admission of the evidence. See Sinclair v R [1946] HCA 55; (1946) 73 CLR 316 at 325 - 326. In cases where the admission of evidence is dependent upon an evaluation process such as that imposed by the Act, ss97(1) and 98(1), the determination of the trial judge is, as Spigelman CJ said in Ellis, not an exercise of discretion, but a matter of judgment. This was the view taken by the Court of Appeal (UK) in R v Viola [1982] 3 All ER 73. In that case the issue was the refusal to permit questions concerning the sexual experience of an alleged rape victim. Resolution of the issue required the trial judge to consider whether it would be "unfair" to the accused to refuse permission to ask the questions. Lord Lane CJ said at 77 that:

"... it is wrong to speak of a judge's 'discretion' in this context. The judge has to make a judgment whether he is satisfied or not of the terms of s2. But once having reached his judgment on the particular facts he has no discretion. If he comes to the conclusion that it would be unfair to exclude the evidence, then the evidence has to be admitted and the questions have to be allowed."

53 So too, if the judgment is that the evidence has significant probative value and also that that value substantially outweighs the prejudicial effect, it seems to me that no discretion arises. The only judgment is that the evidence is admissible. It is immaterial that different minds might have reached a different conclusion. Lord Lane concluded that with respect to appellate review, that the appeal court is in just as good a position as the trial court to examine the correctness of the judgment. So too, is this Court in as good a position to review a ruling about the evidence admitted pursuant to ss97(1), 98(1) and 101(2).

54 The principles of appellate review of an exercise of a judicial discretion are well settled. See House v R (supra). However, difficulty often arises with respect to whether a decision is a discretionary one or not. In his book, "Similar Facts", Dr Forbes says at 165:

"In its more precise sense, 'discretion', in this field [similar fact evidence] means a power to exclude evidence when there is no legal obligation to do so. In a looser sense 'discretion' refers to a process of judicial assessment which is somewhat subjective but which, once completed, characterises evidence as strictly admissible or inadmissible, as the case may be. It is to some extent a matter of personal opinion whether facts are strikingly similar, or more probative than prejudicial, but having arrived at a negative opinion on these points the judge has no 'discretion'; the evidence must be excluded."

55 Speaking of the common law rule relating to tendency evidence, Gibbs ACJ (as he then was) said in Markby v R [1978] HCA 29; (1978) 140 CLR 108 at 117, "Although the judgment which the judge is required to make is to some extent discretionary, the rule of exclusion is a rule of law and not of discretion ...". Although the Act has altered the test for the admissibility of tendency evidence from that developed by the common law, ss97(1), 98(1) and 101(2) are expressed in exclusionary terms. It seems to me unlikely that statutory expression of the old Makin exclusionary rule has resulted in a radically different approach to the appellate review of trial decisions concerning the admission of important evidence. Admissibility of this evidence is not a matter left to the unfettered discretion of the trial judge, it is left to his or her judgment which, if wrong, will be reviewed. This approach is, I believe, consistent with that of Spigelman CJ in Ellis.

56 Counsel for the appellant and counsel for the respondent were agreed that the proper test for a review of the issue on this appeal was that laid down in House v R. Notwithstanding the foregoing, I agree with them because the issue on the appeal is not whether the evidence of one complainant was admissible on the trial concerning the other complainant, but whether there was a miscarriage of justice by reason of the learned trial judge failing to exercise a power conferred on him in discretionary terms by the Code, s378(1) to discharge the jury. In Crofts v R [1996] HCA 22; (1996) 186 CLR 427, it was held, at 440, that the test for an order for the discharge of a jury was "whether in the circumstances ... there was such a high degree of necessity for the jury's discharge that the failure to have ordered such a discharge has resulted in a mistrial." A consideration of that issue encompasses an enquiry whether error of law attended the admission of the evidence of one complainant on the trial with respect to the other.

57 The similarity between the handwriting on the letter B said she wrote and the one she denied she wrote is compelling evidence that her denial was a lie. That evidence is supported by the same mis-spelling "molestering" in both letters. However, a false denial and the inclusion of A in the first letter but not the second, does not necessarily lead to a conclusion that it is reasonably possible that the evidence of A and/or B is concocted or contaminated. In Hoch (supra) at 297, the judgment of the majority posed the question, "whether in the light of common sense and experience [the evidence] is capable of reasonable explanation on the basis of concoction". In R v Robertson (1997) 91 A Crim R 388, at 409 Ambrose J set out the question posed in the majority judgment and continued:

"To my mind this language implies that the trial judge may use the same sort of commonsense and experience in determining that question as used in the practice reflected in Ananthanarayanan and Ryder. Stated shortly it is necessary for the trial judge to determine whether there is a real chance of concoction or contamination rather than a merely speculative chance. Similar facts could not be reasonably explained on the basis of concoction unless there was a real chance of it. To determine whether there is a real chance the trial judge must look at the facts of the case before him and determine what were the circumstances of the witnesses sought to be called to give similar fact evidence. Undoubtedly where such witnesses are in close relationship and there is both an opportunity and motivation to concoct and they give evidence of the same sorts of sexual behaviour on the part of an accused person, the determination of admissibility on the facts in Hoch and Youngson will perhaps be a compelling indication of the determination required."

