McPhillamy v R

The grounds of appeal

1. The appellant's notice of appeal dated 22 March 2016 raised two grounds of appeal. They were: 1. The trial Judge erred in admitting the evidence of TR and SL as tendency evidence. 2. Alternatively, the decision to admit the evidence of TR and SL as tendency evidence resulted in a miscarriage of justice.
2. The appeal was first listed for hearing on 24 August 2016. That hearing was vacated because of the unavailability of the trial judge's reasons for admitting the evidence. The appeal was relisted for hearing on 7 October 2016. On 6 September the parties were advised by the Registrar that the District Court had indicated there was no transcript of the trial judge's reasons, and that no notes or any other material would be forthcoming in relation to them.
3. On 5 October 2016 the appellant filed supplementary written submissions, prepared by counsel who subsequently argued the appeal. Those submissions, in addition to reformulating the argument made in support of grounds 1 and 2, relied on the following additional ground: 3. The failure or refusal of the trial Judge to provide reasons for admitting the tendency evidence over objection resulted in a miscarriage of justice.
4. The appellant seeks an extension of the time for giving notice of that further ground. That extension is sought under r 25A(2) of the Criminal Appeal Rules (NSW). To the extent grounds 1 and 2 raise a mixed question of fact and law, in accordance with Criminal Appeal Act 1912 (NSW), s 5(1) the appellant requires leave to rely on them. The appellant also requires an extension of the time in which to give notice of his intention to appeal or apply for leave to appeal. The interests of justice require that these extensions of time and application for leave be granted.

The adjournment applications

1. At the commencement of the hearing of the appeal two further applications were made. Each was made on the basis that this Court would grant the appellant leave to raise ground 3. The first was the appellant's application to adjourn the hearing of this appeal to await the High Court's determination of the appeal from the decision in Hughes v R [2015] NSWCCA 330. Special leave to appeal was granted on 2 September 2016 (Hughes v The Queen [2016] HCATrans 201). The Crown opposed this application. The second was the Crown's application for an adjournment of the hearing of the appeal "of a week or two" to enable it to respond to ground 3. The granting of that application was likely to have resulted in the appeal not being heard until early in 2017.
2. At the conclusion of the argument in relation to these applications the Court indicated that it would proceed to hear the appeal. With respect to the Crown's application, it was considered that the difficulties presented by the late notification of ground 3 could be addressed by permitting the Crown to supplement its oral argument by further written submissions. That has occurred, and the appellant has replied to the Crown's supplementary submissions.
3. My reasons for joining in the rejection of the appellant's adjournment application may be stated shortly. At the time that application was heard it was little more than speculation whether an outcome of the appeal in Hughes would be to alter or explain the principles concerning the admission of tendency evidence in a way that also would determine the outcome of this appeal. As Starke J said in Ramsay v Aberfoyle Manufacturing (Australia) Pty Ltd (1935) 54 CLR 230 at 253, as a general rule "courts of law… can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future". The principles which apply to the determination of such an application are considered, albeit in the context of an application to adjourn a first instance hearing of civil proceedings, by McColl JA (Beazley and Tobias JJA agreeing) in City of Sydney Council v Satara [2007] NSWCA 148 esp at [29]-[34]. The present appeal was not one in which it could confidently be said that an issue of principle which arises, and will affect its outcome, also arises and will be determined in the appeal in Hughes. For that reason it was not appropriate to adjourn the hearing. Unfortunately, and for no reason associated with the other members of this Court, the delivery of the Court's judgment has not occurred as promptly as was then expected.

General consideration of the grounds of appeal

1. The grounds on which an appeal against conviction "shall" be allowed under s 6(1) of the Criminal Appeal Act include that the appellate court is satisfied the judgment of the court of trial should be set aside on the ground "of a wrong decision of any question of law, or that on any ground there was a miscarriage of justice". That command is subject to the proviso and the appeal might be dismissed if the court "considers that no substantial miscarriage of justice has actually occurred": Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14 at [25] (French CJ, Gummow, Hayne and Crennan JJ); Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16 at [43] (French CJ, Kiefel, Bell and Keane JJ) and [65] (Nettle J).
2. As the following discussion shows, the three grounds overlap and in the end require that the Court address whether there was a miscarriage of justice because the evidence was not admissible to prove the tendency as finally formulated and relied upon by the Crown.

Ground 1

1. Ground 1 is that at the commencement of the trial, and before the jury was empanelled, the trial judge erred in ruling that the evidence of SL and TR was admissible as tendency evidence. The appellant submits that the trial judge erred in concluding that evidence had "significant probative value" (s 97(1)(b)), and that the probative value of the evidence substantially outweighed its "prejudicial effect" (s 101(2)). The appellant is not able to support this ground under the second limb of s 6(1) ("a wrong decision on any question of law") because it is not possible in the absence of reasons to identify any particular error of law. That does not, however, prevent reliance on the failure to provide reasons as a separate error of law, hence ground 3.
2. There is a further complication in relation to ground 1, perhaps more theoretical than real, introduced by asserted uncertainty in this State as to the principles by reference to which an appeal from such a ruling is to be determined. That question, which arises in relation to each of these evaluative determinations, is whether that appellate review is to be determined by reference to the principles in House v The King (1936) 55 CLR 499 or those stated in Warren v Coombes (1979) 142 CLR 531, or on some other basis.
3. In DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 this Court (Simpson J, Kirby and Schmidt JJ agreeing; Spigelman CJ and Allsop P not deciding) held that an appeal from each of these determinations was by reference to House v The King: see at [157], [171] (Simpson J); [211] (Kirby J), [212] (Schmidt J). Although finding it unnecessary to decide this question, Spigelman CJ and Allsop P referred to the need for caution in treating these as representing the "exhaustive universe of alternatives (which they are not)"; and acknowledged that whilst there was a divergence of authority with respect to the basis for review of a decision under s 97(1), the predominant view was that of the majority: see at [4], [35], [43] (Spigelman CJ); and [88], [102], [104], [106] (Allsop P).
4. In Hughes, this Court (Beazley P, Schmidt and Button JJ) at [189] described as "accepted" that the review of a decision under s 101(2) is to be undertaken by reference to House v The King principles. The Court made no similar observation in relation to the review of a decision under s 97(1)(b). These questions were not addressed in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14.
5. The appellant's supplementary written submissions in support of this ground invited the Court to determine the question of admissibility for itself because it would be "inappropriate" to apply House v The King in circumstances where the primary judge has not provided reasons.
6. For the appellant to succeed on this ground he must show that the decision to admit the evidence was wrong at the time it was made, and by reference to the actual material before the trial judge: R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 at [36], [40] (Simpson J). However, the appellant's argument as made was not confined to that material. In support of his submission that the trial judge erred in assessing the evidence to have "significant probative value" the appellant referred to the way in which the evidence "properly analysed" functioned in the trial. And in relation to asserted error in assessing the prejudicial effect of the evidence, reference was made to the evidence given at trial by TR and SL that was claimed to indicate grooming behaviour by the appellant. At the same time the appellant's counsel accepted that these matters would be relevant to the resolution of ground 2.
7. If the trial judge's ruling involved error there would have been a "departure from trial according to law", and accordingly a miscarriage of justice: Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [18]-[19] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ); Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [13] (French CJ, Bell, Keane and Nettle JJ). There would remain the need to consider the application of the proviso which the Crown submitted depended on whether the evidence adduced (as distinct from that foreshadowed), and used to prove the tendency ultimately relied on, was properly admitted. This is the issue raised by ground 2.

