R v Asiminaris

Background

1. According to the Crown Case Statement, [1] the Complainant, B, was admitted to Reiby Juvenile Justice Centre on 24 October 1996. At that stage, he was 15 years of age. Following his admission, he stayed in the dorm section for about a month before being moved to the Whitten cell block, which was described as a single cell detention block. Whilst serving at Whitten, the Complainant came to know the Accused. The Accused was then a Youth Worker who supervised detainees in the Whitten cell block having been employed in that position from 3 June 1996 to 12 February 1998. [2]
2. Details of the Accused's employment prior to 10 August 2001 are contained in a statutory declaration completed by her. [3] It shows that the Accused did not reengage with the Department prior to 10 August 2001, although there is evidence of other youth related employment.
3. The Crown sought to rely on a statement by Ms Leilani Tonumaipea as to the custody arrangement at the Whitten cell block up until the time that it was decommissioned in 2010-11. The evidence of Ms Tonumaipea however, is that she had been working at the Reiby Juvenile Justice Centre since 1998, which post-dated dates of the alleged offences against B. [4]
4. According to the Complainant, at some point the Accused started writing letters to him of a romantic nature and giving them to him. These would be addressed as "Juliet to Romeo". He stated that the Accused would slide them under his door or hand them to him in person when she saw him by himself. [5] The Complainant wrote letters back to the Accused, and asserts that what he wrote to her were letters of a romantic and sexual nature. The reference by the Complainant to him being supplied pens and paper implies that this occurred whilst he was in custody. Furthermore, during that period the Accused is said to have supplied him with her personal phone number. [6] It is also asserted that the Accused also provided the Complainant with "smokes" whilst he was at Whitten. He stated that sometimes she would leave smokes on the top of her passenger side front tyre for him to collect by prior arrangement. [7]
5. On 25 December 1996 an order was made by the manager at Reiby which allowed the Complainant to go on day leave for the first time since he was detained at Reiby. According to the Crown Case Statement, at some point after that date the Complainant was moved to the Whitten cell block to the external unit, which was outside the front entrance to Reiby to allow him to participate in a work release program. The Accused supervised the Complainant on a couple of occasions while he was at that unit. [8]

Counts 1 & 2

1. On 3 March 1997, an order was made allowing the Complainant to commence a work release program with Reno Smash Repairs at Campbelltown. According to the Crown Case Statement, the Accused drove her vehicle to the Leumeah train station car park to meet the Complainant. The Complainant then met her during his lunch break. The Accused and the Complainant got into the back seat of the car and had penile/vaginal sexual intercourse until the Complainant ejaculated inside the Accused's vagina. The Complainant did not wear a condom. [9]
2. This conduct is said to constitute Counts 1 and 2 (in the alternative).
3. The Complainant cannot recall how many times he had sexual intercourse with the Accused at Leumeah; however, he states that it happened on more than one occasion. [10]

Count 3 & 4

1. On 1 April 1997 the Complainant did not return to Reiby after work release. The next day, he contacted the centre and revised him of his location. As a result of this, he was sent back to the Whitten cell block inside Reiby. In these circumstances, he again came to be supervised by the Complainant on a regular basis. [11]
2. After his return to Whitten, the Complainant and the Accused started to have sexual intercourse inside the Whitten cell block. On one evening while the Complainant was in a self-contained flat attached to Whitten, the Accused and the Complainant had penile/vaginal sexual intercourse until the Complainant ejaculated inside her vagina. He did not wear a condom. [12]
3. This conduct is said to constitute Counts 3 and 4 (in the alternative).
4. While the Complainant is not sure how many times he has sex with the Accused in Whitten cell block, he recalls they would have sex whenever the opportunity arose. [13]

