R -v- BISHOP [2012] WASC 390 (22 October 2012)

3 The prosecution has sought leave pursuant to s 31A of the Evidence Act 1906 (WA) to adduce evidence of past conduct by both accused relating to sexual offending against children. The prosecution submits that the evidence should be admissible as it is probative of the existence of a sexual interest in children by each of the accused and a tendency by them to engage in sexual acts with children, including sexual intercourse, as defined in s 50AC of the Crimes Act. On this basis it is said to be propensity evidence as defined in s 31A of the Evidence Act.

4 The prosecution also submits that the evidence discloses an attitude (namely sexual interest) and conduct of both accused towards a class of persons, namely girls under the age of 16 years, over a period of time. This is said to fall within the definition of 'relationship evidence' as defined in s 31A of the Evidence Act.

5 In determining an application of this type it is necessary to assume that the evidence will be that which is contained in the prosecution brief. The brief in this case is a comparatively large one, extending to five leverarch folders.

6 The prosecution case is that while in prison together serving terms of imprisonment for sexual offences against children, Pendleton, Bishop and Cummins agreed to travel together to Thailand for the purposes of each of them engaging in sexual intercourse with a child under the age of 16 years. The conspiracy is alleged to have been initially manifested in discussions between the three men, but later each of them is alleged to have performed overt acts in furtherance of the conspiracy. It is alleged that the conspiracy gained momentum from early 2008 when Cummins was released from prison. Steps were then taken to implement the plan, including obtaining passports, researching places to live and work in Thailand, starting a business to use as a cover for a child brothel and communicating by letter, email and telephone with Thai women who had young children .

7 The evidence of the alleged conspiracy consists, firstly, of evidence from Cummins as to conversations between him and the other men and actions he took to implement the conspiracy. Secondly, evidence from witnesses who heard, or were a party to, conversations between the three alleged conspirators whilst in prison. Thirdly, intercepted telephone calls between Pendleton and Cummins. Fourthly, evidence of acts performed by each of the accused, allegedly in furtherance of the conspiracy.

8 The central issue at the trial is likely to be whether there was an agreement between the accused as alleged. As with most conspiracy trials this will depend upon an assessment of all of the evidence and whether an inference of a conspiracy can be drawn and other inferences excluded.

9 Both Bishop and Pendleton were at all relevant times serving terms of imprisonment for serious sexual offences to which they had pleaded guilty. Pendleton and Cummins met whilst participating in a sexual offender treatment programme in prison. This provided the context for discussions between them as to what became their future plans.

10 The fact that Bishop, Pendleton and Cummins met whilst they were all serving prison sentences and that the alleged conspiracy was initially formulated in that environment will necessarily form part of the prosecution case. Counsel for both Bishop and Pendleton accept this. They also accept that it is relevant for the jury to know what offences each of the accused had previously committed, over what period of time those offences had occurred, the ages of the victims and the date and duration of the sentences that were imposed. In each case the accused, through counsel, have indicated a willingness to make admissions under s 32 of the Evidence Act in respect of those facts. The purpose of those admissions is said to be to provide relevant context to the events relating to the alleged conspiracy, there is no concession that the prior offending is admissible as propensity or relationship evidence.

11 The evidence that the prosecution wishes to adduce in respect of the past conduct goes significantly beyond the proposed admissions. It relates to the factual details of the past offending. In Pendleton's case it also includes a handwritten chart which I will refer to in more detail later.

12 Given the proposed admissions, the issue is not whether the jury will be provided with information as to the circumstances which led to Bishop, Pendleton and Cummins being imprisoned. That fact and sufficient details of their past offending to provide any necessary context for their discussions in regard to the alleged conspiracy are not in dispute. The issue is whether the specific factual details of the past offending by Bishop and Pendleton is probative and should be admitted at the trial of the conspiracy charges.

The proposed propensity evidence against Bishop

13 On 27 June 2002 Bishop pleaded guilty in the District Court to 44 counts of sexual penetration of a child under the age of 16 years who he knew to be his defacto child, contrary to s 329(2) and s 9(a) of the Criminal Code (WA). Those offences included a range of the sexual offences committed by Bishop against his two de facto daughters, including penilevaginal and digital penetration. The victims were aged between 12 and 14 and between 14 and 16 years respectively at the time of the offences. Bishop was aged 63 at the time of the sentencing and was approximately 58 to 62 at the time of the offences. The 44 counts were alleged to be representative of a much longer history of sexual offending that had occurred between June 1997 and January 2001.