Ground 2

1. Ground 2 is that the decision to admit the tendency evidence resulted in a miscarriage of justice within the third limb of s 6(1). As Gageler J explained in Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at 54: The words "on any ground" in paragraph (c) of the common form criminal appeal statute "do not postulate the demonstration of error" but rather "simply require that 'something occurred or did not occur' in the trial". The thing that occurred or did not occur in the trial may be an "irregularity" falling short of a failure to observe some condition essential to a satisfactory trial - such as a misdirection or non-direction of fact or what is shown to have been at the time of exercise or in the light of developments at the trial a wrong but legally available exercise of judicial discretion resulting in the admission of evidence prejudicial to the appellant. In those circumstances, it has been accepted that the criterion in paragraph (c) will be made out only where the appellant is able to establish a causal connection between the irregularity and the conviction in the sense that, but for the irregularity, the result might have been different and the appellant might have been acquitted.
2. In Fletcher, Simpson J (McClellan CJ at CL agreeing) similarly observed, in an appeal where it was also said that a miscarriage had resulted from the admission of tendency evidence, that the Court is able to review the ultimate effect of the evidence notwithstanding that no error could be demonstrated in the original determination that it be admitted: at [41]. Her Honour continued at [42]: An appellant may seek to establish a miscarriage of justice, demonstrable ex post facto, as a result of the admission (or rejection) of evidence, whether or not that decision was correct at the time it was made. The ultimate question is whether a miscarriage of justice has occurred, and that may be tested by reference to the evidence that was actually given and its impact upon the trial. Circumstances might arise that cause a miscarriage of justice even when the anterior decision to admit (or reject) evidence cannot be faulted. By way of example, a judge might correctly decide to admit evidence on the basis of a witness statement; if the witness's evidence as given does not conform to the contents of the statement, injustice may result. It could not, however, be said that the decision to admit the evidence was wrong.
3. Evidence Act, s 95(1) provides that evidence "must not be used" to prove a tendency unless that evidence is within the exception provided by s 97(1): R v AH (1997) 42 NSWLR 702 at 708 (Ireland J); El-Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10 at [38]-[39] (Leeming JA). It follows that there will have been a miscarriage of justice if, having regard to what occurred in the trial, it may be concluded that the evidence should not have been admitted.

Ground 3

1. Ground 3 is that the trial judge's failure to provide reasons resulted in a miscarriage of justice. The appellant submits that the failure to give reasons was itself an error of law and a fundamental departure from what was required for a fair trial. That is said to prevent the application of the proviso, irrespective of whether this Court was persuaded of the applicant's guilt to the requisite degree: Weiss at [45]-[46]; Baida Poultry at [21]-[23].
2. Although the Crown accepts that the decision to admit the tendency evidence was one that should have been accompanied by reasons, it submits that the absence of reasons did not constitute a miscarriage of justice to which the proviso cannot apply. In the Crown's submission the application of the proviso to such an error in a case such as the present one depends on whether the evidence was properly admitted taking account of the circumstances of the trial. If it was properly admitted the proviso would apply. That raises the same issue as ground 2.
3. In support of its submission that a failure to give reasons for an evidentiary ruling does not, without more, constitute a substantial miscarriage of justice, the Crown referred to this Court's decision in Madubuko v The Queen [2011] NSWCCA 135; (2011) 210 A Crim R 249. During cross-examination of one of two co-accused, that accused's record of interview was admitted against him but not against his co-accused. An application was made on behalf of the co-accused for a separate trial. That application was rejected. Promised reasons were not forthcoming. That failure was relied on as constituting an error of law requiring that the appeal be allowed. In rejecting that argument the Court (Hodgson JA, Hoeben J and Grove AJ agreeing) concluded that the failure to give reasons did not involve any fundamental procedural irregularity requiring a new trial. Hodgson JA summarised the position at [22]: Considering first the question of failure to give reasons, such failure does generally constitute an error of law where reasons are appropriate, but this does not necessarily require that an appeal be upheld. In particular, if the matter as to which reasons are not given is one on which an appeal court can come to its own view, and if that view is that the result arrived at by the primary judge was correct, then normally an appeal would be dismissed.
4. His Honour referred to the earlier decision in Evans v The Queen [2006] NSWCCA 277; (2006) 164 A Crim R 489 this Court (James J, Hidden and Hoeben JJ agreeing) in which the trial judge's failure to give reasons for a series of evidentiary and other rulings was held not to constitute "such a fundamental procedural irregularity as to warrant setting aside the appellant's convictions". At [272] James J noted that notwithstanding the absence of formal reasons, the trial judge's "reasons for making each of her rulings" could be inferred from the transcript and that it was possible "for this Court to determine whether her Honour erred in making the rulings".
5. In the appeal from that decision (Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59) Gummow and Hayne JJ recorded those matters without comment at [33] and proceeded to deal with the appellant's argument that a combination of errors at trial resulted in there being a substantial miscarriage of justice. Heydon J (with whom Crennan J agreed), although dissenting in the outcome, considered that a failure to give reasons, though erroneous in the sense that reasons should have been given, would not constitute a miscarriage of justice if the purpose for the giving of reasons could be achieved in other ways: at [246]. His Honour continued at [247]: … One thing that matters is whether the rulings were correct: they were. Another thing that matters is that miscarriages of justice be avoided, as distinct from procedural errors which are regrettable but do not cause any miscarriage of justice. The failure to give reasons can be procedurally unfair, but procedural unfairness is not to be looked for in the air: …
6. That is to say, a failure to give reasons will not ordinarily result in a substantial miscarriage of justice where there is no significant procedural unfairness which arose because the reasons were not available and where the appellate court is able to assess for itself whether the relevant ruling involved error. The appellant does not complain of any such procedural difficulties in the conduct of this trial. And he accepts that this Court is in a position to determine whether the evidence was wrongly admitted taking account of the circumstances of the trial and the way it was relied on.
7. In BG v R [2012] NSWCCA 139; (2012) 221 A Crim R 215 at [101], [137] (Adamson J, McClellan CJ at CL and McDougall J agreeing) and in Le v R [2012] NSWCCA 202 at [51], [65] (RA Hulme J, McClellan CJ at CL and Hall J agreeing), this Court applied the dicta of Heydon J in Evans in circumstances where a trial judge had failed to give reasons for a decision to continue a trial with 11 jurors. In disposing of each appeal the court was able to decide whether that decision had been correct, and concluded that it was, so that there was no miscarriage which justified the allowing of the appeal.
8. The appellant contends that the failure to give reasons constituted a "fundamental" error (in the sense described in Baiada at [22]-[23] (French CJ, Gummow, Hayne and Crennan JJ) and exemplified by AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [57]-[59] (Gummow and Hayne JJ), [109]-[110] (Heydon J). In support of that contention he relies on the decision of the Western Australian Full Court in Webb v The Queen (1994) 13 WAR 257. At the accused's trial for sexual assault of a 10 year old girl, his written record of interview which contained a confession was admitted over objection. The trial judge gave no reasons for that decision. The accused was convicted. On appeal, the Full Court (Ipp J, Malcolm CJ and Seaman J) concluded (at 271) that the absence of reasons involved legal error, in circumstances where the court could not determine whether the trial judge had "considered the true issues and … applied the appropriate legal principles". At the same time, the Crown case was described as "very much weaker" in the absence of that evidence (at 261). In allowing the appeal the Court did not consider the application of the proviso. However that is explicable, consistently with the principles referred to above, on the basis that it was not a case in which the appellate court could come to its own view as to whether the trial judge was correct in admitting the evidence. That is sufficient to distinguish that case. Finally, consistently with this Court's decisions in Evans and Madubuko, in R v McCullagh (No 3) [2007] VSCA 293; (2007) 179 A Crim R 334 the Victorian Court of Appeal applied the proviso to a failure to give rulings for a decision to admit evidence, having held that the decision of the trial judge to do so was not "plainly wrong" (at [65]).
9. In the circumstances it is appropriate first to consider ground 2. If that ground is upheld it will be unnecessary to consider grounds 1 or 3 which, in any event, would require consideration of the same question in relation to the application of the proviso.