Count 5

1. On 13 May 1997 the Complainant was granted conditional discharge from Reiby. On the day he was released the Complainant states that he contacted the Accused's brother, and told him that he was coming around to his house in Padstow to surprise the Accused. The Accused was staying with her brother at that time. The complainant went back to his mother's house briefly and then caught public transport to the address in Padstow. [14]
2. Later that night the Complainant and the Accused had penile/vaginal sexual intercourse until the Complainant ejaculated inside her vagina at the Accused's brother's house. The sexual intercourse continued until the Complainant ejaculated inside the Accused. [15] The Complainant did not wear a condom at the time.
3. Following his release, the Complainant went back to live with his mother at Ingleburn. During this time the Complainant would stay with the Accused on and off with the Accused' at the latter's brother's house in Padstow. The Complainant and the Accused continued to have sexual intercourse during this time. About a month after the Complainant's release, the Accused rented a place at Ingleburn for her and the Complainant to live in. The Complainant was said to have moved in with the Accused around his 16th birthday. [16]
4. Sometime in early 1998, when the Complainant was still 16, the Accused fell pregnant with a child, which the Complainant believes is his. Following the pregnancy, the Accused said she wanted to go to New Zealand to get married because she was having a child out of wedlock and this would shame to her family. The Complainant did not want to go and the relationship ended. [17]
5. In October 1998 the Accused gave birth to a baby boy, who the Complainant believes he is the father of. [18]
6. The Crown Case Statement also reveals that the Complainant's mother met the Accused when she would visit her house whilst the complainant was on weekend leave. She recalled that the Complainant moved in with the Accused at a place near her house. The Complainant's mother was aware that the Accused was pregnant and that the Accused had spoken to the Complainant about getting married. She further asserts that about 3 months after the birth of the child, the Accused organised a meeting with her in a park in Padstow, where she met with the Complainant's other family members and acknowledged that the Complainant's mother was the baby's grandmother.
7. Thereafter, the Complainant's mother saw the child on one other occasion three months later. Contact was thereafter ceased following a disagreement over the Complainant's mother taking photographs of the baby. [19]

Tendency Evidence - S

1. S was born in 1988.
2. In July 2002, the Accused started work as a psychologist in the Cobham Juvenile Justice Centre. She continued to be employed up until her dismissal on 19 January 2007.
3. Between 11 April 2005 and 23 May 2005, S was a detainee at the Centre. On 23 May 2005, S was transferred to Kariong Juvenile Justice Centre. He remained there until he was transferred back to Cobham on 31 May 2006. He turned 18 years of age on 21 March 2006 during his time in Kariong. Between 21 May 2006 and 6 September 2006, he was in custody in Cobham. On 6 September 2006 he was transferred to Baxter Juvenile Justice Centre following allegations of an inappropriate relationship between him and the Accused. [20]

Sexual relationship between the Accused and S

1. According to a statement from S, he met the Accused after he returned to Cobham on 21 May 2006. After his return, he was allocated a cell to himself. In that cell, he had access to a bed, toilet, a shower, and a table. He states that the shower cannot be seen from the entry of the cell. [21]
2. At some point, the Accused became S' psychologist and he would see her nearly every day. The relationship between the pair was said to develop into a sexual relationship. He states that the Accused got him a mobile phone and gave him two batteries. [22] He states that he would use the phone to call the Accused to have phone sex, and further requested contraband such as tobacco and music.
3. S states that the Accused would often visit him in his cell and she would sit in his cell doorway and perform fellatio on him. He would watch out for guards while this was occurring, and would often continue until he ejaculated in her mouth. [23] He states that there were times when he was having dinner at Cobham that he would pretend to be sick so that he could go back to his cell and then go to the shower with the Accused where they would grope each other and the Accused would perform fellatio on him. [24]
4. The Crown asserts that at some point, the Accused would write letters of a sexual nature to S and she would often use an alias such as "Sarah" or "Melissa". [25] A copy of a letter said to have been sent by the Accused is contained in VD Ex A, tab 24. The letter was sent on 7 September 2006, the day after S was transferred from Cobham. With the letter was a photograph of the Accused with her son.
5. In early September 2006 an internal investigation began in relation to the inappropriate relationship between the Accused and S following reports being made by other employees and detainees. On 24 September 2006 an investigator found the Accused had breached her code of conduct by forming an inappropriate relationship with S. On 15 January 2007, the Accused was dismissed from her position at Cobham Juvenile Justice Centre. Subsequently, her registration as a psychologist was cancelled on 11 May 2009 for a period of 3 years.
6. On 23 May 2017 the Accused was arrested in relation to the matters currently before the Court.