14 The facts were admitted by Bishop through his counsel, other than in respect of a minor point as to whether he had ever become angry with the girls at any point in time. Bishop was sentenced to a total effective sentence of 20 years' imprisonment which was reduced on appeal to 16 years' imprisonment: Bishop v The Queen [2003] WASCA 79.

15 The State proposes to lead evidence of the fact that Bishop was convicted of these offences and the material facts of the offences. This would be done by tendering a certificate of conviction (pursuant to s 47 Evidence Act) and a certified copy of the relevant portion of the transcript of the sentencing proceedings (pursuant to s 80 of the Evidence Act): Bennett v The State of Western Australia [2012] WASCA 70 [131] [133] (Buss JA).

16 The relevant portion of the transcript appears in the prosecution brief at pages 1603 to 1623 (pages 50 to 70 of the District Court transcript of 27 June 2002). Those 20 pages include a detailed recitation by the State prosecutor of the facts relating to the charges. In the course of reading those facts the prosecutor referred to a police interview that occurred on 22 January 2001. The State prosecutor said that some of the comments made by Bishop in the interview indicate that he had firmly entrenched views which are characteristic of those who indulge in paedophilia. There is also a reference to Bishop having stated in the interview that he disagreed with the law relating to the age of consent. There is reference to the offences having commenced with touching and having progressed to penetration.

17 Each of the acts that is the subject of the 44 charges is then described in detail. There is reference to Bishop having told one of the victims that what he was doing was natural and was supposed to happen. The offences all occurred in the context of a continuing de facto relationship between Bishop and the mother of the girls. The offences occurred in the family home, in his car and in the vicinity of a holiday house. There were very many acts of penile penetration which occurred at the direction of Bishop and which on occasion involved threats and coercion.

The proposed propensity evidence against Pendleton

18 The prosecution proposes to lead evidence of three groups of sexual offences to which Pendleton has pleaded guilty.

19 Group one comprises 130 sexual offences committed between 1995 and 2000 when Pendleton was a teacher at a number of preprimary schools. The offences were committed against female preprimary children aged between four and five years. The offending involved taking photographs of the children in the nude and in sexual suggestive poses as well as taking photographs of their genitalia. He digitally penetrated the vagina and anus of one of the children and visually recorded himself doing so. Some child pornography was found in his possession as well as 37 pairs of young girls' knickers.

20 The offences consisted of six counts of possession of child pornography, one count of showing offensive material to a child under 16 years, 20 counts of indecent dealing with a child under 13, 18 counts of procuring a child under 13 to do indecent acts, nine counts of sexual penetration of a child under 13 and 76 counts of indecently recording a child under 13.

21 Pendleton pleaded guilty to all charges on 7 December 2000. The facts were admitted on his behalf. He was initially sentenced to 12 years' imprisonment without parole and an indefinite term of imprisonment. That sentence was appealed and on 24 January 2002 the appeal was allowed to the extent of ordering that Pendleton be eligible for parole and quashing the indefinite sentence.

22 The facts in relation to this group of offences were read to the court by the prosecutor on 7 December 2000 and the transcript of those proceedings appears in the prosecution brief at pages 1470 to 1482 (transcript of 7 December 2000 in the District Court, pages 6 to 18). The prosecution propose to lead the prosecutor's statement of facts as well as a summary of those facts given by the sentencing judge in his reasons for sentence (prosecution brief pages 1454 to 1455). The following excerpt from the sentencing judge's remarks provides sufficient details for the present purposes of nature of the allegations:

The six counts of possession of child pornography arise from your possession of two handwritten pornographic stories, a file containing computer images, a scrapbook of photographs from magazines, a child pornography magazine and a number of woodcuts and sketches. The nine counts of sexual penetration all involve one child and are acts of digital penetration of her vagina and anus occurring on two occasions which were video recorded on film by you and showing the two of you on that film. On that video film you show her a pornographic magazine which is the subject of count 7 and you indecently deal with her on matters the subject of 15 counts in various ways and sexually penetrate her. The two video tapings are the subject of two separate counts.

