R v Clarke

Court of Criminal Appeal (NSW)|2023-04-21|Before: Davies J, Fagan J, Yehia J

HEADNOTE [This headnote is not to be read as part of the judgment] The Director of Public Prosecutions appealed a pre-trial ruling made by a Judge of the District Court precluding the Crown from adducing evidence of a tendency of the respondent to have a sexual interest in children aged 6-15 years and to act on that interest by seeking to sexually touch or have sexual intercourse with children aged 6-15 years opportunistically when he had access to them through his close personal friendship with the children's parents. The respondent was charged with 13 counts of sexual offending against three child complainants. Ten of the counts, alleged to have been committed against LB, mostly involved sexual intercourse and were significantly more serious than the remaining three counts of sexual touching committed against KB and BB. The effect of admitting evidence as proof of the tendency would be to make the evidence of each complainant supporting the counts concerning him or her cross-admissible to prove each of the other counts. Section 97(1)(b) of the Evidence Act 1995 (NSW) provided that the tendency evidence is not admissible unless, inter-alia, "the court thinks that the evidence will … have significant probative value". Section 97A(2) created a presumption in the prosecution of child sexual offences that tendency evidence "about the sexual interest the defendant has or had in children" and/or "about the defendant acting on a sexual interest the defendant has or had in children" will have significant probative value for the purposes of sections 97(1)(b). Subsection (4) of s 97A provided that the Court may determine that the presumption is rebutted "if it is satisfied that there are sufficient grounds to do so" and sub-s (5) directed that a list of factors, pars (a)-(g), "are not to be taken into account when determining whether there are sufficient grounds for the purposes of subsection (4) unless the court considers there are exceptional circumstances in relation to those matters". The primary judge held that the tendency evidence lacked significant probative value, that the presumption in s 97A(4) had been rebutted, that s 97A(5) was not engaged and that, even if it were, there were exceptional circumstances that warranted taking into account some of the factors in pars (a)-(b) of sub-s (5). The issues for the Court (Davies, Fagan and Yehia JJ) to decide were as follows: 1. (1) Whether the ruling against admissibility "substantially weakened the prosecution's case": The limitation in s 5F(3A) of the Criminal Appeal Act 1912 (NSW), that the Director may only appeal against a ruling on admissibility of evidence that "eliminates or substantially weakens the prosecution's case" was satisfied in relation to the counts concerning LB because the only evidence available to the Crown that was capable of independently supporting LB's testimony was the evidence of tendency that could be given by KB and BB (at [39]). 1. (2) Whether the primary judge erred in his interpretation and application of s 97A of the Evidence Act: (i) The primary judge erred in holding that s 97A(5) was not engaged and in taking into account some of the factors listed in that subsection for the purpose of assessing whether there were sufficient grounds to determine that the tendency evidence did not have significant probative value. In his alternative reasoning, on the assumption that s 97A(5) did apply, the primary judge erred in determining that "there are exceptional circumstances" by reference to the bare existence of three of the factors listed in pars (a)-(f) (at [34]-[36]). (ii) "Exceptional circumstances" for the purposes of s 97A(5) would require that one or more of the features listed in pars (a)-(f) be present in an exceptional degree, or that there be some other exceptional circumstance outside the range of pars (a)-(f). To be exceptional, the circumstances must be more than merely sufficient to enliven some of the points of comparison, listed in pars (a)-(f), between the "tendency sexual acts" and the "alleged sexual acts" (at [36]). 1. (3) Whether the tendency evidence had "significant probative value" when assessed in accordance with s 97A of the Evidence Act: (i) As the primary judge had erred in principle, the Court was required to redetermine the question of admissibility irrespective of whether the "correctness test" or the "House v The King standard" was to be applied on the interlocutory appeal (at [39]). (ii) As no exceptional circumstances could be identified, the Court's consideration of whether the tendency evidence had significant probative value could not, by force of s 97A(5), take into account the criteria that, under the pre-existing law, would have been regarded as the basis in logic and common sense for comparing the sexual acts said to prove the tendency with the sexual acts charged. As the Court was not permitted to evaluate and weigh any of those matters that could inform a reasoned finding, one way or the other, about significant probative value, the presumption in sub-s (2) of s 97A was not rebutted (at [37], [40]). 1. (4) Whether the probative value of the tendency evidence "outweighs the danger of unfair prejudice to the defendant" so as to be excluded under s 101(2) of the Evidence Act. The tendency evidence to be adduced from KB and BB in proof of the 10 counts concerning LB would not give rise to a "danger of unfair prejudice" and would be admissible in a separate trial of the 10 counts. However, if the Crown were to lead LB's evidence as proof of tendency in its case on the charges concerning KB and BB, there would be a substantial danger of unfair prejudice because of the much greater gravity of the counts concerning LB. The probative value of the tendency evidence from LB in support of the charges concerning KB and BB would not outweigh that danger and the tendency evidence would be excluded from the trial on those charges. There would be no danger of unfair prejudice from KB's evidence being received as proof of tendency on the charges concerning BB and vice versa (at [41]-[43]). JUDGMENT