58 See also Hickey v R [2002] WASCA 321; (2002) 136 A Crim R 150 at 155. Far from a motive for concocting false allegations, there was evidence, referred to by the learned trial judge at par15 of his reasons, and which I have already set out, to show that both A and B loved the appellant and saw no reason to do him harm. The appellant corroborates the evidence of A and B to this effect in his interview with police. Asked, "How is your relationship with your children", the appellant said, "Very good, very good". The police showed the appellant the letter that A wrote and he said, "I feel for [A] because you've only got to read that letter ... I can tell you know, I would say that my kids love me dearly; as I do them". A's letter also speaks of the appellant in the fondest terms.

59 It is true that A and B had every opportunity to discuss the appellant's alleged unlawful conduct for they lived in the same house, but it does not follow from this fact alone that it is reasonably possible that their evidence was concocted or contaminated.

60 The extent of the similarities set out in the reasons of the learned trial judge make it unlikely that there had been concoction and, curiously, the dis-similarities also point away from concoction. B's evidence is of no more than three aggravated sexual assaults over a relatively short period, whereas A's evidence was of aggravated sexual assaults, indecent assaults, and unlawful sexual intercourse or rape over several years.

61 Both A and B denied that they discussed any sexual abuse prior to speaking to their mother not long before the appellant's arrest. The reference to A in the letter that B denied writing does not necessarily contradict their evidence to that effect, for B may have seen or heard conduct which led her to believe that A had been sexually abused. After writing about it, B may have changed her mind about including A in her letter and started another one.

62 Attention was focussed on the reference to A in the first letter but not in the second, for to those learned in the law of evidence, it suggests a deliberate omission to avoid a suggestion of concoction being made later. But B's evidence was that she did not know it was important that she not discuss sexual abuse with A and there is absolutely no reason to think that the reference to A in one letter, but not in the other, had anything to do with avoiding a suggestion of concoction.

63 It is true that a lie by B affects her credit generally, which includes the weight that should be given to her evidence that she did not discuss sexual abuse with A until after the disclosure to their mother. However, there are many possibilities that do not make concoction a reasonable possibility and destroy the strong probative value arising from the striking similarities, not the least of which is that she had "spied" on A and the appellant on one or more occasions, but due to feelings of guilt did not want her conduct to be revealed and so told the lie about the letter.

64 In addition to the strong evidence that both A and B loved the appellant, making concoction an unlikely possibility, there were some answers given by B in her evidence that showed a strong disinclination to talk about the sexual abuse. Under cross-examination she said that she did not talk to her sister about any details of the appellant's conduct. She said, "It's not something that you really want to talk about". She said, "We haven't talked about it and still haven't now". She was asked if she realised it was important "that you haven't talked about it" and B replied, "No, oh well, I suppose it is now that I am in a court room or whatever, but at the time I didn't know that it was important not to talk about it".

65 The learned trial judge said at par16 of his reasons for judgment:

"Whilst the evidence concerning the letters might raise doubts as to the general credibility of the complainants, particularly B, I think its relevance to the question of concoction is peripheral at best. B told her mother that her father had sexually molested her, and later said something to a school counsellor which resulted in the police being contacted. I do not see how the information that she began writing a letter to her family about sexual molestation that included a reference to A, wrote a completed letter to her family mentioning the sexual molestation but not mentioning A, threw both letters away, and then falsely denied having written the uncompleted document, tends to suggest that the allegations she made first to her mother, then apparently to a school counsellor, and then to the police, are the product of a conspiracy or concoction. When she threw the letters away prior to her father's arrest she almost certainly could not have known that her evidence might be more valuable if she and A had not discussed their experiences or allegations. She may have some childish reason for covering up some aspects of her letter-writing activities. However, in all the circumstances, and particularly in the absence of any evidence suggesting a sufficient motive for the complainants to invent false allegations of sexual abuse, I am not persuaded that the evidence concerning the letters suggests any real likelihood that either of the complainants would have taken advantage of their undoubted opportunity to concoct false allegations. Generally speaking, I considered them to be credible and reliable witnesses."