It seems to be quite plain from the video film which I have viewed that to the child what she was being asked to do was a matter of routine and unsurprising with the clear implication that it occurred before; in my view probably a number of times.

Counts 34 to 130 comprised the subject matters of numerous photographs of 12 very young children, amongst which in particular two of them had been photographed doing acts of indecency procured by you or in which you are indecently dealing with them.

23 During the course of the sentencing proceedings the prosecution tendered what was described as an 'offending chart' (prosecution brief 1492 to 1501). This document was a yellow project book containing what appear to be references to Pendleton's history of sexual behaviour over the course of his life. The sentencing judge found that the chart was likely to be a catalogue of his previous behaviour. It is a document divided into columns. The columns are headed 'name', 'place', 'year', 'their age', 'my age'. There are also a number of columns with headings describing various types of indecent acts and a final column containing some comments. There appears to be some repetition in the chart and not all of it includes details as to the ages. That part of the chart that does refer to ages commences with 'my age' being '7' and continues to 'my age' '36'. The 'their age' column has ages between three and 37. At least initially the two ages are often similar but towards the end of the chart many of the entries in the 'their age' column are substantially less than the entry in the 'my age' column. Indeed, the majority of the entries in the 'their age' column in the last three pages are under ten. The prosecution proposes to call the police officer who seized this document from Pendleton's house. Its relevance is said to be that it establishes the extent of his entrenched paedophilia at the time he was convicted of the first group of offences. That inference is said to open whether the chart represents historical facts or mere fantasies.

24 The second group of offences comprises 43 sexual offences committed between 1993 and 2000. They were committed largely at the same time as the offences in group one. They involve conduct of a similar kind as to that that was the subject of the group one charges.

25 The offences consist of 14 counts of indecently recording a child under 13, 27 counts of procuring a child under 13 to do an indecent act, one count of supplying child pornography and one count of possessing child pornography with intent to sell or supply.

26 Pendleton pleaded guilty to the charges on 1 March 2002. The facts were read to the court and appear in the prosecution brief at pages 1525 to 1532 (District Court transcript of 1 March 2002 pages 12 to 19). The facts were accepted by Pendleton's counsel. He was sentenced on 21 June 2002 to a total effective sentence of 4 years' imprisonment, cumulative on the 12 year sentence he was already serving.

27 This group of offences arose out of the same investigation that had resulted in the group one charges. In the course of that investigation a quantity of child pornography had been found at Pendleton's home and in a box he had secreted at another place. After the group one charges were laid further investigation led to identification of a number of other children whose images appeared on photographs and computer disks. This resulted in the police charging him with further offences.

28 In the statement of facts read to the court by the State prosecutor there is reference to a number of the charges relating to girls under the age of ten who Pendleton encouraged to expose their genitals and pose in sexually suggestive ways whilst he photographed them. In regards to possession of child pornography the State prosecutor describes Pendleton as a compulsive collector of child pornographic images who spent many hundreds of hours seeking to complete sets of images and uploading images to assist other collectors. There was a reference to 19 compact disks and 'upwards of 50,000' items of child pornography.

29 The third group of offences comprise three offences of possessing child pornography to which Pendleton pleaded guilty on 21 March 2003. The facts were read to the court by the State prosecutor and are contained in the prosecution brief at pages 1579 to 1580 (District Court transcript of 21 March 2003 pages 11 to 12). Those facts were accepted by Pendleton's counsel. He was sentenced on 21 March 2003 to a total effective sentence of 6 months' imprisonment, cumulative on the 16 year term he was then serving.

30 This group of offences concern sketches depicting naked children and sexual acts involving naked children as well as handwritten stories involving sexual fantasies with children. These items were found in Pendleton's prison cell. The sketches were contained in a ruled note pad and include 29 sketches depicting children's naked genitalia. Alongside each sketch was written a child's Christian name and surname, date of birth, age and a description. The ages of the children ranged from two to 13 years. The stories comprised a large number of handwritten pages describing detailed accounts of sexual acts involving young children. These writings amounted to two separate stories and constituted counts 2 and 3.

31 Section 31A of the Evidence Act prescribes the circumstances under which the court may admit propensity and relationship evidence. In the present case, the prosecution submits that the evidence of the factual details relating to the prior convictions is propensity evidence and also, possibly, relationship evidence.