The issue on appeal - tendency (ii)

So far as the Crown's notice under s 97 of the Evidence Act concerns a second tendency, which is the subject of the present appeal, the notice was in the following terms: Notice is hereby given that the Prosecution presently intends to adduce evidence of "tendency" pursuant to the tendency rule in sub-section 97(1) of the Evidence Act 1995, ie evidence of the character, reputation or conduct of a person, or tendency that a person has or had 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. 1 The person whose "tendency" is the subject of the evidence sought to be adduced is Brett Clarke. 2 The tendencies sought to be proved are: (i) [not relevant to the appeal and not reproduced]; (ii) his tendency to have a particular state of mind, namely a sexual interest in children aged 6-15 years and to act in a particular way, namely to act on that sexual interest by seeking to sexually touch or have sexual intercourse with children aged 6-15 years opportunistically when he had access to them through his close personal friendship with the children's parents. 3 The substance of the "tendency" evidence which the Prosecution intends to adduce is contained within the following documents which previously had been served upon you. DOCUMENT DATE PARAGRAPH 1 1st Interview of [LB] 26/8/21 Q/A 76-127; 128-184; 223-301; 339-527 2 2nd Interview of [LB] 10/10/21 Q/A 61-80 3 3rd Interview of [LB] 8/11/21 Q/A 56-174; and 182-245 4, 5, 6 and 7 [not relevant to the appeal and not reproduced] 8 Interview of [KB] 19/9/21 Q/A 199- 328 9 Interview of [BB] 6/9/21 Q/A 73-108; 121-136; 144-171; 176-348

4 So far as is known to the Prosecution, particulars of the date, time, place and circumstances at or in which the conduct referred to in paragraph 3 three above occurred are contained within the documents referred to in paragraph 3. 5 So far as is known to the Prosecution, the names of each person who saw, heard or otherwise perceived the conduct referred to in paragraph 3 above are contained within the documents referred to in paragraph 3 above. 6 In the view of the lawyer with the current conduct of the matter, the tendency evidence sought to be adduced bears upon the facts in issue in this prosecution, including the following facts in issue: whether the sexual acts or sexual intercourse occurred.

The substance of the evidence to prove the tendency, as identified in paragraph 3 of the notice, is constituted by the specified parts of the three police interviews with LB and one police interview with each of KB and BB. The answers relied upon, specified by numbers in the transcript of the interviews, constitute the Crown's evidence of the acts alleged in each count. Each of the three complainants is the sole direct eyewitness to the conduct of the respondent that is said to constitute the offences concerning him or her, respectively. The answers nominated in the notice from the interviews of KB and BB include evidence of some uncharged instances of sexual touching and on the hearing of the appeal the Crown nominated additional answers concerning uncharged acts that it would rely upon from the first interview of LB conducted on 26 August 2021: Q/A 57, 65-74 and 211-212.
The effect of allowing the evidence specified in paragraph 3 of the tendency notice to be relied upon as proof of tendency (ii) would be to make each complainant's testimony concerning each count cross admissible against the respondent, for the tendency purpose, in the Crown's case on all other counts concerning all complainants. A consequence would be that the respondent could have no objection to a trial of all counts concerning all complainants on the one indictment. That is the avowed objective of the prosecution.
The learned judge ruled that the evidence is not admissible in proof of tendency (ii). The Director appeals from that decision as of right pursuant to s 5F of the Criminal Appeal Act.