Notice

1. The tendency evidence sought to be relied upon by the Crown was set out in a notice dated 9 August 2018 and described as follows:- 3. The tendency to act in a particular way, namely: a. to engage in inappropriate relationships with young male detainees either under her care or formerly under her care, in Juvenile Justice Centres, including by: sending "love" letters to young male detainees, signed off with an alias; and providing young male detainees with prohibited items such as cigarettes. b. to engage in sexual activity with young male detainees either under her care or formerly under her care, in Juvenile Justice Centres, including by engaging in sexual activity within Juvenile Justice grounds. 4. The tendency to have a particular state of mind, that is a sexual interest in young male detainees under her care or formerly under care.

Legislation

1. Section 97 of the 1999 Act provides:- (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: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (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. (2) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.
2. Given that such tendency evidence is sought to be admitted in a criminal proceeding, section 101 of the 1995 Act further applies. It provides:- (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (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. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.
3. It is not in issue that reasonable notice in writing has been given to the Accused pursuant to s 97(1)(a) of the 1995 Act. [26]
4. The issue between the parties is as to the admissibility of the evidence in light of s 97(1)(b) and 101 of the 1995 Act.

Legal Principles

1. In IMM v The Queen, [27] French CJ, Kiefel, Bell and Keane JJ stated as follows:- [42] Both s 97(1)(b) and s 137 require an assessment of the probative value of the evidence tendered. As mentioned, the Dictionary definition of the "probative value" of evidence describes evidence which is probative in the same terms as how relevant evidence is described in s 55, namely evidence which "could rationally affect the assessment of the probability of the existence of a fact in issue". [43] The enquiry for the purposes of s 55 is whether the evidence is capable of the effect described at all. The enquiry for the purposes of determining the probative value of evidence is as to the extent of that possible effect. But the point is that in both cases the enquiry is essentially the same; it is as to how the evidence might affect findings of fact. An assessment of the extent of the probative value of the evidence takes that enquiry further, but it remains an enquiry as to the probative nature of the evidence. [44] The assessment of "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue" requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest. The definition must be read in the context of the provision to which it is applied. For the purposes of s 97(1)(b), the enquiry is whether the probative value of the evidence may be regarded as "significant". (footnotes omitted)
2. The plurality in IMM stated that the Court is to proceed on the assumption that the jury will accept the evidence taken at its highest, [28] so that no question as to the credibility or the reliability of the evidence, or the witness giving it, can arise. [29]
3. In Hughes v The Queen, Kiefel CJ, Bell, Keane and Edelman JJ stated: [41] The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged. [30]
4. In R v Bauer (a pseudonym), the High Court stated: [58] In a multiple complainant sexual offences case, where a question arises as to whether evidence that the Accused has committed a sexual offence against one complainant is significantly probative of the Accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an Accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the Accused has committed a sexual offence against the first complainant. And the mere fact that an Accused has committed an offence against one complainant is ordinarily not significantly probative of the Accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true. (footnotes omitted) [31]
5. In McPhillamy v R, Kiefel CJ, Bell, Keane and Nettle JJ stated: [31] Moreover, where, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together. The suggested link in this case is the appellant's tendency to act on his sexual interest in young teenage boys who were under his supervision. The supervision exercised by the appellant as assistant housemaster in 1985 over vulnerable, homesick boys in his care has little in common with the supervision exercised in his role as acolyte over "A", an altar boy, when the two were at the Cathedral for services in 1995-1996. The evidence does not suggest that "A" was vulnerable in the way that "B" and "C" were vulnerable. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with "A"'s account that the appellant followed him into a public toilet and molested him. (footnotes omitted). [32]
6. It is accepted that tendency evidence does not need to show a tendency to commit a particular crime, but rather can seek to establish a pattern of behaviour. [33]