32 'Propensity evidence' is defined in s 31A(1) as meaning:

(a) similar fact evidence or other evidence of the conduct of the accused person; or

(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;

33 'Relationship evidence' is defined in the same subsection as meaning:

relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.

34 Evidence will be admissible under s 31A(2) if the court considers:

(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fairminded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

35 Both of those tests must be satisfied in order for the propensity or relationship evidence to be admissible. As regards the first test in Dair v The State of Western Australia [2008] WASCA 72 Steytler P said:

Before evidence can have significant probative value it must be such as 'could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent: ie, more is required than mere ... relevance': Zaknic Pty Ltd v Svelte Corporation Pty Ltd [1995] FCA 1739; (1995) 61 FCR 171, 175 - 176. Heydon [21245] suggests that significant probative value is something more than mere relevance but something less than a 'substantial' degree of relevance and that it is a probative value which is 'important' or 'of consequence'. He makes the point that the significance of the probative value of tendency evidence must depend on the nature of the facts in issue to which it is relevant and the significance or importance which that evidence may have in establishing the fact: Lockyer (1996) 89 A Crim R 457, 459; Lock (1997) 91 A Crim R 356, 360 - 361; Fordham (1997) 98 A Crim R 359, 370; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 [77] - [82]; The State of Western Australia v Osborne [2007] WASCA 183 [13]. [61]

36 As regards the second test, Steytler P examined the comparison which s 31A(2)(b) requires in Dair. The points made by his Honour were referred to by Buss JA in Onekawa v The State of Western Australia [2012] WASCA 105 as follows:

In Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413, Steytler P examined the comparison which s 31A(2)(b) requires. The following points may be noted from his Honour's examination. First, s 31A(2)(b) requires the court, having already found under s 31A(2)(a) that the evidence has significant probative value, to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question [62]. Secondly, the prejudice to an accused from the admission of propensity evidence may include: an over strong tendency by a jury to believe that the accused is guilty of the charge merely because he or she is a person likely to do the acts in question; a tendency by the jury to condemn the accused, not because he or she is believed to be guilty of the charge, but because he or she has escaped punishment for other offences; and that the jury might become confused or distracted from the charge because it concentrates on resolving whether the accused has actually committed the acts constituted by the propensity evidence [63]. Thirdly, when assessing the risk of an unfair trial for this purpose, the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury [64]. Fourthly, after identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fair-minded people would draw from a comparison of these issues [66]. Although fair-minded people are reasonable members of the general community who are not lawyers, it must be assumed that such people have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances' [66]: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J) [45].

37 See also Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122; Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482; Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 368 and Roncevic v The State of Western Australia [2010] WASCA 213.

38 The prosecution submits that, in respect of each of Bishop and Pendleton, the evidence has the capacity to establish that they were, at the relevant time, persons who had a sexual interest in children under the age of 16 years and were highly likely to engage in acts of sexual intercourse with such children. That is said to be a fact relevant to an assessment of whether the conversations referred to by various witnesses took place, whether those conversations represented real intentions and whether the nature of the sexual acts the subject of the conversations included sexual intercourse as defined in the Crimes Act. It is said that the evidence is capable of significantly increasing the likelihood of each of those matters.

39 The prosecution submits that it is of particular relevance that the proposed evidence shows that each accused had an entrenched sexual interest in young girls and engaged in sexual conduct towards such girls over a prolonged period and that such conduct included sexual intercourse. It is said that in Pendleton's case the offending chart augments the convictions by establishing the extent of his sexual activities with children.

40 The prosecution submits that in the absence of the proposed evidence the jury will be required to make assessments as to the meaning and intention of the conversations in a contextual vacuum. It is said that the proposed evidence is capable of lending credibility to the evidence of witnesses that the accused engaged in conversations about establishing themselves in an Asian country in order to have access to children with whom they would have sex. It is also said that the fact that each accused and Cummins held an attitude that it was acceptable to commit sexual offences against children and had committed them previously renders it more likely that they would agree to do so together overseas upon their release. In short, the prosecution submits that the evidence explains the motivations of the alleged conspirators.