The nature of the appeal

The Director's appeal is subject to the following constraint in sub-s (3A) of s 5F: (3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case.
The issue of admissibility engages ss 97 and 97A of the Evidence Act. The relevant part of s 97 is as follows (emphasis added): 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 - (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.
His Honour decided that the evidence could not be relied upon by the Crown because, in the terms of s 97(1)(b), he did not "[think] that the evidence [would] […] have significant probative value". The ruling did not turn upon weighing probative value against danger of unfair prejudice, under s 101(2), s 135 or s 137, although the question of prejudice to the respondent was referred to briefly at [71] of his Honour's reasons.
The Director referred the Court to authorities that are said to diverge on the question of whether, on an interlocutory appeal such as this, the Court must apply a correctness test - that is, decide for itself definitively whether the tendency evidence has significant probative value, on the basis that the criterion in s 97(1)(b) "demands a unique outcome" and that this Court must determine that outcome. The expression "demands a unique outcome" is Gageler J's: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [48]. The alternative possibility is that the threshold test in s 97(1)(b) "tolerates a range of outcomes, in which case the House v The King standard applies" (SZVFW at [48], citing House v The King (1936) 55 CLR 499; [1936] HCA 40). Under that alternative the Court would confine its attention to whether the learned judge considered relevant principles and facts and whether his ruling was therefore open to him; if so, the appeal would be dismissed although the Court might have ruled differently.
In DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [100] Allsop P considered it significant that the test in s 97(1)(b) is framed in terms of what the trial judge "thinks" about significant probative value, rather than in terms of definite ascertainment of that quality. DAO v R was an interlocutory appeal from a refusal to sever an indictment, which turned upon the admissibility of tendency evidence. Allsop P concluded that the trial judge's decision was to be reviewed according to the House v The King standard. Simpson, Kirby and Schmidt JJ took the same view.
In The Queen v Bauer [2018] HCA 40 the High Court held as follows: [61] The question of whether tendency evidence is of significant probative value is one to which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ. Consequently, in an appeal against conviction to an intermediate court of appeal, or on a subsequent appeal to this Court, it is for the court itself to determine whether evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was [citations omitted].
The Queen v Bauer was a conviction appeal rather than an interlocutory appeal from a ruling on evidence before trial. Nevertheless, in R v Riley [2020] NSWCCA 283 at [101] Bathurst CJ said that the High Court had held the approach taken in DAO v R was incorrect and did not qualify that view by reference to the stage at which the appeals had been brought in the two cases respectively. Notwithstanding that the procedural context of an appeal may have a bearing upon whether the correctness test or the House v The King standard is to be applied, it would make little sense for the latter to be adopted on a s 5F appeal concerning "significant probative value" of tendency evidence, given that the correctness test would be applied in the event of a conviction appeal. An accused person may bring an appeal under s 5F against a decision permitting the Crown to adduce tendency evidence. If the House v The King standard were to be applied in such an appeal and if the ruling were to be upheld, a subsequent conviction appeal might succeed on the correctness test. That would be chaotic, a consideration tending to support the view that the same basis of review must be applied in an appeal of either kind, namely, as held in The Queen v Bauer at [40].
The Director submits that, for the purposes of the s 5F appeal now before the Court, even if the House v The King standard should be applied, the Court would find that the learned judge misapprehended the interpretation and application of s 97A of the Evidence Act and that the Court must determine the issue of admissibility afresh, exercising jurisdiction pursuant to sub-s (5) of s 5F of the Criminal Appeal Act. Subsection (5) is as follows: (5) The Court of Criminal Appeal - (a) may affirm or vacate the judgment, order, decision or ruling appealed against, and (b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against.