Tendency

1. The Crown submitted that the tendency sought to be established has a high degree of specificity. It particularly drew attention to the following features:- a. Both S and B were detainees in a Juvenile Detention Centre at the time; b. The Accused met both S and B while she was working [at] juvenile detention centres where both S and B were being held; c. The Accused ingratiated herself with both S and B by providing contraband (such as cigarettes); d. The Accused wrote 'love' letters to both S and B while they were detainees at a juvenile justice facility; e. The Accused signed off on 'love' letters to S and B under an alias; f. The Accused commenced a relationship with both S and B while she was supervising them at a juvenile justice facility; g. The Accused professed to have serious romantic feelings for both S and B at the relevant times; h. The Accused engaged in a 'boyfriend/girlfriend' relationship with both S and B; i. The Accused had sexual intercourse with S and B at a time when they were detainees at a juvenile justice facility and she was working there; j. The Accused had sexual intercourse with S and B on occasion within the juvenile justice facility where she worked and where S and B were at the time detainees; k. The ages of the complainant B and the tendency witness S, both were teenage boys at the time (B being 15/16 and S being 18); l. An age difference between the Accused and both S and B at the relevant times; the relationship with B commenced when B was 15 years of age and when the Accused was 23 years of age, the relationship with S commenced when S was 18 years of age and the Accused was 32 years of age. [34]
2. The Crown asserted that the evidence involving S (both directly from S and from other sources such as the letters and phone calls [35] ) clearly demonstrates the tendency asserted by the Crown.
3. Although Counsel for the Accused contended that the evidence of S does not support a relevant tendency, [36] it was subsequently conceded that the relevant tendency that the Crown could rely upon was that the Accused had an interest to engage in sexual activity with male detainees under her care or formerly under care. It argued that the remainder of the alleged tendency, namely engaging in inappropriate relationships with male detainees by sending them letters and providing them with contraband was of little probative value and could only be prejudicial. It is not clear what this latter submission refers to beyond what was stated in the submissions to be an acknowledgement without any specificity that:- "….there is no dispute that the Accused ultimately went too far in her dealings with B by accepting a degree of friendship. The similar evidence of S in that regard and any asserted tendency no longer becomes relevant to the issues at trial" [37]
4. Furthermore, Counsel for the Accused contended that the similarities relied upon by the Crown to allege the tendency would arise in different contexts and therefore it does not have the capacity to give rise to the tendency asserted by the Crown. Counsel for the Accused submitted:- The Accused's conduct with respect to S may have simply been reflective of a woman's natural attraction to someone at work irrespective of where i.e. the circumstance of S being a detainee is insufficient to give rise to a tendency on the part of the Accused to engage in sexual activity with juvenile detainees or have a sexual interest in juvenile detainees specifically - which is ultimately the fact in issue in the proceedings. [38]
5. I would not accept this argument. In my view the evidence of S does clearly have the capacity to establish to the tendency asserted by the Crown. In my view, many of the other submissions advanced by the Accused's counsel are to be more properly assessed in the context of whether the relevant evidence of S, together with other evidence to be adduced, has significant probative value.