41 The prosecution also submits that because the propensity evidence is integral to providing a proper context for consideration of the evidence going directly to proof of the conspiracy it follows that fairminded people would think that the interests of justice require the admission of the evidence despite the risk of an unfair trial. It is pointed out that the jury will inevitably hear evidence that Cummins was a convicted sex offender and that he became friends with Pendleton and Bishop because they were all sex offenders in the sex offenders' wing of the prison. It will also emerge that a catalyst for Cummins having discussions with Pendleton about the Thailand plan was that Cummins and Pendleton both had similar 'victim profiles'. That is to say that Cummins became aware that Pendleton was also sexually interested in very young girls. It is suggested that any risk of an unfair trial must be seen in a context of the jury becoming aware of the facts just referred to in any event.

42 The prosecution submits that a jury would not be distracted or confused by any need to determine if the accused are guilty of the offences the subject of the propensity evidence as they have previously pleaded guilty to all of them. It is said that a jury would be unlikely to want to further punish the accused for those offences by finding them guilty of conspiracy as they received very lengthy terms of imprisonment in respect of them. In any event, it is said that the risk of such improper thinking could not outweigh the interests of justice in requiring the admission of the evidence.

43 Finally, the prosecution submits that adducing evidence of the precise facts of the accused's prior convictions will prevent the jury speculating about the offences. It will provide a factual basis on which they can assess whether the agreement reached by the accused, if they find it proved, was in fact to engage with sexual intercourse with children under the age of 16 years.

44 On behalf of each of the accused it is submitted that the evidence of the details of the prior offences is not significantly probative of any fact in issue and thus does not meet the first test in s 31A(2)(a). It is said that the evidence is not such as could rationally affect the assessment of the probability of a relevant fact in issue to a significant extent. The relevant fact in issue is said to be whether Bishop and Pendleton agreed to enter the alleged unlawful agreement referred to in the indictment. Knowing the precise details of their past offending will not assist in determining whether that agreement occurred.

45 It is also submitted on behalf of the accused that the evidence does not establish any entrenched sexual interest or propensity to offend in the way alleged. In the case of Bishop this is said to be because the offending in the past was confined to members of his immediate family, that he was 58 years old when his past behaviour commenced and there is no history of sexual offending against children prior to the offences against his stepdaughters. On behalf of Pendleton it is submitted that the past offences were not in the nature of a conspiracy.

46 On behalf of both accused it is submitted that the proposed evidence would be highly prejudicial and would lead to an overstrong tendency to assume that the alleged offences had been committed. That is to say, that the jury would be likely to be so influenced by the proposed propensity evidence that they would find the accused guilty irrespective of the strength of the evidence on the conspiracy charges.

47 Counsel for both accused stated that they had received instructions to make formal admissions regarding why their client was in prison at the relevant time, the length of time he was to serve, the nature of the offences that he was convicted of and the ages of his victims. This was said to contain sufficient information for the jury to understand the context in which the alleged conspiracy occurred whilst avoiding any unnecessary prejudice that would arise from knowledge of the details of their past offending.

48 It is important to bear in mind that the present charges are of conspiracy. The issue for the jury will be to determine whether each of the accused entered into an agreement as alleged. Whilst it is the prosecution case that steps were taken to implement the conspiracy, it is not alleged that the objects were achieved. It is not alleged that any sexual acts were actually committed upon children.

49 In the case of both of the accused, the prior offences were not of conspiracy. Nor were the prior offences committed jointly with others or pursuant to any common plan. They involved completed offences of indecency or sexual penetration. It is a feature of conspiracy that it involves the coming together of a number of individuals to pool their resources and efforts in order to better achieve their common objectives. There is nothing in the past conduct of Bishop or Pendleton to suggest that they have previously conspired with others or shown any propensity to do so. To this extent, the past offences are different from those which are presently alleged.

50 The fact that the objectives of the conspiracy were not achieved also means that there are no actual victims to give evidence of sexual acts committed by the accused. The nature of any sexual acts to be committed against intended victims and the ages of those intended victims must be the subject of inferences drawn from the conversations and acts of the alleged conspirators at the relevant time.

51 In respect of conversations overheard by other prisoners, the evidence is largely of a general nature rather than being verbatim accounts. In regards to telephone conversations, these may well be guarded in nature (given that they occur on prison telephones that are known to be recorded). In these circumstances it will be necessary for the jury to consider whether they can draw an inference that the conversations relate to a real plan to commit offences of sexual intercourse against children under the age of 16 in Thailand. That will require careful consideration of the words used, the context in which they are spoken, the surrounding facts and the evidence of Cummins.