Interaction of ss 97 and 97A of the Evidence Act

As explained by Kiefel CJ, Bell, Keane and Edelman JJ in Hughes v The Queen [2017] HCA 20 at [40], the probative value of putative tendency evidence has two aspects: [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. […] 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.
Section 97A of the Evidence Act was introduced with effect from 1 October 2020 and is applicable in the prosecution of the respondent by force of sub-s (1). For the purpose of determining whether the criterion of "significant probative value" in s 97(1)(b) is satisfied in a child sexual offence case, s 97A creates a rebuttable presumption that that threshold is met for any tendency of the kinds described in sub-s (2) of s 97A. Section 97A is in the following terms: 97A Admissibility of tendency evidence in proceedings involving child sexual offences (1) This section applies in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue. (2) It is presumed that the following tendency evidence about the defendant will have significant probative value for the purposes of sections 97(1)(b) and 101(2) - (a) tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest), (b) tendency evidence about the defendant acting on a sexual interest the defendant has or had in children. (3) Subsection (2) applies whether or not the sexual interest or act to which the tendency evidence relates was directed at a complainant in the proceeding, any other child or children generally. (4) Despite subsection (2), the court may determine that the tendency evidence does not have significant probative value if it is satisfied that there are sufficient grounds to do so. (5) The following matters (whether considered individually or in combination) are not to be taken into account when determining whether there are sufficient grounds for the purposes of subsection (4) unless the court considers there are exceptional circumstances in relation to those matters (whether considered individually or in combination) to warrant taking them into account - (a) the sexual interest or act to which the tendency evidence relates (the tendency sexual interest or act) is different from the sexual interest or act alleged in the proceeding (the alleged sexual interest or act), (b) the circumstances in which the tendency sexual interest or act occurred are different from circumstances in which the alleged sexual interest or act occurred, (c) the personal characteristics of the subject of the tendency sexual interest or act (for example, the subject's age, sex or gender) are different to those of the subject of the alleged sexual interest or act, (d) the relationship between the defendant and the subject of the tendency sexual interest or act is different from the relationship between the defendant and the subject of the alleged sexual interest or act, (e) the period of time between the occurrence of the tendency sexual interest or act and the occurrence of the alleged sexual interest or act, (f) the tendency sexual interest or act and alleged sexual interest or act do not share distinctive or unusual features, (g) the level of generality of the tendency to which the tendency evidence relates. (6) In this section - child means a person under 18 years of age. child sexual offence means each of the following offences (however described and regardless of when it occurred) - (a) an offence against, or arising under, a law of this State involving sexual intercourse with, or any other sexual offence against, a person who was a child at the time of the offence, or (b) an offence against, or arising under, a law of this State involving an unlawful sexual act with, or directed towards, a person who was a child at the time of the offence, or (c) an offence against, or arising under, a law of the Commonwealth, another State, a Territory or a foreign country that, if committed in this State, would have been an offence of a kind referred to in paragraph (a) or (b), but does not include conduct of a person that has ceased to be an offence since the time when the person engaged in the conduct.
Contemporaneously with the introduction of s 97A, s 101(2) was amended by deleting the test of whether "the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant" and rewording the subsection as follows (emphasis added): 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 outweighs the danger of unfair prejudice to the defendant.

The putative evidence of tendency (ii)

The passages from the police interviews that the Crown wishes to rely on for the tendency purpose, as part of its case on all 13 counts, are summarised in the following paragraphs.

Count 1 - LB's interview 26 August 2021, Q/A 76-127

LB told police that the respondent first engaged in sexual conduct towards him on a date that LB could fix only by reference to other events. Other evidence would show that this must have been when LB was about seven years old. The respondent was babysitting LB and his two younger siblings at the respondent's house. He called LB into his bedroom, where he was lying naked on his bed. [Count 1, act of indecency, s 61O(1) of the Crimes Act].