Probative Value

1. The Crown relies on the factors identified above to link the features of the relevant evidence of S with the alleged offending with B. The Crown asserts that the probative value of such tendency evidence is significant because it goes specifically to the Complainant's credibility being that the complaint of misconduct on behalf of the Complainant should not be rejected as unworthy of belief because it appeared improbable having regard to ordinary human experience. [39] It submitted that the tendency does not rely on the evidence of a single incident or single encounter between the Accused and S. This, it was said, elevates the probative value of the evidence, especially when the common features of the account of B are compared to that of S.
2. Furthermore, the Crown asserted that the tendency evidence makes "more likely" numerous facts in issue in the trial involving B, including but not limited to: i. Would the Accused have risked her job to engage in an inappropriate relationship with a detainee? ii. Would the Accused have engaged in a relationship with a detainee, a person being held in custody on serious charges? iii. Would the Accused have risked intercourse within the detention centre, with other people nearby? iv. Would the Accused have been interested in a romantic and/or sexual relationship with a younger detainee? v. Did the Accused have an inappropriate relationship with B whilst he was within the detention centre? vi. Did the Accused carry on a sexual relationship with B whilst he was a detainee? vii. Did the acts giving rise to counts 1 to 5 on the indictment take place? [40]
3. It was submitted that without the proposed tendency evidence, the jury would likely reason that a person in the Accused's position would not have acted in the way asserted by B. It was said that this is because a jury may reason that it defies common sense that a woman in the Accused's position would have been attracted to a detainee, charged with serious criminal offences, and that she would risk her career and studies by engaging in a sexual relationship and risk detection in the manner alleged by B. [41]
4. The Crown ultimately asserted that the proposed tendency evidence of S demonstrates a tendency on the part of the Accused to act in a specific way, and it follows that if the Crown established such a tendency, it would have significant probative value in the current trial. It did not further advance the proposed tendency based on condition of mind.
5. Counsel for the Accused submitted that the degree to which tendency evidence could be influential at trial would include a consideration of the following factors:- a. The number of occasions of particular conduct relied upon. b. The time gap between them. c. The degree of particularity of the tendency alleged. d. The degree of similarity between the conduct on the various occasions. e. The degree of similarity of the circumstances in which the conduct took place on the various occasions. f. Whether the tendency is disputed. g. The issue to which the tendency evidence is relevant. [42]
6. Despite the Defence concession that it does not dispute that the Accused "went too far in her dealing with B by accepting a degree of friendship" and the similar evidence of S in this regard and any asserted tendency no longer becomes "relevant"; what this concession amounts to is not apparent. Certainly the Defence did not explain either the content or the extent of the accepted overreach.
7. I accept that the evidence of S considered alongside the other evidence does demonstrate a tendency on the part of the Accused to engage in inappropriate relationships with detainees under her care, specifically by sending love letters and providing prohibited items such as cigarettes to them. It also establishes a tendency to engage in sexual activity with detainees under her care in Juvenile Justice Centres.
8. To the extent the asserted tendency goes beyond a single incident or encounter between the Accused and S, this may otherwise elevate the probative value of that evidence, especially when considered alongside the common features of the Accused's alleged relationship with B.
9. The force of the submission that without the proposed tendency evidence the jury would view B's account as less credible needs to be viewed in light of other evidence indicating that the Accused communicated to other witnesses that she gave birth to a child of which B was the father. [43] Although that was in 1998 produced in the voir dire hearing were juvenile justice records from 28 May to 10 June 1997 confirming that the Complainant reported to officers that he was in a relationship with a person bearing the same name as the Accused who was studying psychology as well as the fact that his then girlfriend (the Accused) was pregnant but subsequently miscarried.. [44] Many of the details in his statement [45] about his relationship with the Accused correspond with what is recorded in the notes.
10. Beyond that, a significant factor in this case is that the conduct of the Accused with S occurs after a 9 year time gap. To an extent that time gap is accounted for in that the relationship with the Complainant ceased in around 1997, and the Accused subsequently ceased her employment on 12 February 1998 before resuming it as a psychologist in July 2002. [46]
11. In RH v R, [47] Ward JA (with whom Harrison and RA Hulme JJ agreed) referred to the principles on the assessment of tendency evidence in R v Beserick, stating: [98] In Beserick, there were two separate trials involving two different complainants against the one appellant. The first trial was for one count of indecent assault but evidence was also led of three to four years of subsequent sexual activity of an increasingly serious nature. The second trial related to two particular incidents but evidence was also led as to at least ten subsequent occasions when sexual activity had occurred. Hunt CJ at CL said (at 523) that: … In general, the weight to be afforded to subsequent sexual activity will be less than that afforded to previous sexual activity, hence the proper exercise of discretion will more readily favour the admission of evidence of the previous rather than the subsequent kind. (emphasis per original) [99] At 525, his Honour said: It could not usually be said that the evidence of subsequent sexual activity is relevant in order to place in its proper context the evidence of the earlier activity upon which the offence charged is based. I am not prepared to say that it could never be relevant for that purpose, but the cases in which it would be relevant for that purpose must surely be unusual ones. (emphasis per original) [100] His Honour also noted at 521-522 that remoteness of other sexual activity from the time of the offence charged went to the weight of the evidence and considered it to be a matter of common sense that weight to be afforded to subsequent sexual activity would be less than that afforded to previous sexual activity. There, his Honour was addressing the admissibility of evidence going to the existence of a "guilty passion" or sexual feeling or desire between the appellant and the complainants. His Honour accepted that regard might be had to subsequent behaviour in order to indicate a state of mind existing at an earlier time (referring, inter alia, to Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 265; Simpson v Robinson (1848) 12 QB 511 at 513 ; 116 ER 959 at 960). [48]
12. In RH v R evidence of subsequent offending was ultimately admitted as tendency evidence. The appellant was charged with a number of child sexual assault offences committed against two children that he and his wife had first fostered and then adopted. Six of the seven counts on the indictment related to conduct over the period from September 1989 to 1993 against one foster daughter (Jane) when she was aged between 9 and 12 years. The seventh count related to conduct in 2003 against another foster daughter (Kay) when she was 12-13 years' old.