52 It is difficult to see how the factual details of past offending could assist in interpreting the conversations. The conspiracy is alleged to have occurred between 2006 and 2008. Bishop's offences occurred between 1997 and 2001 and Pendleton's offences between 1995 and 2003. There is no factual or temporal connection between the past offences and what is alleged in respect of the conspiracy. There is no reason to think that the conspiracy or its objectives were discussed, or even contemplated, by the accused at the time of the earlier offences.

53 The suggestion that the past conduct is relevant as showing a propensity to commit sexual offences against children is also problematic. It is arguable that there are some similarities between what the prosecution alleges was proposed on this occasion and what each accused had done in the past. In particular, that each accused has engaged in sexual acts with young girls over extended periods of time in circumstances where they were in a trusted relationship with those girls.

54 On the other hand, there are a significant number of differences. These include that none of the past offences occurred overseas or involved the grooming of foreign women for the specific purpose of gaining access to their children. They did not involve setting up a business as a means of employing poor women and gaining access to their children. In Bishop's case, his past offending occurred in a familial context and with girls between the ages of 12 and 16. In Pendleton's case, his victims had been accessed through his role as a teacher.

55 Whilst it is not necessary that there be a striking similarity for propensity evidence to be admissible, propensity reasoning does require that there be sufficient similarity between past and alleged conduct for there to be a basis for reasoning that it is more likely that the accused did what is alleged because of his past conduct. Where there are significant differences in the conduct and it is of a seriously reprehensible nature there must be a high risk that it will encourage a jury to reason that the accused committed the offence alleged simply because he is generally of a bad character, rather than because he has some proven relevant disposition.

56 As regards the prosecution's submission that the past conduct is evidence of what it is that would motivate each accused to enter into the conspiracy alleged, this assumes the continued existence and strength of that motivation. That is likely to be a matter in issue at the trial. It cannot be assumed that a past desire will necessarily have continued unchanged and unabated. The passage of time and the impact of incarceration and treatment may make such an assumption unsafe.

57 Whether or not Bishop and Pendleton had a continuing sexual interest in children between 2006 and 2008 and whether it was of a nature as to be likely to induce them to enter into the alleged conspiracy is the subject of abundant evidence from the period of the conspiracy itself. In these circumstances, it is difficult to see why the details of the past offending would have significant probative value. Either the evidence of their statements and actions in the relevant period will establish that they had a sexual interest in children at that time or it will not. To provide the jury with detailed evidence of a past sexual interest in children would only serve to distract them from the evidence that is directly relevant to the period in question.

58 The suggestion that the proposed evidence could assist the jury in determining whether the conspiracy was one the object of which was to commit acts of sexual intercourse must be open to question. The nature and objects of the conspiracy must be determined by inferences to be drawn from the available evidence of what was said and done between 2006 and 2008. Offending conduct that occurred between 13 and three years earlier could not assist in determining the nature of the conspiracy. This argument presumes that each accused's sexual interests in children have been primarily directed to sexual intercourse. In the case of Pendleton, most of his past offences did not involve acts of penetration.

59 As to the suggestion that the evidence could constitute relationship evidence, the class of persons to whom it is suggested the evidence reveals an attitude on behalf of both accused is drawn so widely as to reduce significantly any possible relevance of that evidence. The prosecution has suggested that the evidence discloses an attitude (namely, sexual interest), and conduct of both accused towards a class of persons, namely girls under the age of 16. This class is so wide that it encompasses the very different past offending of both Bishop and Pendleton.

60 The purpose of relationship evidence is to show a particular disposition towards potential victims of a certain type. Its relevance depends upon being able to identify that type with some degree of specificity such as to make it more likely that the accused will commit an offence in respect of such a victim. In this case, the class is so broad as to make such predictions less meaningful and reduce the possible relevance of the evidence.

61 Evidence is not admissible simply because it meets the definition of propensity or relationship evidence. It is only admissible if it meets the requirements of s 31A(2) (subject to any remaining basis for admission under the common law - which is not relied on here). Both limbs of those requirements must be met. I will now consider each limb in turn.