Count 2 - LB's interview 26 August 2021, Q/A 128-184

On the same occasion, upon seeing the respondent naked LB walked out of the bedroom. The respondent called him back and directed him by words and gestures to suck the respondent's penis, which LB did. [Count 2, aggravated sexual intercourse with a child under 10, s 66A(2)].

Count 3 - LB's interview 26 August 2021, Q/A 223-301

LB said that on a subsequent occasion the respondent came to LB's family home for a barbecue. He stayed overnight, sleeping in KB's room. In the middle of the night he entered LB's bedroom and fellated him. This occurred within approximately 18 months before the interview, when LB was 14-16 years old. [Count 3, aggravated sexual intercourse with a child aged between 14 and 16 years, s 66C(4)].

Count 4 - LB's interview 8 November 2021, Q/A 182-245

On an occasion between about mid-2020 and 26 June 2021 LB and his younger siblings were at the respondent's house using his swimming pool. LB left the pool and went into the house. He entered the respondent's bedroom and the respondent asked him to put his penis in the respondent's behind. LB did this. [Count 4, aggravated sexual intercourse with a child aged between 14 and 16 years, s 66C(4)].

Count 5 - LB's interview 26 August 2021, Q/A 339-427 - interview 10 October 2021, Q/A 61-80 - interview 8 November 2021, Q/A 61-80

In about early August 2021 LB and his younger siblings stayed at the respondent's house to be minded by him while their father was out of town and their mother had work commitments. LB slept in the lounge room. In the early hours of the morning the respondent called him into his bedroom and invited LB to suck the respondent's penis, which he did. [Count 5, aggravated sexual intercourse with a child aged between 14 and 16 years, s 66C(4)].

Counts 6 and 7 - LB's interview 8 November 2021, Q/A 88-95

On the same occasion as count 5 the respondent told LB that he wanted to "switch positions". LB then lay on top of the respondent, top to toe, with the respondent's penis in LB's mouth (count 6) and LB's penis in the respondent's mouth (count 7). [Counts 6 and 7, aggravated sexual intercourse with a child aged between 14 and 16 years, s 66C(4)].

Count 8 and alternate count 9 - LB's interview 8 November 2021, Q/A 96-138

On the same occasion as counts 5-7 the respondent asked LB if he could try to put his penis in LB's bottom. The respondent attempted to do that, four or five times, unsuccessfully. [Count 8, aggravated sexual intercourse with a child aged between 14 and 16 years, s 66C(4); alternate count 9, assault with intent to commit the offence, s 66D].

Count 10 - LB's interview 8 November 2021, Q/A 139-173

LB said that on the same occasion as counts 5-9 the respondent asked LB to put his penis in the respondent's bottom. LB did so. [Count 10, aggravated sexual intercourse with a child aged between 14 and 16 years, s 66C(4)].

Count 11 - KB's interview 19 September 2021, Q/A 244-294

KB said that on an occasion when he stayed at the respondent's home he showered in the respondent's ensuite bathroom and then walked into his bedroom. The respondent then squeezed his bottom and penis on the outside of his clothes. KB was aged 13 years. He said, "Uncle Brett" and pushed his hand away. [Count 11, sexual touching of a child aged between 10 and 16 years, s 66DB(a)].

Uncharged conduct - KB's interview 19 September 2021, Q/A 208-218; 228-237

KB said that on multiple occasions at one of the houses the respondent occupied and on one occasion at his subsequent residence, the respondent squeezed KB's buttocks on the outside of his clothing.

Count 12 - BB's interview 6 September 2021, Q/A 144-171

BB said that in late August 2021, when she was aged 11 years, she visited the respondent's house. While BB was watching the respondent's daughter play the piano, the respondent rubbed his hand up and down her thighs. She told him to stop and pushed his hand away, to which he responded by tickling her on the stomach. [Count 12, sexual touching of a child aged between 10 and 16 years, s 66DB(a)].