13. Prior to trial, Finnane DCJ admitted tendency evidence which demonstrated that the appellant had pleaded guilty in 2010 to five counts of aggravated indecent assault involving a third foster daughter (Lisa). Those offences were committed between December 2005 and November 2006, when Lisa was 11 years' old. The Appellant argued that such evidence was improperly admitted primarily because it was conduct subsequent to the offences on the indictment, which therefore lowered its probative value. That argument was rejected Ward JA stating:- [125] As to the tendency evidence tendered in relation to the count involving Kay, in my opinion it was not an invitation to engage in an impermissible process of reasoning for the jury to be asked to conclude that, if the jury were satisfied that the admitted conduct towards Lisa in 2005-2006 established beyond reasonable doubt the tendency claimed by the Crown (a matter of which the trial judge made clear it was for the jury to be satisfied), then it was likely that the appellant had a similar tendency or state of mind a mere 2-3 years' earlier (when the incident of which Kay complained was said to have occurred) and hence that the jury should have the requisite level of satisfaction that Kay's complaint was made truthfully, taking into account for that purpose the other evidence relevant on that issue. [126] As a matter of common sense, when considering the import of the admitted conduct towards Lisa, there were at least two contradictory possibilities: that the conduct in 2005/2006 was the commencement of an isolated series of events precipitated by a particular attraction to Lisa (or some other factor) or that the conduct in 2005/2006 was the manifestation of a tendency that the appellant had at an earlier time (on which he may or may not have acted at that earlier time). [127] If the jury were satisfied beyond reasonable doubt of the conduct against Jane, then that could also reasonably be taken into account in the jury's assessment of whether Kay's complaint was truthful, since it would provide evidence of a tendency (consistent with that evidenced by the conduct against Lisa) on which the appellant had been prepared to act at that earlier stage. [128] As to the tendency evidence tendered in relation to the counts involving Jane, even accepting that the weight of the much later conduct admitted against Lisa was lessened by the passage of time between those events, the jury also had before it the evidence of conduct against Kay which (if the jury found beyond reasonable doubt was established) would strengthen the conclusion that Jane's complaints of similar conduct were established. [129] The evidence of subsequent admitted conduct against Lisa was not something that could be dismissed as not having significant probative value. It did not suffer from the deficiencies of the evidence of subsequent sexual activity in Dann; nor was it so removed in a factual or temporal context from the earlier acts as in Watkins, particularly given that in the present case (whichever version of Kay's disclosure in 2003 were to be accepted) it could not be said that there had been no asserted acts of inappropriate sexual misconduct in the intervening period between the conduct against Jane and the conduct against Lisa. The same conclusions follow in relation to the tendency evidence of Kay. In relation to the evidence of Jane as tendency evidence in relation to the count involving Kay, the submission based on the temporal gap was, in effect, conceded to have less force, since this was prior sexual activity albeit not within a confined time period. [130] Given that the gaps between the respective assaults were explicable if the tendency was, as the Crown contended, one that related to girls of a particular age range, having regard to the sequential placement of the girls into the appellant's care, this was precisely the kind of evidence that in SK the Court accepted could be relevant and of probative value. [49]
14. On the facts in RH v R the application of Beserick was distinguished in respect of its use in respect of the admitted subsequent conduct involving Lisa, although not so in respect of the use of the evidence of Jane as tendency in relation the count involving Kay.
15. In the instant case, the Crown conceded in oral argument that because the evidence in relation to S post-dates the charged acts on the indictment and there was a gap of nine years, the tendency evidence has lesser weight. It drew attention however to the change in employment during the period and the circumstances in which the relationships with B and S were said to have ceased. It further submitted that because the Accused on the Crown case succeeded in having a relationship with B she engaged in a second relationship with S, which makes the likelihood of the first relationship with B greater. This reasoning is circular, particularly in circumstances where the tendency evidence is in dispute and not admitted by the Accused. [50]
16. Nevertheless, accepting that the evidence demonstrates a tendency as described, the Defence submitted that there are a number of differences between the facts giving rise to the alleged relationships between the Accused and B, and the Accused and S. These were outlined by Counsel for the Accused in written submissions as follows:- a. B was age 15 turning 16, whereas S was age 18 (an adult) - it should be noted both complainants were committing adult like offences at these respective ages. b. When the Accused was counselling B she had just left university and was working as an intern counsellor at age 22; however, when the Accused was counselling S she was a provisionally registered psychologist in her 30s. c. The Accused's relationship with B continued beyond his release from detention whereas the Accused seems to have only enjoyed casual sexual liaisons with S; sending him a letter with her photo (at his request). d. The Accused did not act on her alleged tendency when S was transferred from Cobham to Baxter. e. S was not a 'boy' sharing a common feature with B as contended by the Crown at paragraph 5(k). f. The Accused's interest in S was not in any way of moral concern notwithstanding the circumstances of his detention at a Juvenile Justice Centre; it was unprofessional. g. The Accused's conduct with S did not constitute a serious indictable offence because he was an adult although it may have constituted a breach of provisions governing juvenile detention centres and professional standards h. The Accused has been dealt with for the matters involving S by the HCCC - S denied the tendency evidence now sought to be relied on when initially questioned by HCCC investigators
17. Many of these submitted distinctions overlap.
18. In determining the probative value of the evidence in terms of the facts in issue identified by the Crown I accept that the weight of the asserted tendency is limited by both the gap and the fact that the proposed evidence relates to post offence conduct. In so far it affects the facts in issue, only Count 3 and 4 is alleged to have occurred inside a detention centre and the evidence does not indicate what the staffing arrangements were at the time. The evidence does not address the issue of whether the Accused would have sexual intercourse with a detainee under her authority under the age of 16 years. Beyond the limited concession made, all matters otherwise remain in dispute.
19. Whilst I have earlier acknowledged the tendency contended for, the matters discussed lower the probative value relevant to the facts in issue addressing the likelihood of the elements of the offences charged.

