The second was to give the jury directions warning them of the danger of identification evidence.
54 The first direction would not focus attention on the real prejudice of the evidence, that is that the jury might misuse it as general propensity evidence without considering whether the tendency for which it was admitted, that is "a tendency on the part of the offender to have some obsessive fixation with breasts", either arose on the evidence or, if it did, was sufficient, by itself or when taken with other evidence, to identify the applicant as the offender.
55 Ultimately it was a circumstantial case against the applicant in relation to the counts against JG, subject to what the jury might make of the admissions allegedly made by the applicant. That is a matter to which I shall return shortly. But the jury would have to be satisfied that there was no reasonable possibility that it was some person other than the applicant who attacked JG. Unless the Judge determined what other evidence there was, if any, that the prosecution could rely upon to identify the appellant as the attacker of JG and the probative value of that evidence, it was no answer to the prejudice arising from the admission of the evidence that the tendency evidence was not itself sufficient to give rise to a conviction on counts 7 to 11. If the other evidence had little probative value by itself, then the likelihood was that the prejudicial aspect of the tendency evidence would still outweigh the combined probative value of the tendency evidence and the other evidence in the prosecution case.
56 The second direction was of little, if any, relevance. Presumably his Honour had in mind the directions required to be given in a case of identification evidence, where the evidence is visual or aural identification. The Evidence Act says nothing about identification by means such as the use of coincidence or tendency reasoning or by circumstantial evidence generally. Nor does the common law. The courts have not developed any special knowledge about such identification evidence about which a jury needs to be warned under s 165 of the Evidence Act or otherwise. In the present case the only danger that arose in the identification of the applicant as the offender was the danger in the use of the tendency evidence. A general direction about the danger of identification evidence would be more likely to confuse the jury than assist in overcoming the prejudice arising from the admission of the tendency evidence.
57 Further, the trial judge never attempted to determine the probative value of the evidence other than to the degree it was necessary to pass through the s 97 gate of admissibility. Unless he performed this task he could never properly carry out the weighing exercise required under s 101(2). But in any event, as I have indicated, his reasons reveal that he failed to address the real issue involved in the determination of whether the evidence should be admitted. Further, in deciding that he could ameliorate any prejudicial effect of the evidence, the Judge took into account an irrelevant consideration, being the effect of a direction or warning in relation to the danger of identification evidence.
58 The Judge's determination to admit the evidence, as disclosed by his reasons, was erroneous. In order to determine whether a miscarriage of justice arose, this Court must consider for itself whether the evidence in relation to counts 1 to 6 ought to have been admitted in respect of counts 7 to 11.
Admissibility of the tendency evidence
59 The Crown points out, rightly, that the admissibility of tendency evidence cannot be considered in a vacuum. The decision whether to admit the evidence must be considered in light of the other evidence relied upon by the Crown to prove that the accused was the person who attacked JG. If the tendency identified stood alone in identifying the appellant as the offender in the JG offences, it would have to be sufficiently peculiar or singular to amount to what has been described as a "hallmark" or "signature" of the appellant such that it would offend common sense to exclude it.
60 But one of the difficulties in the present case is appreciating exactly what was the tendency being relied upon by the Crown as distinct from the general circumstances in which the tendency was displayed. As Simpson J noted in R v Nassif [2004] NSWCCA 433 at [51] "the more numerous the claims of tendency evidence, and the more specific, the stronger the probative value. And thus the more likely the admission of the evidence". But, of course, the converse is true. The more general the tendency relied upon, the less likely is it to have sufficient probative value to outweigh the prejudicial effect arising from propensity evidence generally.
61 In the trial judge's judgment, quoted above, the tendency was described as "to have some obsessive fixation with breasts". Yet the Crown's description of the tendency in its written submissions on the voir dire hearing on the admissibility of the evidence had a number of attributes being: to frequent secluded bushland locations where vulnerable females might be located; to verbally and or physically threaten such females to get them to comply with his demands; to have a particular interests in their breasts; to sexually assault them against their will; and to do so knowing they were not consenting or willing to participate.