The relevant statutory provisions

1. Tendency evidence is defined in the Dictionary to the Evidence Act as follows: tendency evidence means evidence of a kind referred to in subsection 97(1) that a party seeks to have adduced for the purpose referred to in that subsection.
2. Section 95(1) provides: 95. Use of evidence for other purposes (1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.
3. Sections 97(1)(b) and 101(2) relevantly provide: 97. The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: … (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. 101. Further restrictions on tendency evidence and coincidence evidence adduced by prosecution ... (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
4. The "probative value" of evidence is also defined in the Dictionary: probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

Section 97(1) and the assessment of significant probative value

1. Section 97(1) is concerned with the admissibility of evidence to prove a tendency to act or think in a particular way. It provides an exception to the operation of s 95 which otherwise prevents the use of evidence for the purpose of engaging tendency reasoning.
2. In Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206 at [360] this Court (Bathurst CJ, Hoeben CJ at CL and Simpson J) described that form of reasoning: The process of reasoning is: • on an occasion or occasions other than an occasion in question in the proceedings, a person acted in a particular way; • it can therefore be concluded or inferred that the person had a tendency to act in that way; • by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person acted in conformity with that tendency. Alternatively: • on an occasion or occasions other than on an occasion in question in the proceedings, a person had a particular state of mind; • it can therefore be concluded or inferred that the person had a tendency to have that state of mind; • by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person's state of mind conformed with that tendency. Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion.
3. Section 97 is to be contrasted with s 98 which is concerned with the admissibility of evidence adduced for the purpose of engaging coincidence reasoning. In the context of criminal proceedings such reasoning relies on evidence of the accused's involvement in events which have 'striking similarities', 'unusual features' or 'underlying unity' in common with the charged conduct so as to raise, as a matter of common sense and experience, the objective improbability of the charged event having occurred without the involvement of the accused: Hoch v The Queen (1988) 165 CLR 292 at 294-295 (Mason CJ, Wilson and Gaudron JJ). Each of these forms of reasoning may be employed relying on evidence of similar facts.
4. The nature of tendency evidence is described in the judgments of this Court in Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233 at [124] (Simpson J); Elomar at [253], [359]-[360] and Hughes at [160]. In IMM Gageler J citing Elomar said at [104]: The nature of tendency evidence adduced by the prosecution in a criminal trial is that it is evidence of another occasion or occasions on which the accused acted in a particular way. The evidence is adduced in order to provide a foundation for an inference that the accused has or had a tendency to act in that way or to have a particular state of mind, the existence of which tendency makes it more probable that the accused acted in a particular way or had a particular state of mind at the time or in the circumstances of the alleged offence. Tendency evidence is thus evidence the relevance of which lies in its capacity indirectly to affect the assessment of the probability of the existence of the fact in issue of the accused's action or state of mind at the time or in the circumstances of the alleged offence.
5. In addition to evidence of conduct which is likely to constitute similar fact evidence, evidence of "character", "reputation" or of the "tendency" itself may be adduced to prove a tendency or propensity. The tendency, which is the "particular matter" within the meaning of s 95(1) to which the exception in s 97 is directed, must be "to act in a particular way, or to have a particular state of mind".
6. One matter made clear by s 97 is that evidence may be admissible to prove a tendency to have a particular state of mind. In Elomar at [370]-[371] this Court rejected the suggestion that s 97 does not permit evidence to be used as establishing, or to establish, such a tendency: The Court of Appeal of Victoria has held that evidence of a state of mind is not admissible as tendency evidence: Velkoski v The Queen [2014] VSCA 121. At [173] the Court distilled a number of principles from the relevant authorities. It stated principle (f) in the following way: "(f) The offender's state of mind is frequently relied upon in the Crown's notice of tendency evidence to cover the offender's interest in particular victims and his willingness to act upon that interest. That the offender has such a state of mind discloses only rank propensity which is not admissible as tendency evidence. It shows only that he is the kind of person who is disposed to and commits crimes of the type charged. Resort to that particular state of mind to support tendency reasoning is impermissible, highly prejudicial and unnecessary. Once the jury is satisfied that the acts relied upon as tendency have been committed, the offender's state of mind adds nothing. Reference to it is calculated to divert the jury from focussing upon the extent to which the similar features of the previous acts render the occurrence of the offence charged more likely ..." (italics added) If, by this paragraph, the Victorian Court of Appeal is asserting that s 97 of the Evidence Act does not permit evidence of the offender's state of mind to be used as or establishing a particular tendency then, with respect, we consider it to be incorrect, and should not be followed in this State. There is no such limitation in the statute, the limitations on tendency evidence being those contained in s 97 itself and s 101. Further, at the point when admissibility of evidence is under consideration, it cannot be known whether "the jury is satisfied that the acts relied upon as tendency have been committed". Indeed, at that time, a jury may not have been empanelled, and, even if it has, will not have reached any conclusions about the commission of the tendency evidence acts. Evidence of the state of mind of the accused may be very relevant to their reaching that satisfaction. In the second place, the very point of s 97 is that evidence of a state of mind is, once the pre-conditions have been met, permissible to provide the foundation for, or part of the reasoning process towards, an inference that the person committed the offence charged. Paragraph 173 of Velkoski does not state the law as it is understood in NSW.
7. To satisfy the condition for admissibility in s 97 the tendency evidence must have "significant probative value". In IMM the majority (French CJ, Kiefel, Bell and Keane JJ) said of this requirement (at [46]): Cross on Evidence suggests that a "significant" probative value is a probative value which is "important" or "of consequence". The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding.
8. I do not understand Gageler J at [103] to suggest any different approach to understanding and applying this statutory language, the meaning of which is not able to be defined precisely. It follows that the significance of the probative value of the evidence must be assessed by reference to the issues which "arise for the consideration of the jury in reasoning that the evidence made a fact in issue more or less probable". That exercise is undertaken having regard to the other evidence (whether adduced or to be adduced) bearing on the existence of that fact.
9. In IMM the majority also held that in assessing the probative value of evidence, a trial judge must proceed on the assumption that the jury will accept the relevant evidence, and thus consider it as both credible and reliable: at [52]. Because the probative value of evidence is the "extent to which [it] could rationally affect the assessment of the probability of the existence of a fact in issue" that evaluation is to be undertaken taking the possible use to which the evidence might be put at its highest: at [44].
10. As the majority in IMM then said: "the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence": at [45]. Tendency evidence is circumstantial evidence.
11. It follows, as Hodgson JA observed in BP v R; R v BP [2010] NSWCCA 303 at [106] that "the probative value of [tendency] evidence will depend both on its probative value in establishing the [particularised] tendency and on the probative value of the tendency (if established) in relation to an issue in the case".
12. The same point was made by Sackville J (Whitlam and Mansfield JJ agreeing) in Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886 at [76]: … The probative value of the evidence as tendency evidence must depend on the circumstances of the case. The factors to take into account will usually include the cogency of the evidence relating to the conduct of the relevant person, the strength of the inference that can be drawn from that evidence as to the tendency of the person to act in a particular way and the extent to which that tendency increases the likelihood that the fact in issue occurred.
13. It is instructive at this point to consider how the probative value of such evidence was evaluated under the common law where, in order to be admissible, the evidence had to have "a strong degree of probative force": see, for example, Perry v The Queen (1982) 150 CLR 580 at 586, 589 (Gibbs CJ). In Pfennig v The Queen (1995) 182 CLR 461 Mason CJ, Deane and Dawson JJ said (at 483) that evidence relied on as engaging tendency reasoning has "greater cogency" if the evidence is "of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it…, so long as it has some specific connection with or relation to the issues for decision in the subject case". A distinction was drawn between evidence having those characteristics and "evidence of mere propensity, like evidence of a general criminal disposition having no identifiable hallmark" (at 483). The reference to evidence of "mere propensity" was to evidence that proved no more than that a person had a disposition or propensity. Such evidence was contrasted with evidence that was of a "particular distinctive propensity demonstrated by acts" (at 477). Under the English common law before the decision in Director of Public Prosecutions v Boardman [1975] AC 421 evidence of the former kind was not admissible.
14. Examples of the assessment of the cogency of such evidence are provided in the judgments of Hayne J and Heydon J in HML v The Queen (2008) 235 CLR 343; [2008] HCA 16. The accused was charged with two counts of unlawful sexual intercourse with his daughter who at the relevant time was under 12 years of age. Evidence was also led from the complainant of other uncharged sexual conduct that started when she was aged 7 and finished when she was aged 12. Four members of the Court (Gummow, Kirby, Hayne and Heydon JJ) considered that evidence of the uncharged sexual misconduct was admissible to show a sexual interest in the complainant which the accused had acted upon. Hayne J described at [171] the strength of that evidence in supporting an inference that the accused had committed the two charged offences as resulting because it was: … of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it" [Pfennig at [483]] which is directly connected with the issues for decision in the instant case. It has that "specific connexion with or relation to the issues for decision in the subject case" [Pfennig at [483]] because it shows the accused's willingness to use the complainant as the object of gratification of a sexual interest or attraction that is directed at the complainant.
15. Heydon J at [277] commented on the use of the evidence to indicate that both before and after the occasion of the charged offence "the accused had an ongoing sexual attraction to [his daughter] and sought gratification for that attraction by his conduct": … Were this use limited to proving a sexual attraction, it would have amounted only to evidence of a motive to engage in sexual misconduct, which might or might not be acted on, and if acted on, might or might not be acted on frequently. But the use went beyond supporting a motive to engage in sexual misconduct; it showed a disposition to act on that motive, and to do so nearly as frequently as opportunity permitted. This use of the evidence is not relevant only to the complainant's credit: it is relevant to the issue of whether the charged acts took place.
16. Returning to the language of s 97(1), as Basten JA emphasised in Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 (in the context of considering the Victorian Court of Appeal decision in Velkoski v R (2014) 45 VR 680; [2014] VSCA 121), the subsection focusses attention "on the precise logical connection between the evidence proffered and the elements of the offence charged" (at [42]). It does so by requiring that the evidence be adduced for the purpose of proving that a relevant person has or had a tendency "to act in particular way, or to have a particular state of mind" and that used for that purpose, the evidence have "significant probative value". Where the evidence is of "conduct" s 97 does not in terms require that for it to be admissible there be any 'underlying unity', 'pattern of conduct' or a common 'modus operandi' between that conduct and the conduct in issue (cf Velkoski at [171]). However, as Basten JA also said in Saoud at [44], used for the purpose of proving the particularised tendency, for the evidence to have significant probative value in relation to the conduct in issue will "almost inevitably require degrees of similarity".