Prejudice

1. Applying the test under s 101(2), the identified prejudicial effect, described by the Defence, is that the jury may misuse the evidence relating to S and improperly infer the guilt of the Accused particularly in circumstances where the alleged acts were not criminal. The Defence has also drawn attention to the previous evidence of S which denied the alleged relationship with the Accused to the Health Care Complaints Commission.
2. The Defence drew attention to the significant body of evidence relating the relationship with S which the jury would have to address in order to determine whether the tendency was established and that this would distract them from the principle tasks of determining whether the Crown had established the guilt of the Accused beyond reasonable doubt for the charged acts.
3. The Crown submitted that such a risk can of course be mitigated by jury direction. It argued that because S was 18 and the allegations involving the Accused were not alleged to be criminal this lowers any prejudicial effect. As to the volume of evidence relevant to the tendency it asserted (in oral submissions in reply) that it could be addressed by applying s 135 and 137 of the 1995 Act.
4. The evidence in relation to S is not only more recent, but much more detailed. There is no evidence of actual correspondence or phone calls between the Complainant and Accused but rather a description by B based on his recollection. In contrast, actual correspondence said to have been sent by the Accused to S will be sought to be adduced to establish tendency [51] supported by a handwriting expert. [52] There will also be evidence from Maria Koulianos to the effect that the Accused sought to use her address for receipt of correspondence addressed to her under an alias because "She was dating a guy and she didn't wasn't any one to know about it because she was going to lose her job over it." [53] There is also proposed to be relied on phone calls said to be between the Accused and S [54] and S and other persons in which the relationship with the Accused is said to be referred to. [55]
5. In my view, the difficulty with all this evidence in relation to S, is that it would give rise to a risk that the members of the jury would be so overwhelmed with knowledge of the asserted subsequent conduct of the Accused in relation to S such that they would if they accepted it be diverted and refuse to contemplate the Accused's defence to the charges in relation to B. On the material before me I am satisfied that the issues in relation to S could well come to dominate the trial.
6. This gives rise to a significant risk that such evidence would distract the jury from a proper consideration of whether the acts alleged against the Accused in relation to B have been proven beyond a reasonable doubt. The difficulty of obviating that risk has to be taken into account in assessing the likely prejudicial effect of the evidence. In my view it cannot be obviated simply by directions. The Crown appeared to accept this this by its reference to the potential application of s 135 and 137. However it did not seek to demonstrate how these provisions would be employed so that the relevant prejudice is addressed.
7. In these circumstances, I am not satisfied that the probative value of the proposed tendency as discussed substantially outweighs the prejudicial effect to the Accused and therefore determine that it is inadmissible pursuant to section 101(2) of the 1995 Act.