66 No error of law is apparent in that conclusion. The learned trial judge correctly described a reasonable possibility that the evidence of A and/or B had been contaminated as fanciful. The learned trial judge gave the jury careful and detailed directions about the use that they might make of the evidence of each complainant and accompanied his directions with clear warnings about not engaging in the impermissible reasoning process. Accordingly, in my view, not only was there no miscarriage of justice by reason of the failure to discharge the jury, the learned trial judge's decision not to do so was correct in the circumstances of the case. I would dismiss the appeal against conviction.

67 The learned trial judge made detailed findings of fact and gave detailed reasons for the imposition of a 7½-year sentence of imprisonment. The appellant made no challenge to any of those findings of fact.

68 As mentioned at the beginning of my reasons for judgment, the Crown case at trial with respect to A was that the appellant first sexually assaulted her in about 1998 or 1999. Thereafter, the appellant committed the crime of aggravated sexual assault and/or indecent assault on a weekly basis. In about the end of 2001 or early 2002, the appellant first had vaginal intercourse with A and this continued on a regular basis thereafter until 1 December 2002.

69 However, by particulars delivered to the defence, the Crown confined its case to six occasions when A was the victim of a sexual assault, viz:

* the first and second occasions when the appellant had sexual intercourse with A;

* sexual assault when showing a pornographic video;

* second last and last occasion of sexual intercourse.

70 Although the learned trial judge found A to have been a credible witness, because her evidence was that on all but the last occasion, merely that the appellant "touched" her, or touched her on the vagina, the learned trial judge said that he was not satisfied beyond reasonable doubt that on any of the first five occasions the appellant actually digitally penetrated A's vagina, thereby committing the crime of aggravated sexual assault. His Honour said that he was not satisfied beyond reasonable doubt that on the occasion involving the pornographic video the appellant indecently assaulted A.

71 Because of the conflict between the date A told police that sexual intercourse first occurred, and the date she gave in evidence at trial, the learned trial judge said that he could only be satisfied that the criminal conduct spanned a period of about 13 months. He found that during that period the appellant had sexual intercourse with A five times. He found that any consent that A gave on each of those five occasions was given because she was overborne by the nature and position of her father. He expressed the view, although in the circumstances unnecessarily, that any belief that the appellant might have had that A was consenting, was not one that would have been based on reasonable grounds and found that on the five occasions the appellant raped A.

72 His Honour observed that the commission of the other sexual crimes not the subject of particulars was not a circumstance of aggravation, but did disentitle the accused to any sentencing discount that might have arisen from the fact that he only raped her five times.

73 With respect to B, the learned trial judge found that all three charged aggravated assaults occurred by the appellant putting his fingers into her vagina and masturbating himself.

74 Although at the time of sentencing, neither A nor B were showing signs of serious psychological harm, there remained, of course, a real risk that this might surface later in their lives.

75 The appellant was 46 years old at the time of sentencing. He had no prior convictions for sexual crimes, but five prior convictions for assault or assaulting a police officer, and convictions in relation to social security fraud. The learned trial judge found that the appellant was not remorseful but regretted the loss of his children. The learned trial judge correctly observed:

"The prisoner sexually abused one of his daughters over an extended period, and was starting to abuse another when these crimes were reported. In doing so he abused his position as their father, and placed them at risk of very serious long term psychological consequences. I should impose a sentence that will be a deterrent to men who might be tempted to behave as he did."

76 KBT v R (1997) 191 CLR is authority for the proposition that the actus reus of the crime of maintaining an unlawful sexual relationship with a young person is the commission of one or more of the crimes identified by the Code, s125A(3). The only relief for the ordinary rules of criminal pleading and proof is provided by s125A(4)(a) which provides that:

"It is not necessary to prove the dates on which any of the unlawful sexual acts were committed or the exact circumstances in which any of the unlawful sexual acts were committed;"

77 However, in my experience the Crown seldom takes full advantage of this subsection and confines its allegations to occasions that could mostly have been pleaded as separate crimes. In many cases, although a date may be difficult to provide, the circumstances surrounding an alleged event will provide all the particularity that is required by s125A. For example, in the present case the Crown could have relied upon the first and second sexual assaults on A at the very least, which would have enabled the learned sentencing judge to find that the criminal conduct spanned a period of some 3 - 4 years instead of 13 months. However, the case was put to the jury upon the basis that the crime charged was confined to criminal conduct on at least three of six specified occasions and the learned sentencing judge was correct to confine imposition of sentence to those crimes that he found had been committed on those occasions.

78 In my opinion the sentence does not reflect general error in the exercise of the sentencing discretion. It was imposed with respect to sexual crimes committed on the appellant's daughters, in the case of one, over a sustained period of time. In the case of A, the crimes committed were rape. This was a case of a very serious breach of trust and there was no sign of remorse. Although it might be said that having regard to other sentences passed for the commission of the crime of maintaining an unlawful sexual relationship with a young person, the sentence is at the upper end of the range of appropriate sentences, it does not, as I say, reflect an undefined error in the exercise of the sentencing discretion. I would dismiss the appeal against sentence.