Count 13 - BB's interview 6 September 2021, Q/A 182-195, 259-267

BB said that on a morning in about early August 2021, after she had slept over at the respondent's house, he "slid his hand across [her] breasts" as she passed him walking out of a bedroom. [Count 13, sexual touching of a child aged between 10 and 16 years, s 66DB(a)].

Uncharged conduct - BB's interview 6 September 2021, Q/A 76-109, 121-136, 196, 268-348

BB said that on numerous other occasions over the 2 to 3 years preceding the date of her interview the respondent had touched her on the thighs, bottom and breasts, always on the outside of her clothing. On one occasion while she was staying at his house he rubbed his legs against her when she was getting ready for bed.

The primary judge's decision

At [63]-[64] of his reasons the learned judge referred to s 97A and recognised that, in general, it gives rise to a rebuttable presumption of significant probative value, for the purposes of s 97(1)(b), in relation to tendency evidence of either of the kinds described in sub-s (2) of s 97A. His Honour made the following observation, with which we agree: There is no doubt that the section was intended to make the admission of tendency evidence easier and to avoid some of the strictures placed on such admission by the authorities.
At [65]-[67] his Honour referred to The Queen v Bauer in terms that do not appear to have been part of the analysis that ultimately informed his decision. His Honour's dispositive reasoning is contained in paragraphs [68]-[71], which are more readily appreciated when read with [60]: [60] The difficulty arises in respect to the part of the second tendency to act on the tendency sexual interest by sexually touching OR having sexual intercourse with those children [in] whom he is sexually interested in the stated opportunistic circumstances. As counsel for the accused points out, all of the charges involving LB, save for count 1, involve sexual intercourse or intent to have sexual intercourse. Count 1 involves an act of indecency by laying naked on a bed when LB was present. The counts involving KB and BB are all sexual touching. Counsel for the accused submits that the complaints of KB and BB cannot have significant probative value so as to support the tendency alleged across all three complainants. That is, the complaints of BB and KB (being sexual touching only) cannot have significant probative value with respect to the complaints by LB of sexual intercourse and vice versa. [68] In this case, the evidence I have referred to may be significantly probative of the asserted state of mind, namely a sexual interest in children aged 6-15 years old, but may not be significantly probative of acting on that sexual interest by seeking to sexually touch them OR have sexual intercourse with them and be cross-admissible for the counts with respect to all complainants. That is because of the difference in the conduct of the accused alleged to have taken place with LB on the one hand and BB and KB on the other. All that evidence may be significantly probative of the accused having a sexual interest in those children but not of acting on it by sexually touching them (in the case of LB) or having sexual intercourse with them (in the case of BB and KB). I do not understand the Crown to assert that a tendency to sexually touch a child is a precursor to having sexual intercourse with that child. [69] In this case, I think there are sufficient grounds to rebut any presumption as to significant probative value that arises. That is because I have formed the view that the evidence may be significantly probative of the accused's state of mind as asserted in the second tendency but not ALSO significantly probative of a tendency to act in the manner asserted in the second tendency as against all complainants. This is not a matter caught by s 97A(5) and so can be taken into account by me without there being exceptional circumstances. [70] If I am wrong about s 97A(5) not applying, then I find that there are exceptional circumstances such that the matters raised by the accused in his written submissions as I have identified above, can be taken into account and the presumption of significant probative value is rebutted. That is because here the tendency sexual act for LB is different to the tendency sexual act for BB/KB AND the circumstances in which those respective tendency sexual acts occurred are different such that there is no linkage between the two. In effect, all that is shown is a disposition to commit crimes of the kind in question. [71] I accept the written submissions of the accused on the second tendency that the presumption is rebutted. I also accept the written submissions of the accused that the probative value of the evidence does not outweigh the danger of unfair prejudice to the accused if it is used as tendency evidence. I say that conscious of the principle that a trial judge must proceed on the basis that juries will act on directions given to them. However, here the evidence that the accused had penile/anal or penile/oral intercourse with LB cannot be probative of whether he sexually touched BB and KB and vice versa. It would be prejudicial to allow a jury to use the evidence of the acts against LB as tendency evidence with respect to the counts against BB and KB.