17. In BP v R; R v BP, Hodgson JA made the same point at [108]: It is not necessary in criminal cases that the incidents relied on as evidence of the tendency be closely similar to the circumstances of the alleged offence, or that the tendency be a tendency to act in a way (or have a state of mind) that is closely similar to the act or state of mind alleged against the accused; or that there be a striking pattern of similarity between the incidents relied on and what is alleged against the accused: Ford at [38], [125], PWD at [64]-[65]. However, generally the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value. [Emphasis added].
18. In Hughes this Court, directing itself to the conduct relied on and the conduct in issue, emphasised that "the greater the similarities, the more readily will a court find that the evidence has significant probative value". That quality of the evidence is judged via the tendency sought to be proved and the tendency reasoning which it engages.
19. In what immediately follows I consider four decisions in this Court which have involved an evaluation of the probative value of tendency evidence in relation to the proof of charged sexual misconduct. Those decisions confirm that the specificity of the tendency to act or think which is sought to be proved and the congruity of the charged conduct with particular aspects of that tendency directly inform the strength of the inferential reasoning which the evidence is tendered to engage. It does so because that similarity strengthens the basis for the inference that on the charged occasion the accused acted as alleged. In Velkoski (at [144]) it was suggested that this Court's decisions in Fletcher and in PWD v R [2010] NSWCCA 209; (2010) 205 A Crim R 75 reveal a difference in approach to the assessment of the significant probative value of such evidence. Fletcher was said to apply a higher threshold to the satisfaction of that requirement than PWD which was described as reducing "the threshold for admissibility, in relation to tendency evidence, to behaviour that need not even be 'closely similar'" (Velkoski at [120]).
20. The accused in Fletcher was a parish priest, and the complainant an altar boy aged between 13 and 15 years at the time of the charged offences. They included acts of fellatio and anal intercourse by Fletcher on the complainant. A tendency notice was served notifying of the evidence of nine witnesses relied on to prove conduct which was extensively particularised. Simpson J (at [14]) described the evidence contained in the statements of those witnesses: … the statements documented what could reasonably be termed a pattern of behaviour attributed to the appellant. This included befriending local Catholic families, particularly those with young sons, and involving himself in the lives of the families. In some cases favouritism was directed to one family member, a young male. There was a good deal of evidence of sexually explicit, and what may, by many, be thought to be inappropriate, conversations with the young men. This included questioning them about their sexual activity (or lack of it), telling risqué jokes, showing a pornographic video, involving the boys in sexually overt conduct falling short of intercourse, and possession of pornographic magazines.
21. Noting that a "lay person may well be forgiven for thinking that evidence of a tendency to sexual misconduct with adolescent boys could rationally affect the assessment of the probability that the appellant sexually misconducted himself with the complainant as an adolescent" at [49], Simpson J then expressed a need for the exercise of caution (at [50]): But this is where caution needs to be exercised. While it may be tempting to think, for example, that evidence of a sexual attraction to male adolescents has probative value in a case where the allegations are, as here, of sexual misconduct with a male adolescent, an examination must be made of the nature of the sexual misconduct alleged and the degree to which it has similarities with the tendency evidence proffered. There will be cases where the similarities are so overwhelming as to amount to what, in pre-Evidence Act days was called "similar fact" evidence, showing "a striking similarity" between the acts alleged; and there will be cases where the similarities are of so little moment as to render the evidence probative of nothing. And there will be cases where reasonable minds may differ as to the extent to which proof of one fact or circumstance may rationally affect the assessment of the probability of the existence of another fact.
22. The appellant accused relied on differences between the sexual activity described by GG (one of the tendency witnesses) and the fact that the conduct that he described had occurred three or so years before the charged conduct. Simpson J was satisfied that this evidence was capable of having significant probative value because of the respects in which the charged conduct closely conformed to the tendency relied on (at [57]-[58]): … What was contained in the tendency material was capable of establishing a pattern of behaviour on the part of the appellant, incorporating at least the following features. GG was two or three years older than the complainant, and his allegations were of conduct three or four years earlier than that alleged by the complainant: both were therefore young adolescents, twelve, thirteen or fourteen, at the time of the alleged conduct. Both gave accounts of being members of practising Catholic families, who were befriended by the appellant. Both served as altar boys. Both recounted conversations of a sexual nature. Both recounted admonitions by the appellant not to divulge to anybody what had happened. Both recounted assertions made by the appellant that the activity was normal. There were accounts of two incidents, one by GG and one by the complainant, that were, indeed, of marked similarity. These were the act of indecency the subject of the first count, and a virtually identical act alleged by GG (although it was not admitted into evidence). …
23. The appeal in PWD was brought under Criminal Appeal Act, s 5F(3A). The respondent was charged with 10 counts of sexual misconduct against four male students, alleged to have been committed between 1977 and 1992 whilst he was the principal of a boarding school. The Crown relied on the evidence of each complainant and two further witnesses as tendency evidence in the case against each other complainant. The tendency was directed to the circumstances in which the offending occurred rather than to any "striking similarities" with the sexual misconduct committed upon each of the complainants. Detailed particulars were provided of what was described as the respondent's "pattern of behaviour" or "modus operandi", and of the tendencies which the circumstances leading to and involving the charged conduct established (at [35]-[36]).
24. Beazley JA (Buddin J and Barr AJ agreeing) held that the trial judge had erred in rejecting the evidence as not having significant probative value. The Crown's case in relation to the tendency evidence was summarised at [76]: … the Crown case was that the respondent had a sexual interest in young boys and for the purposes of gratification of that interest, he preyed upon boys in his care in a variety of circumstances, but all of which it is alleged involved some vulnerability. In the case of IB, he did not fit in, notwithstanding that he was successful in the school; MK had been in hospital undergoing treatment for what could only have been a difficult and embarrassing condition for a young boy; BW was in trouble for drinking and was sent to the respondent for disciplinary reasons, but was shown sexual attention instead, under the guise of that being a demonstration of how the respondent loved him; and ND was extremely homesick. Likewise, TD and RT [who were not complainants] were shown sexual attention in circumstances where each exhibited vulnerability.
25. In supporting that conclusion Beazley JA emphasised two aspects of the respondent's tendency which related to the circumstances in which the conduct had occurred. The first was that the "institutional setting facilitated the respondent's tendency and that it was a place where, under the guise of offering solace to boys who were vulnerable for the variety of reasons to which reference has been made, he was able to engage his sexual tendency" (at [81]). The second was the "element of selection and encouragement of the boys to whom [the respondent] directed his sexual attention: only boarders were involved, all of whom reported feelings of isolation, homesickness and not fitting in, although this exhibited itself variously as discussed in the outline of the evidence given above. A combination of the students' vulnerability and the respondent's authority enabled the respondent to act on his tendency to be sexually attracted to young male students" (at [83]). Her Honour described the tendency as being sexually attracted to young male students and acting on that "predilection in various ways and at different times, but in a setting where the students to whom he directed his sexual attentions were boarders, who were homesick, did not fit in with the normal pattern of school life in various ways… and who were thus vulnerable" (at [87]). When considering whether the charged conduct was established the similarity between the circumstances of that conduct and the tendency conduct provided a logical basis for inferring that the respondent had acted in conformity with the tendency on the charged occasion.
26. Ford (see [7] above) also involved a Crown appeal under s 5F(3A). The respondent was charged on a single indictment with three offences, each involving a different complainant - one of sexual intercourse without consent and two of indecent assault. The trial of the counts of indecent assault proceeded together and separately from the remaining count and resulted in a conviction on each count. At the trial of the remaining count of sexual intercourse the Crown sought to rely on the evidence of the other two complainants as tendency evidence. Following much procedural irregularity, not presently relevant, the evidence was held not to be admissible. This Court (Campbell JA, with whom Howie and Rothman JJ concurred in the result) set aside that ruling. One of the ways in which the Crown formulated the accused's tendency was (at [27]): … a tendency to act in a particular way, namely to sexually molest young women who (1) have stayed over at his house after attending a party, (2) have consumed a significant amount of alcohol, (3) are asleep, (4) where there is a risk of being discovered by others in the house.
27. The trial judge considered that to be admissible the tendency evidence "must itself show a tendency to commit acts that are closely similar to those that constitute the crime". Campbell JA rejected that "flaw" in the judge's reasoning. Fletcher (at [67]) was cited as an example of a case showing that there was "no need for the tendency to be to commit acts closely similar" to those charged. Campbell JA nevertheless concluded that the evidence had significant probative value. He reasoned that for a "man to sexually interfere with a female house guest while she is still asleep is fairly unusual. If the evidence of AG and ZM [the tendency witnesses] were to be accepted, that would not suffice to make out the charge concerning TL, but a jury could justifiably take the view that it increased the probability of TL's evidence concerning the elements of the crime charged being correct" (at [44]). There was a congruity between the specified tendency and the charged conduct which went beyond having a sexual interest in young women and being prepared to act upon it.
28. The last of the cases to which I will refer is Sokolowskyj v R [2014] NSWCCA 55; (2014) 239 A Crim R 528. The appellant was charged with having indecently assaulted an 8 year old child in a parents' room in a shopping centre, he having first latched the door. The tendency evidence was of three separate occasions on which the appellant had exposed himself to teenage or young adult women in a public place. The trial judge allowed the Crown to rely on that evidence to establish that "the accused had a tendency at the relevant time to have sexual urges and to act on them in public in circumstances where there was a reasonable likelihood of detection."
29. Unsurprisingly this Court (Hoeben CJ at CL, Adams and Hall JJ agreeing) held that the tendency evidence did not satisfy the requirements of s 97(1)(b). His Honour described one of the "difficulties" for the Crown as being the "high level of generality of the tendency relied upon" (at [40]): A tendency to have sexual urges was so general as to be meaningless. The additional qualification to that tendency, i.e. to have sexual urges and to act on them in public circumstances where there was a reasonable likelihood of detection, refined the concept but not greatly. Its generality was such as to attract the criticism made by Giles JA in Townsend v Townsend [2001] NSWCA 136 at [78] where his Honour said: "78 Assuming that the evidence was tendency evidence, it was admissible unless his Honour considered that it would not have significant probative value. His Honour considered that it did have significant probative value, although with a qualification which tended to cast doubt on that status. I am inclined to the view, still assuming that it was tendency evidence, that the evidence should have been rejected as not having significant probative value. So far as appeared, the circumstances of the respondent's conduct towards Mrs Townsend were very different from the circumstances in which the incident between the appellant and the respondent took place; certainly the evidence was of such generality that little meaningful tendency was established."
30. Another difficulty for the Crown was described as being the "marked dissimilarity between the conduct relied upon to establish the tendency and the evidence under consideration by the jury (at [41]). That dissimilarity no doubt explained why the tendency sought to be proved was expressed at a level of generality. For that reason in the circumstances of that case the evidence used for the purpose of proving that generally stated tendency, did not have significant probative value.