79 Subject to one aspect, I respectfully agree with all that is said by the learned Chief Justice in his reasons of judgment. However, concerning the question whether a determination by a trial judge as to the admissibility of tendency evidence under the Evidence Act 2001, s97(1), or of coincidence evidence under s98(1), at the same time having regard to the restrictions imposed by s101(2), involves the making of a judgment and not the exercise of a discretion, I wish to add some comments.

80 The admissibility of such evidence depends on the Act and it is to the Act that one must look first for guidance. Part 11 contains discrete provisions that provide for the exercise of judicial discretions. It is headed "Discretions to exclude evidence" and ss135 and 136 contain general discretions to exclude or limit evidence. For example, s135 provides (inter alia) that "the court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might ... be unfairly prejudicial to a party" (my italics). The application of that provision involves the making of a judgment, whether the probative value is substantially outweighed by the particular danger, and if so, there then arises the exercise of a discretion whether to refuse the admission of the evidence. The use of "may" makes it clear that a discretion is involved. That is made even clearer by the Acts Interpretation Act 1931, s10A(1), which provides that in an Act, "may" is to be construed as being discretionary or enabling, as the context requires.

81 On the other hand, although it is in Pt 11, s137 provides no discretion in its requirement that "in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant". If the judgment of a judicial officer is that the probative value is outweighed in that way, the evidence must be ruled inadmissible.

82 When the provisions of ss97(1), 98(1) and 101(2) are compared with those of ss135 and 136, it is apparent that the terms of the earlier sections do not provide for the exercise of discretions.

83 Support for the balancing tests in ss97(1), 98(1) and 101(2) not involving the exercise of discretions is also to be found in common law cases. In Pfennig v R [1995] HCA 7; (1995) 182 CLR 461 at 529 McHugh J, when dealing with the common law balancing test in determining whether the probative value of evidence outweighs its prejudicial effect, referred to the task of the judge as that of making a value judgment and at 515 made the point that "the recent cases emphasise that as a matter of law and not discretion the probative value of evidence revealing bad character or criminal propensity must be sufficiently strong to outweigh or clearly transcend the prejudicial effect of the evidence". That also appears to have been the view of Mason CJ, Deane and Dawson JJ in Pfennig. At 483 they made reference to the tension between probative force and prejudicial effect being governed by the principle that there must be no rational view of the evidence consistent with the innocence of the accused, adding that "unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle". That no discretion is involved is also supported by R v Boardman [1975] AC 421 at 457, where it was said by Lord Cross of Chelsea, who reflected the majority view in that case, that the question of admissibility, that is whether the prejudicial effect of similar fact evidence would outweigh its probative value, is a question of law, not of discretion, and also one of degree.

84 In R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 at 718 Spigelman CJ, with whose judgment the other members of the Court of Criminal Appeal agreed, said of s101(2) that it calls for a balancing exercise but "it requires the Court to make a judgment, rather than to exercise a discretion", citing Sheller JA in Blick (2000) A Crim R 326 at 333 par[20]. However, in the previous paragraph, Sheller JA expressed the view that "it is probably correct to say that the product of that process is a judgment of the sort which, in terms of appellate review, is analogous to the exercise of a judicial discretion". That was the view of Simpson J, with whom McClennan CJ agreed, in R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 at 317, when she determined that a decision to admit or reject evidence tendered under s97(1) is reviewable only on the principles stated in House v R [1936] HCA 40; (1936) 55 CLR 499, particularly because the decision involves a degree and value judgment. However, in R v Zhang [2005] NSWCCA 437 at [45] Basten JA disagreed and considered that the correct approach to the exercise of evaluating the evidence should follow that identified in Warren v Coombes [1979] HCA 9; (1939) 142 CLR 531.

85 Support for both views can be found in the cases and which view is correct is not readily determined. On the hearing of the appeal, counsel for both parties made their submissions upon the basis that the principles in House v R are applicable to the question whether Blow J erred when he held that the evidence of each complainant was admissible on the count concerning the other complainant. As a result, the Court has not had the benefit of reasoned argument and I do not wish to express a view one way or the other. It is unnecessary to do so in any event because, for the reasons given by the Chief Justice, the decision of Blow J was the correct one.

86 I have had the opportunity to read the detailed reasons for judgment of Underwood CJ and those of Crawford J which he limited to a particular issue.

87 I agree with the reasons of Underwood CJ and would also dismiss the appeal against both conviction and sentence.

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