Paragraphs [60] and [68]-[69] contain his Honour's reasons for concluding, under sub-s(4) of s 97A, that the Crown's proposed tendency evidence lacks significant probative value, in rebuttal of the presumption in sub-s (2). The reasoning is based upon considerations that fall directly within par (a) of sub-s (5) of s 97A and, less obviously but nevertheless substantively, within pars (b) and (f). With respect, his Honour was in error to have relied upon those considerations without having first determined whether there are "exceptional circumstances" that would warrant taking them into account, as required by s 97A(5). His Honour gave no reasoned justification for the statement at the end of [69] that "this is not a matter caught by s 97A(5)". We do not consider that statement to be supportable in the circumstances of this case.
In par [70] his Honour addressed the position on the assumption, contrary to his own view, that s 97A(5) is engaged. However, the reasoning his Honour then applied is circular. Paragraphs (a)-(f) of sub-s (5) are potential points of comparison between the "tendency sexual acts" and the "alleged sexual acts" (as those terms are used in sub-s (5)(a)). The question raised by sub-s (5) is whether there exist "exceptional circumstances" that would warrant taking all or any of those points of comparison into account in assessing "significant probative value" of the "tendency sexual acts". The purported "exceptional circumstances" nominated by his Honour at [70] are merely three of the very points of comparison whose utilisation is in question, namely, pars (a), (b) and (f) of sub-s (5).
Those matters will not suffice as "exceptional circumstances" to disengage sub-s (5). For that purpose a court would have to find something beyond a mere difference between the "tendency sexual acts" and the "alleged sexual acts" (par (a)), or a mere difference in circumstances in which the "tendency sexual acts" and the "alleged sexual acts" occurred (par (b)), or a mere absence of shared distinctive or unusual features (par (f)). Either the court would have to find one or more of those features, or some other feature listed in sub-s (5), present in an exceptional degree, or some other exceptional circumstance different altogether from anything in pars (a)-(f). The legislature has provided no guidance as to the criteria by which "exceptional circumstances" might be discerned. It is sufficient for the determination of this appeal to say that, in order to be "exceptional", the circumstances must be more than just sufficient to enliven some of the points of comparison in pars (a)-(f).
Undoubtedly s 97A effects a very significant departure from the previous state of the law. The features described in pars (a)-(f) of sub-s (5), which the courts are now forbidden from taking into account in the assessment of whether putative tendency evidence has significant probative value, comprise substantially all of the criteria that, under the pre-existing law, were regarded as the basis in logic and common sense for comparing the sexual acts said to prove the tendency with the sexual acts charged.
It is clear from the language of s 97A that Parliament intended by enactment of this section that evidence that an accused person has exhibited a sexual interest in children, or has acted on such a sexual interest, should be deemed probative of any child sexual offence with which the person may be charged, in a very broad field of circumstances. Parliament also clearly intended that the courts should be constrained not even to consider countervailing indicia, tending against a conclusion of significant probative value, in any but exceptional circumstances. Those manifest intentions are reinforced by the Attorney General's second reading speech upon introduction of the Bill for the amendment.
We accept the Director's submission that the question of admissibility of evidence to establish tendency (ii) must be redetermined by this Court under s 5F(5) of the Criminal Appeal Act, whichever standard of review should be considered applicable. His Honour erred in principle by failing to apply correctly the relevant legislation. Therefore, if the House v The King standard should be applied, the Court must make its own determination of whether the Crown's putative tendency evidence "does not have significant probative value" pursuant to s 97A(4) of the Evidence Act. If the appeal is to be determined upon application of the correctness test, then, again, the Court must form its own view under s 97A(4). We also accept that the exclusion of the evidence of KB and BB as tendency evidence on counts 1-10 concerning LB substantially weakens the Crown's case on those counts because it deprives the Crown of the only evidence independent of LB that would be capable of supporting his allegations. Accordingly, the precondition to allowing the Director's appeal, as prescribed in sub-s 3A of s 5F, is satisfied.