Section 101(2)

1. Section 101(2) requires that the probative value of the evidence used to prove the tendency be balanced against its "prejudicial effect", and provides that in criminal proceedings the evidence is not admissible for that purpose unless the former "substantially outweighs" the latter.
2. The enquiry as to probative value directs attention to the rational use of evidence in assessing the probability of a fact in issue. By contrast, the prejudicial effect of evidence is concerned with the risk that the evidence will be misused by the jury in an unfair manner, such as by provoking some irrational, emotional or illogical response. Section 101(2) requires that the probative value be weighed against any prejudicial effect that the evidence "may" have.
3. Hoeben CJ at CL gave examples of such unfair prejudice in Sokolowskyj at [48], [50]: In the present case, one of the dangers of unfair prejudice was that the jury would use the evidence in the way they were directed not to use it - to show that the appellant was a sexual deviant who, as a result, was the sort of person who was likely to have committed the offence alleged against him. A second danger was that the jury would be so emotionally affected by the evidence that they would disregard the appellant's account in his police interview and disregard the directions to assess the evidence in an unemotional manner. A third danger was that the jury might be disinclined to give the appellant the benefit of any reasonable doubt. … In R v GAC [2007] NSWCCA 315; 178 A Crim R 408 Giles JA said at [83] that the primary danger was that, notwithstanding any directions given by the trial judge, "the jury might reason no more rationally than that, if the respondent molested [two other persons], he did the same to the complainant, and that emotion not rationality would govern".
4. It is accepted that in assessing possible prejudicial effect "it is legitimate and appropriate for the judge to take into account the ameliorating effect of any directions that may be available" to reduce that effect: DAO at [172] (Simpson J). However that is not the end of the matter. As Hoeben CJ at CL said in Sokolowskyj at [56], having set out the observations of the plurality (French CJ, Hayne, Kiefel, Bell JJ) in Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 at [113]: A further consideration is this. An assumption that a judicial direction to the jury designed to minimise the risk of unfair prejudice will be completely effective would effectively prevent s101(2) operating as a safeguard against the potential risk of miscarriages of justice arising from the admission of tendency evidence. In the present case there was a real risk that, notwithstanding directions to the jury, the jury would see the appellant as a sexual deviant who had no credibility in denying the allegation against him, was not deserving of the benefit of any reasonable doubt and was the sort of person who was likely to have committed the offence alleged against him.
5. I now turn to the application of ss 97(1) and 101(2) in relation to the tendency evidence adduced and relied on in the trial. It is convenient first to summarise the complainant's evidence and the tendency evidence. As the trial judge made clear in his summing up to the jury, the complainant NC was "the exclusive witness" as to the occurrence of the charged conduct. That conduct was alleged to have occurred between 1 November 1995 and 31 March 1996.