62 In my opinion, the tendency evidence obtains no more probative value simply by adding general factors to describe the tendency that have by themselves little significance. The result may be simply to distract a jury from that task of determining whether there is a tendency that has been proved from one set of facts, here from the evidence led on counts 1 to 6, and is present in another set of facts, here in the evidence to support counts 7 to 11. Much of the Crown's description of the tendency was surplusage; it identified four attributes that were in truth only one, if the attribute was compendiously described.
63 Stripped to its fundamental elements, the Crown was alleging a tendency to sexual assault females in secluded locations with a particular interest in their breasts. The Crown was driven to generalise the tendency because of the difficulty of finding a specific tendency from the evidence in counts 1 to 6 that could be applied in counts 7 to 11. The evidence to prove the appellant committed the offences in counts 1 to 6 was coincidence evidence. The facts giving rise to the coincidence were: a man of 20 to 30 with athletic build and tanned skin dressed in cycling clothing with helmet and dark glasses and a bike accosted lone women on isolated bush tracks and asked them, "Show me your tits" before attempting to sexually assault them by the use of threats or force.
64 However, the Crown could not rely upon coincidence evidence arising from counts 1 to 6 to prove counts 7 to 11 because there was none: the facts of the attacks upon JG were insufficiently similar to those surrounding the attacks upon the other three complaints. For example, the Crown could not rely upon the offender being dressed in cycling attire including helmet and sunglasses, and with a bike. Nor could it rely upon the type of the sexual assaults committed or the nature of the threats made or the words used. But in generalising a tendency derived from counts 1 to 6 to try to make it apply to counts 7 to 11 the probative value of the evidence was very significantly reduced.
65 A tendency to sexually assault females in secluded locations could not in my opinion have "significant probative value" to justify admission under s 97, even accepting that the gateway through that section is not particularly demanding. There is nothing peculiar about such a tendency that would identify a person with such a tendency as the offender against JG putting aside any other evidence of a persuasive nature to identify that offender. It would be more peculiar and, therefore, of significantly greater probative value, if the offender had a tendency to sexually assault females in the presence of members of the public. The addition of "bushland" to the "secluded location" in the description of the tendency was to my mind of no particular significance.
66 In my opinion the tendency did not gain significant probative value by the additional fact that the offender also had an interest in the victim's breasts, however that interest might be described. I do not find it peculiar and, hence of any particularly significant probative value, that a person who has a tendency to sexually assault females has a particular interest in what is the most prominent part of the female anatomy.
67 I might have been prepared to accept that the use of the words, "Show us your tits" as the opening gambit by the offender in each of the four assaults would have given rise to a tendency with sufficient specificity or peculiarity that it could survive the application of s 101(2). But the Crown was in a difficult position because the interest in breasts had to be generalised as there was no significant similarity in how that interest was demonstrated between counts 1 to 6, on the one hand, and counts 7 to 11, on the other.
68 In my opinion the tendency relied upon by the Crown, when stripped to its essence, could not meet the test in s 97. But, in any event, if that were the only evidence upon which the Crown could rely to prove that the appellant was the offender in the JG assaults, it would fail the application of s 101(2). The major difficulty for the Crown was that there was little to connect the JG offences with those committed against the other complainants. The singular fact of the offender in the earlier matters being dressed in cycling apparel and accompanied by a bike was absent, a matter which obviously concerned the trial judge.
69 The prejudicial effect of the tendency evidence was clearly very high. Even though it was insufficient itself to prove beyond reasonable doubt that it was the same offender who attacked JG has attacked the other complainants, it was consistent with a characteristic displayed by the offender in the attacks upon the four complainants in a vague, general sense. There was a very real risk that a jury would give the evidence of such a tendency more weight than it deserved by finding that the kind of person who committed one or more of counts 1 to 6 was also the kind of person who committed counts 7 to 11 and for that reason convict the appellant.
70 The evidence was so prejudicial that I doubt that it could have been made admissible even had there been other reliable evidence to suggest that it was the appellant who attacked JG. That is because I do not believe that the evidence had any more probative value than evidence of an offender's criminal record that showed he had committed similar offences in the past. However, the tendency evidence, such as it was, should be considered against other evidence that the appellant committed the JG offences.