62 It is not sufficient that the evidence is merely relevant; it must have significant probative value. In my view, the proposed evidence here is not such as could rationally affect the assessment of the probability of a relevant fact in issue to a significant extent. That is, it could not make it more likely, to a significant extent, that either of Bishop or Pendleton had the motivation to, and did in fact, enter into the agreement as alleged. In coming to that conclusion I have referred to the accused together. However, I recognise that the evidence is different in respect of each of them and I have separately considered that evidence.

63 Even if the evidence did have significant probative value it would be necessary for it to meet the second test in s 31A(2). The details contained in the transcripts that the prosecution wish to adduce are extensive and the contents are likely to shock the members of a jury. There would be a very significant risk that jurors would feel revulsion, if not animosity, towards the accused as a response to such evidence. Those feelings would be extraordinarily difficult to quell by any directions.

64 The nature of the proposed evidence is such that it would be likely to produce an overstrong tendency to believe that the accused are guilty merely because they have committed the prior offences. There is also a likelihood that the jury would feel a desire to condemn because they might think that the accused have escaped punishment for other offences. The prosecution suggests that this is not a real risk because the jury would become aware of the substantial sentences previously imposed on the accused. However, in the cases of each accused it is apparent from the transcripts of the prior proceedings that the offences for which they were sentenced were considered to be representative in nature and not to cover the whole extent of their offending. This would be obvious to the jury and may foster a view that additional punishment for past conduct was deserved.

65 It is important to take into account the possibility that directions could be given to a jury that could obviate or reduce the risk of an unfair trial. Whether such directions can be given and whether they will be effective depends upon the nature and quantity of the propensity evidence which is sought to be adduced. In my view, no directions could sufficiently obviate or minimise the risk of an unfair trial. Indeed, there is a risk that directions would only serve to focus attention on the propensity evidence and away from all other evidence in the trial. The nature and quantity of the propensity evidence is such that there is a high likelihood that jurors would conclude that the accused are guilty on the basis of that evidence without regard to any other evidence in the trial.

66 In my view, there is also a risk that the jury may become confused or distracted by the proposed evidence. The prosecution suggests that this risk would not occur because the prior offences were admitted so there would be no need for the jury to determine whether they occurred. However, there is a real risk that the known details of the past offending would take on greater significance in the context of an alleged conspiracy. Rather than concentrating on whether the nature and objectives of the conspiracy were proven by the available evidence of what was done and said between 2006 and 2008, the jury's attention is likely to be deflected by the details of the past offences. It is likely that the jury would use the propensity evidence alone to reason to a conclusion of guilt rather than using it to assist in drawing inferences.

67 There is a public interest in ensuring that any trial is a fair one. It is an essential feature of a fair trial that any verdict is reached by a dispassionate assessment of the evidence. The risk that such an assessment would not occur if the proposed evidence is admitted is high. That risk is not justified in circumstances where the probative value of the evidence is limited.

68 For these reasons, even if the evidence had probative value, that value when compared to the degree of risk of an unfair trial is such that fairminded people would not think that the public interest in adducing the evidence must have priority.

69 In assessing the probative value I have also taken into account the other evidence available to the prosecution. Whilst relevance is not a relative concept, this is a case where there is extensive evidence regarding the events of 2006 to 2008. That evidence includes not only conversations but overt acts said to have been committed in furtherance of the conspiracy. In that context, fairminded people may well think that the risk of an unfair trial by adducing the propensity evidence is not one that is demanded by the probative value of that evidence in the context of the evidence as a whole.

70 It is also relevant in considering the application brought by the State to note the admissions which each accused proposes to make. I have taken those proposed admissions into account in coming to my conclusion in regards to the probative value of the evidence. One of the arguments made by the prosecution was that the jury would unnecessarily speculate about why the accused were in prison. It was also suggested that the jury would have no context in which to place the acts and conversations of the alleged conspirators. If the admissions are made by the accused those concerns substantially fall away. In my view, those admissions would place the conversations in proper context and ensure that the jury was not distracted by the details of that prior offending.

71 For the above reasons the application by the prosecution to adduce the propensity evidence is refused.

72 These reasons, for obvious reasons, will only be provided to the parties and will be suppressed from publication until the conclusion of the trial.