The complainant's evidence

1. NC performed the role of altar boy for a few months at the Bathurst Cathedral when he was about 11 years old. The appellant was responsible for supervising the altar servers. NC first met the appellant in late 1995. On the day of the first of the two incidents (which are together alleged to have occurred within a period of five months) NC went to the toilet in the main church. The appellant followed the complainant into toilet and urinated into the toilet bowl at the same time as the complainant. After they had both finished the appellant asked the complainant something like "have you tried this before" or "let me show you something" and started masturbating in front of the complainant (count 1). The appellant also encouraged the complainant to get his penis out of his pants and to masturbate himself. The appellant showed the complainant how to do this, touching the complainant's penis for brief moments (count 2). The complainant said that the appellant ejaculated but that he did not.
2. The second incident occurred a few weeks after the first. The complainant said he was again assisting as an altar boy. The complainant went to the toilet and the appellant again followed him. The appellant started masturbating in the toilet cubicle (count 3). The appellant then masturbated the complainant and himself (count 4). The complainant said that the appellant then said "I'll show you something even better". The appellant then performed oral sex on the complainant for a couple of minutes (count 5). The appellant said it was only fair that the complainant do the same to him. The complainant performed oral sex on the appellant (count 6). The complainant gagged and was crying. The appellant then stopped and comforted the complainant.
3. In cross-examination a significant attack was made on NC's credibility. In 2010 he made an oral complaint to the Catholic Church in relation to the incidents described above. He was asked to provide a written statement and did so. That statement included an allegation that the appellant had anal intercourse with him during the second incident. NC agreed in cross-examination that he had added this detail and that it was a "lie" told at a time when he was "about to kill myself" and "desperate for money".
4. The Professional Standards Office of the Catholic Church subsequently offered the complainant $10,000 by way of compensation. He refused that offer and asked instead for an amount of $30,000. That amount was paid into one of his bank accounts. NC agreed that at the time he contacted the Church he was desperate financially. In support of his claim to $30,000, NC asserted in an email to the Church that he had an outstanding tax bill of just over $18,000, and smaller debts amounting to $3,500. In cross-examination he agreed that at the time of this email he had an outstanding tax assessment for approximately $12,500 and that he had "deliberately lied in the email about the amount of tax he owed".

The tendency evidence

1. TR gave evidence that he first met the appellant in 1985 as a boarding student at St Stanislaus' College. He went to the appellant's room at the College on his own on three or four occasions, particularly when he was feeling homesick. On one occasion he sat on the appellant's bed and the appellant "put his arm around him" and gave him a "cuddle". The appellant then started massaging TR's groin. TR said that he "basically tried to rub me and tug me up sort of thing, tried to get a stiffy". TR told the appellant not to touch him and called him a "dirty fucking pervert". TR squirmed away and then left. TR tried to tell one of the Brothers what had happened, but was instead caned for having sworn at the appellant.
2. TR gave evidence of a further incident that occurred when he was in year 7 in the shower and locker room area next to the school's swimming pool. He had used the pool and went to take a shower. The appellant came into the shower area and came up behind TR, who was naked. TR said that the appellant "grabbed both my arse cheeks and pulled them open". TR again called the appellant a pervert and told him not to touch him again.
3. SL also met the appellant whilst at the school as a boarder in 1985. He went to the appellant's room on a couple of occasions when he was feeling homesick. SL laid down on the appellant's bed and the appellant massaged SL's shoulder and back. The appellant then massaged SL's groin area and brushed past the complainant's penis and testicles. The appellant also touched them inside SL's underpants for a couple of seconds. SL got out of the bed and tried to leave the room as quickly as possible.
4. In October 1985 SL was again feeling homesick and the appellant asked him if he would like to go to the appellant's room to lie down. He went to the appellant's room. No one else was present. The appellant put on some music and massaged SL, who was wearing pyjamas with no underpants. SL fell asleep. When he woke up he saw the appellant's head in his groin area. SL felt a sensation of wetness around his penis and could feel the sensation of a man's growth around his genitals. SL "freaked out", jumped up and left the room. He was confused and embarrassed.

Was there a substantial miscarriage of justice by reason of the admission of the tendency evidence as ultimately relied on (ground 2)?