We do not find any circumstances of the case that would justify the characterisation of "exceptional", thereby to permit consideration of the factors in s 97A(5)(a)-(f). Neither the degree to which some of those factors are exhibited in the evidence nor any other circumstance outside the range of those matters could be said to be exceptional. Hence, in its determination of whether the proposed tendency evidence lacks significant probative value, the Court is denied consideration of, or the opportunity to evaluate and weigh, any of the matters that could inform a reasoned finding, one way or the other, about significant probative value. Accordingly, the presumption in sub-s (2) of s 97A is not rebutted.
However, in so far as the evidence of LB would be relied upon to establish tendency (ii) and would for that purpose be tendered in proof of counts 11-13 concerning KB and BB, we consider that the probative value of that evidence on those counts would be outweighed by the danger of unfair prejudice to the respondent. Therefore, applying s 101(2) of the Evidence Act, LB's evidence cannot be used in proof of the three counts in which KB and BB are the complainants. Those matters must be tried separately from counts 1-10. The evidence of KB and BB in support of tendency (ii) would not give rise to a danger of unfair prejudice to the respondent if that evidence should be adduced in his trial on counts 1-10. KB and BB may be called as witnesses in such a trial, to give the evidence summarised above from their respective police interviews.
Our conclusion under s 101(2) rests upon there being a high degree of danger of unfairness to the respondent, rather than a low degree of probative value in LB's evidence of tendency in so far as it would be led on counts 11-13. Having regard to the statutory deeming of "significant probative value" under s 97A(2), it is difficult to see how the Court could ever evaluate the probative value side of the equation for the purposes of s 101(2). In this appeal the balancing exercise leads to exclusion because it is highly likely that LB's evidence, if accepted, would cause the jury to feel strong revulsion against the respondent as a man who would engage a child in adult sexual activity as LB describes. It would be difficult for many jurors to contain the emotional responses that this evidence would be likely to evoke. Counts 11-13, as alleged, were of much less gravity than the matters described by LB. Depending upon the quality of KB's and BB's evidence, jurors may be left with a reasonable doubt about the accuracy of their recall concerning the respondent's acts towards themselves. In the nature of those charges, under s 66DB(a), reasonable doubt concerning even minor details of the touching may lead to doubt about whether it was sexual and, hence, doubt about whether the offences are proved. There is at least a substantial danger that those issues could not be tried fairly to the respondent in a proceeding in which LB would give confronting evidence, for tendency purposes, only, on counts 11-13, that the respondent subjected him to most egregious sexual abuse.
In the trial of the respondent on counts 12 and 13 there would be no significant danger of unfair prejudice if the evidence of KB should be tendered in proof of tendency (ii). Similarly, in his trial on count 11 there would be no significant danger of unfair prejudice if BB's evidence should be adduced in proof of that tendency. Evidence of the acts constituting each of those three counts would be cross admissible for tendency purposes and not amenable to exclusion under s 101(2). A trial of the respondent on counts 11-13 could therefore take place on the one indictment.

Orders

For these reasons the orders of the Court are as follows: 1. Allow the appeal. 2. Set aside the order of the District Court made on 24 February 2023 refusing the Crown's application to rely upon the evidence specified in items 1-3 and 8-9 of its notice under s 97 of the Evidence Act 1995 dated 21 October 2022, to prove the tendency in paragraph 2(ii) of that notice in the prosecution of the respondent on the charges in the indictment against him dated 31 May 2022. 3. Order that in the prosecution of the respondent on counts 1-10 inclusive in the said indictment, wherein the complainant is the person known as LB, the Crown may rely upon the evidence specified in items 1-3 and 8-9 of the notice to prove the tendency in paragraph 2(ii). 4. Order that the in the prosecution of the respondent on counts 11-13 in the said indictment, wherein the complainants are the persons known as KB and BB, the Crown may not rely upon the evidence specified in items 1-3 of the notice but may rely upon the evidence specified in items 8 and 9 to prove the tendency in paragraph 2(ii).

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: 07 June 2023

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