Endnotes

1. VD Exhibit G..
2. VD Exhibit G at [6] and VD Exhibit E.
3. VD Exhibit E.
4. VD Exhibit D.
5. VD Exhibit A, Tab 5 at [7].
6. VD Exhibit A, Tab 5 at [8].
7. VD Exhibit A, Tab 5 at [9]-[11].
8. VD Exhibit A, Tab 5 at [11].
9. VD Exhibit A, Tab 5 at [12]-[13].
10. VD Exhibit A, Tab 5 at [14].
11. VD Exhibit A, Tab 5 at [15].
12. VD Exhibit A, Tab 5 at [16].
13. VD Exhibit A, Tab 5 at [17].
14. VD Exhibit A, Tab 5 at [18].
15. VD Exhibit A, Tab 5 at [19].
16. VD Exhibit A, Tab 5 at [20].
17. VD Exhibit A, Tab 5 at [21].
18. VD Exhibit A, Tab 5 at [22].
19. VD Exhibit A, Tab 8.
20. VD Exhibit A, Tab 16 at [4].
21. VD Exhibit A, Tab 16 at [5]-[6].
22. VD Exhibit A, Tab 16 at [9].
23. VD Exhibit A, Tab 16 at [16].
24. VD Exhibit A, Tab 16 at [18].
25. VD Exhibit A, Tab 16.
26. Defence Submissions at [4].
27. (2016) 257 CLR 300; [2016] HCA 14.
28. Ibid at [50].
29. Ibid at [52].
30. (2017) 344 ALR 187; [2017] HCA 20 (emphasis added)
31. (2018) 359 ALR 359; [2018] HCA 40.(emphasis added)
32. (2018) 361 ALR 13; [2018] HCA 52.
33. R v Ford [2009] NSWCCA 306 at [38]; Hughes v The Queen (2017) 344 ALR 187; [2017] HCA 20 at [39]-[41]; Adams v R [2017] NSWCCA 215 at [271]-[272].
34. Crown Submissions at [16]
35. These phone calls were marked as VD Exhibit B.
36. Defence Submissions at [4a].
37. Defence Submissions at [18]
38. Defence Submissions at [9d].
39. As was similarly identified in Hughes v the Queen (2017) 344 ALR 187; [2017] HCA 20 at [60].
40. Crown Submissions at [20].
41. Crown Submissions at [21].
42. Defence submissions at [15].
43. VD Exhibit A, Tab 8, and 16 at [6]
44. VD Exhibit A, Tabs 10-14
45. VD Exhibit A, Tab 5
46. VD Exhibit E indicates that the Accused ceased her employment with Juvenile Justice on 12 February 1998. She then started working as a psychologist at Cobham Juvenile Justice Centre in July 2002.
47. (2014) 241 A Crim R 1; [2014] NSWCCA 71. (emphasis added)
48. (1993) 30 NSWLR 510.
49. (emphasis added).
50. Unlike in RH v R (2014) 241 A Crim R 1; [2014] NSWCCA 71 where the appellate had in fact admitted to the tendency conduct.
51. VD Exhibit A Tab 25.
52. VD Exhibit A Tab 37.
53. VD Exhibit C.
54. VD Exhibit A Tabs 26 to 30.
55. VD Exhibit B. 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: 30 October 2020