1. The effect of Evidence Act, ss 95 and 97 is that evidence is not admissible to prove and "must not be used to prove" that a person has a tendency to act or think in a particular way unless, used for that purpose, the evidence satisfies s 97(1)(b). That makes it necessary to identify the tendency ultimately sought to be proved and relied on.
2. Here the Crown case in relation to the use of the tendency evidence departed from that described in its tendency notice in at least two respects. That notice described with some specificity a tendency "to act in a particular way" that the evidence was adduced to prove. See [4] above. At the same time, the notice did not indicate that the evidence was to be relied on to prove a tendency "to have a particular state of mind". The notice identified the facts in issue to which proof of the tendency was said to be relevant as "including the complainant NC's allegations of sexual conduct by the accused". During the course of the trial the evidence was not said to be relevant to any other facts in issue.
3. Whilst the Crown's use of the evidence in the trial differed from that described in its tendency notice, that use did not differ in substance from the use outlined by the Crown when its admissibility was argued. However, in the absence of any reasons of the trial judge, it is not possible to know whether the evidence was admitted on the basis that it was tendered to prove the tendency particularised, or the more generally stated tendency referred to in the Crown's argument.
4. By the conclusion of the trial, the evidence was relied upon to prove a tendency stated at a high level of generality; namely that the appellant had a sexual interest in young teenage boys under his supervision, which he acted on when alone with TR and SL. That could be described both as a tendency to act on that sexual interest in relation to boys under his supervision as well as a tendency to have a particular state of mind, namely that sexual interest.
5. In relation to each of the six counts, there was only one issue of fact for the jury and that was whether the appellant had committed the acts charged. It was not disputed that NC was under the age of 16 years and that he had been under the authority of the appellant at the relevant time. Accordingly, it was open to the jury, if they accepted NC's evidence, to be satisfied beyond reasonable doubt of the appellant's guilt in relation to each count.
6. The jury was invited to reason that on the charged occasions the appellant acted in conformity with the tendency or tendencies described above. The trial judge directed the jury that if they were satisfied that the appellant had a sexual interest in young males under his supervision, they could "use that fact in determining whether Mr McPhillamy also had such a sexual interest in NC, and committed the offence as charged". This suggested reasoning focussed on the fact of the appellant's sexual interest in young teenage boys as justifying first, an inference that the appellant had a sexual interest in NC, and then the further inference that he had acted to gratify that interest in the circumstances and manner alleged.
7. In the Crown's closing address it was also suggested that the tendency evidence supported NC's credibility. The jury was invited to reason that that evidence made it more likely the appellant had acted as described by NC. So understood, in this respect the Crown's argument did not identify a way in which the evidence was said to have probative value which was different from its primary use of the evidence. That is because, as McHugh J explained in Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 at [51], in a case where there is a credibility issue concerning the credit of the only witness giving direct evidence of the principal facts in issue (as here), the distinction between circumstantial evidence (such as tendency evidence) being relevant to the fact in issue and also to credit is "indistinct".
8. As the appellant did not challenge the veracity of the evidence of TR and SL, it should be accepted that their evidence established that in 1985 the appellant had a sexual interest in boys in their early teenage years and acted on that interest whilst a boarding house master at St Stanislaus' College and in the circumstances and manner described by those two witnesses.
9. The jury was invited to reason that because the appellant had an interest in young teenage boys under his supervision which he acted on in 1985, it should be inferred that in late 1995 and early 1996 he acted in conformity with that tendency by engaging in the charged conduct. One necessary step in that reasoning is that the sexual interest and tendency which existed in 1985 continued to exist ten years later in 1995.
10. The appellant relies on three matters as having the consequence that this reasoning is unconvincing in its separate support for the conclusion that in late 1995 the appellant committed the acts alleged. Those matters are the lapse of ten years between the tendency conduct and the charged conduct; the differences between the circumstances in which the tendency and charged conduct occurred, and in the nature of that conduct; and the high level of generality of the tendency left to the jury. It is submitted that whatever probative value the evidence had it was not "significant".
11. As to the first of these matters, there was no evidence independent of the complainant's evidence which suggested that the tendency had manifested itself in any form over the intervening decade. In the absence of such evidence, to engage the tendency reasoning urged by the Crown the jury had to proceed on the basis that the earlier conduct was not the result of a particular set of circumstances which existed in 1985; and that the tendency persisted, unaffected by the appellant's life experiences during the intervening ten years.
12. In response the Crown says that "a sexual interest in young boys is not a tendency that one would necessarily expect to dissipate over time. It also [is] to be borne in mind that the [appellant] was an adult at the time of all offending". In its written submissions the Crown also made reference in this context to Hughes, in which the charged offences, involved five female victims under 16 years and conduct which had occurred between 1984 and 1990. That conduct, however, demonstrated that the tendency persisted during that six year period. There was no such evidence in this case.
13. When evaluating the probative value of tendency evidence the significance of the passage of time between the tendency conduct and the charged conduct is obviously fact dependent. For example in R v Watkins [2005] NSWCCA 164; (2005) 153 A Crim R 434 evidence of crimes of dishonesty committed by the accused in 1983 and 1984 was held to have been wrongly admitted in relation to the fraudulent misappropriation of cheques alleged to have occurred between 1999 and 2002. Barr J (with whom Grove and Howie JJ agreed) considered the appellant's good character in the intervening years "substantially weakened" the contention that he had continued to have any tendency to act fraudulently as late as 1999. In R v Dent [2016] NSWSC 99 the accused was charged with murder and robbery, arising from an incident that occurred in March 2014. The prosecution sought to lead evidence that in October 1977 the accused had robbed and murdered two victims in circumstances having some similarity with the occasion charged. The trial judge (RA Hulme J) rejected the tendency evidence (at [32]) because the fact "the accused was not shown to have behaved or thought in a similar way for such a lengthy period of time dilutes the probative value of the tendency evidence to such a degree that it cannot be said that there is significant probative value".
14. The Crown's submission that a sexual interest in young boys is not a tendency that one would 'necessarily' expect to dissipate over time raises a question as to whether that is a correct statement of the position, or one that should be qualified to take account of the circumstances in which the earlier conduct occurred and of events in the subsequent 10 year period. It also raises a question as to whether these are matters within the knowledge or experience of ordinary persons so as to be able to be left to the jury without any need for expert or other evidence. The argument in this Court proceeded on the basis that they were.
15. Two relatively recent decisions have considered the effect of the lapse of a long period of time between conduct relied on to establish tendency and charged offending involving sexual misconduct. Neither, however, addresses circumstances similar to those under consideration here. In BC v R [2015] NSWCCA 327 the applicant accused was charged with 20 counts of sexual assault upon four complainants committed between 1994, when the accused was aged 11, and 2011, when he was 28 years old. The complainants were sons or daughters of friends of the accused's father and, in each in case, younger than the accused at the time of the relevant offending. It was submitted on behalf of the accused that the counts charging him with conduct as an 11 to 13 year old should be tried separately, because s 97(1)(b) was not satisfied with respect to the evidence in support of those counts being admitted as tendency evidence in relation to the remaining counts. This Court (Beech-Jones J, Simpson JA agreeing) rejected that argument because the evidence was capable of demonstrating that the applicant had continued to engage in the charged conduct over the whole of the period in question, thus justifying an inference as to the persistence of the tendency: at [86]-[87]. That is not the present case.
16. The circumstances of the second case are even more unusual. In RHB v The Queen (2011) VSCA 295 the applicant was charged in late 2010 with indecent sexual assault upon his granddaughter between November 2003 and 2005 at a time when she was between 10 and 11 years of age. Subsequently (in June 2011) the applicant pleaded guilty to three further charges of indecent assault committed on his two daughters, in the case of one in 1978-1979 and 1984-1986, and in the case of the other in 1984-1985. The trial judge hearing the charge in relation to the granddaughter admitted as tendency evidence the evidence of the earlier conduct to which the applicant had pleaded guilty. His application for leave to appeal from that interlocutory decision was dismissed.
17. Nettle JA (Harper JA agreeing) considered (at [18]) that there was no room for doubt as to the significant probative value of the tendency evidence, notwithstanding that the last of the earlier events occurred twenty years before the charged conduct: … As the judge held, it is a remarkable thing for a man to commit sexual acts against his female lineal descendants. It is still more remarkable when, in each case, the nature of the acts is similar if not identical, even if they are commonplace sexual acts. It is even more remarkable that in each case the acts were committed in the home while the victim was in the applicant's care, while other adults were close by and the risk of detection was significant. It follows that, if accepted, the evidence of the applicant's prior offending against his daughters would demonstrate that he had a tendency to be sexually attracted to his young female descendants and to act upon that attraction in similar ways at different times, when the victims were in his home under his care and thus vulnerable to his advances.
18. With reference to that lapse of time, Nettle JA concluded (at [23]) "despite the gap in time … the applicant's offences against his daughters would have significant probative value in the determination of whether the applicant committed the charged offence against his granddaughter". The circumstances of RHB are quite unlike those in the present appeal. The specific and remarkable nature of the tendency proved by the earlier conduct in that case, and the high degree of similarity between that conduct and the charged conduct, both marked the later conduct as conduct of the applicant and confirmed the persistence of that very specific tendency.
19. As to the second of the matters raised by the appellant, the tendency conduct occurred in circumstances where TR and SL were at boarding school, away from their families and under the appellant's direct supervision. They were homesick and had emotional needs. The appellant befriended and comforted them in the privacy of his room. His doing so progressed to the sexual misconduct of which they gave evidence. With one exception in relation to TR (the incident in the shower and locker room), that misconduct was committed under the pretext of comforting the person concerned, involved at least initially inappropriate touching, and was not overt and aggressive. The charged conduct on the other hand, occurred over a short period and whilst NC was living at home with his family. There was no evidence of any ongoing relationship which preceded or led to the charged conduct. That conduct was blatant and of a different character to the conduct described by TR and SL. The appellant followed NC to the public toilet in the main church. On the first occasion he started masturbating in front of the complainant and encouraged the complainant to do the same. On the second, there was mutual masturbation and then fellatio.
20. As to the third of the matters relied on, the appellant emphasises that the tendency which the Crown ultimately sought to prove was a sexual attraction to boys in their early teenage years which the appellant was prepared to act on, at least in relation to boys under his supervision.
21. In response to the second and third of these matters, the Crown submits that the differences between the tendency conduct and the charged conduct were not determinative and that, in any event, there was a pattern of conduct and similarity in that conduct. It all concerned young boys in their early teenage years; there was evidence in each case of sexual touching of the boys' genitals; and the appellant was in a position of responsibility in relation to each of the boys concerned. Finally, the Crown submits that the differences in the circumstances and locations of the relevant conduct are wholly consistent with the continuing existence of the tendencies relied on and explain how the appellant was able to act to satisfy his continuing sexual interest in young boys in the different circumstances in which he had close contact with them at the Bathurst Cathedral.
22. To the extent that the Crown points to similarities between the tendency evidence and the evidence of the charged conduct that were not formulated as part of the tendency which it relied on in the trial, it does not seem to me that they may be taken into account in evaluating whether that evidence had "significant probative value". That is because the question of admissibility under s 97(1) is to be assessed by reference to the probative value of the evidence when adduced for the purpose of proving the particular tendency relied upon.
23. However because these similarities are not determinative of the question of significant probative value in this case, it is sufficient to consider that question by reference to a tendency formulated to take account of them. That probative value depends upon the availability and strength of the inference that on the charged occasions the appellant, acting in conformity with the tendency sought to be established by that evidence, satisfied his sexual interest in young teenage boys under his supervision.
24. There are difficulties with the reasoning leading to that conclusion. Whilst the earlier conduct manifested a sexual interest in young boys it did not show the appellant was prepared to act on that interest in circumstances similar to those in which the charged offences occurred, or in all circumstances where the opportunity might arise. On the contrary that conduct showed that he was disposed to act on that interest in particular circumstances where the boys concerned were separated from their families and subject to the appellant's supervision as a boarding master. Furthermore, that conduct occurred 10 years earlier than the charged conduct. Whilst the charged conduct may have been consistent with the existence of a continuing sexual interest and a preparedness to act on it in the charged circumstances, that preparedness was not manifest in the earlier conduct. Nor was there any evidentiary justification arising from the earlier conduct to support an inference that over time the appellant had become prepared to act on the sexual interest in the way manifested in the charged circumstances.
25. These difficulties arise because of the absence of sufficient similarity between the conduct relied on as exemplifying the appellant's acting on a sexual attraction to young teenage boys and the charged conduct. That in my view prevented the earlier evidence from having significant probative value when used to prove the tendency relied on.
26. I have had the benefit of reading the judgment of the majority. Their conclusion is that evidence of a tendency to be sexually interested in male children in their early teenage years, and to have acted upon that interest with such children, has significant probative value in a case such as the present. My difficulty remains that without more neither the sexual interest nor the fact of the appellant's having acted on it previously, support as a major premise that the appellant was prepared to act on that interest when (and implicitly whenever) "the opportunity arose". The reference in this context to "opportunity" and to the earlier conduct as involving the taking advantage of a "position of responsibility" does not advance that mode of reasoning, without consideration of the context and circumstances of the earlier conduct.
27. It follows that in my opinion the evidence used to prove the tendency relied on was not admissible. The Crown accepts that if this Court concludes that evidence was not properly admitted, it cannot be satisfied, in terms of the proviso, that "no substantial miscarriage of justice has actually occurred". Accordingly ground 2 is made out, the appeal should be allowed and the appellant's conviction should be set aside. In that event the appellant accepts that there should be a new trial.
28. It remains to consider briefly the position under s 101(2). In circumstances where such evidence does not have significant probative value it cannot be concluded that its probative value substantially outweighs any prejudicial effect it may have.
29. In relation to s 101(2) the appellant submitted that there were four additional respects in which the evidence carried a risk of prejudice that went beyond the kind of prejudice referred to in [82] above. Those respects were that the evidence showed that the appellant had preyed on boarders who were vulnerable, alone and homesick; that he had attempted fellatio on SL after he had fallen asleep; that he would be regarded as responsible for the caning which TR received for swearing at him; and that he would be associated with the institutional sexual abuse which was said to have occurred at the school attended by TR and SL. Each of these matters was submitted to be likely to provoke an emotional or other unjustifiable response from the jury when considering the question of his guilt. Had it been necessary to address this argument I would not have considered these matters as representing a significant risk of prejudice arising from the admission of the evidence which went beyond the prejudice that it is accepted was likely to arise in any event.

Conclusion

1. The orders that I propose are: 1. Extend to 7 October 2016 the time for the appellant to give notice of intention to appeal or to apply for leave to appeal on grounds 1, 2 and 3. 2. Grant leave to the appellant to appeal against the convictions entered on 13 February 2015. 3. Allow the appeal. 4. The appellant's convictions of 13 May 2015 be quashed. 5. There be a new trial of those charges.
2. HARRISON and RA HULME JJ: We have had the benefit of reading the judgment of Meagher JA in draft. We gratefully adopt his Honour's thorough recitation of the relevant factual material and the parties' competing contentions. It is unnecessary in the circumstances to repeat those matters except to the extent necessary to explain our views.
3. We are unable to agree with his Honour's conclusion that Ground 2 of the appeal (admission of the evidence of TR and SL resulted in a miscarriage of justice) should be upheld. Our brief reasons for coming to that view are as follows.
4. It was an important feature of the Crown case that the evidence of NC concerning the appellant's conduct on the charged occasions was strongly supported by the fact (if the jury accepted it to be so) that the appellant had a tendency to be sexually interested in male children in their early teenage years and to have acted upon that interest with such children.
5. Meagher JA has expressed the opinion that there are difficulties with this for a number of reasons. For example, his Honour is of the view that whilst the earlier conduct manifested a sexual interest in young boys, it did not show that the appellant was prepared to act on that interest in circumstances similar to those in which the charged offences occurred or in all circumstances where the opportunity arose. His Honour emphasised, by way of apparent contrast, that the appellant's conduct showed that he was disposed to act on that interest in particular circumstances where the boys concerned were separated from their families and were subject to his supervision as a boarding master. His Honour also emphasised the apparent antiquity of the conduct, which had occurred some ten years earlier than the charged conduct. It was his Honour's view, for these reasons, that there was no sufficient similarity between the conduct relied upon by the Crown to illustrate the appellant's tendency to act upon a sexual attraction to young teenage boys and the charged conduct. His Honour's view is that the high level of generality of the alleged conduct operated so as to disqualify its use as evidence capable of supporting the existence of the tendency alleged. It follows in his Honour's view that the presence of that high level of generality or the absence of any sufficient similarity prevented the earlier evidence from having significant probative value when used by the Crown to prove the tendency for which it contended.
6. We accept immediately that there are some differences between the charged conduct and the evidence relied upon by the Crown to establish the relevant tendency. For example, it is apparent that they occurred in a different environment. However, in all cases the appellant's conduct was concerned with or involved him taking advantage of his position of responsibility for young teenage boys in his care and with his exploiting the opportunity that was presented when alone with them to fondle their genitals or to engage in oral sex. Any differences between the precise circumstances in which the conduct occurred or the different nature of the conduct concerned do not in our opinion detract from what seems to us to be the overriding similarity between the charged conduct and the earlier incidents.
7. Nor to the same effect do we consider there to be a disqualifying level of generality in the conduct concerned. Meagher JA has drawn attention to the specific circumstances in which the charged conduct has occurred so as to distinguish it from the earlier conduct. However, it is the tendency that is sought to be established by the earlier conduct that is in issue and whether or not and how, if it is established, that conduct might bear upon an assessment of whether the charged conduct occurred. What is in issue is the likelihood that the charged conduct occurred in light of the fact (assuming that the jury accepted it as a fact) that the appellant had the tendency alleged. In our opinion the appellant's earlier conduct could be regarded by the jury as strongly supporting the proposition advanced by the Crown.
8. Moreover, we also consider that the charged acts and the earlier acts are not so far removed in time from each other as fatally to imperil the strength of the inference promoted by the Crown. The Crown case was based upon the proposition that the appellant had a sexual interest in young teenage boys and that he acted upon that interest when the opportunity arose. We agree with the Crown submission that it is capable of being regarded by the jury as an enduring tendency, rather than one that might arise and then wane or dissipate so as to have no relevant bearing upon the proof of the later charged conduct. We put to one side the question of whether or not this issue is, if it ever could be, properly the subject of expert or other evidence. Having regard to the jury's task of bringing to account their collective wisdom and common understanding, as well as their common sense, it does not seem to us to be particularly controversial for a jury to be asked to infer that a sexual interest in young teenage boys would be unlikely to become attenuated in the space of ten years.
9. The appellant also submitted that the evidence should not have been admitted on the basis that its probative value did not substantially outweigh its prejudicial effect: Evidence Act, s 101(2). This submission cannot be accepted for the reasons provided by Meagher JA (above at [121]).
10. As we are of the opinion that Ground 2 must fail, it follows that there was no miscarriage of justice occasioned by the decision of the trial judge to admit the evidence (Ground 1).
11. The appellant also contended that the appeal should be allowed even if only on account of the failure of the trial judge to give reasons for his decision to admit the evidence (Ground 3). We accept at once that there was, to say the least, a procedural irregularity in this failure.
12. The Crown accepted that reasons should have been given, as the trial judge said he would, but it challenged the contention that the failure to do so constituted a miscarriage of justice.
13. We have given consideration to the very detailed argument advanced by counsel for the appellant on this issue. In the end, however, we are of the view that there was no miscarriage of justice. That conclusion is based principally upon the fact that this is a case in which, despite the absence of reasons, it is possible for this Court to determine whether his Honour erred in ruling that the evidence was admissible (see Evans v R (2006) 164 A Crim R 489; [2006] NSWCCA 277 at [272], with this aspect not the subject of any criticism in Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59), and we are of the view that he did not err. We have also had regard to the fact that there was no complaint during the course of the trial about the absence of reasons and that it was not contended that there was any practical (as opposed to theoretical) impediment to the way in which the case was conducted by either party.
14. We conclude that none of the grounds of appeal establishes that there was any miscarriage of justice. We propose the following orders: 1. Extend time as may be required. 2. Grant leave to appeal against conviction. 3. Dismiss the appeal.

Amendments 14 June 2017 - Typographical correction to Coversheet 16 June 2017 - Catchwords amended on Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 June 2017