R v CX [2016] ACTSC 106

[2016] ACTSC 106

CRIMINAL LAW - Particular Offences - offences against the person - engaging in sexual intercourse with a young person - act of indecency with a young person - indecent assault.

EVIDENCE - Judicial Discretion to Admit or Exclude Evidence - application to admit tendency evidence - where accused applies to cross-examine complainants on application - whether allegations concocted - whether allegations subject to contamination - consideration of IMM v The Queen [2016] HCA 14 - application allowed in part.

EVIDENCE - Judicial Discretion to Admit or Exclude Evidence - application to admit relationship and or context evidence - to explain late complaint - application allowed in part.

Evidence Act 1995 (NSW) ss 137, 165

Evidence Act 2011 (ACT), ss 97, 101, 137

Evidence (National Uniform Legislation) Act (NT), ss 55, 66, 97, 137

Dupas v The Queen [2012] VSCA 328; (2012) 40 VR 182

Festa v The Queen (2011) 208 CLR 593

IMM v The Queen [2016] HCA 14

R v Lock (1997) 91 A Crim R 356

R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228

R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363

1. The accused, CX, is awaiting trial on six counts of indecent assault, three counts of sexual intercourse with a young person and seven counts of committing an act of indecency upon a young person. The allegations relate to four complainants: SP, DN, LT and ST. The complainants SP and DN are sisters, and are the daughters of the accused. The complainants LT and ST are also sisters, but are unrelated to the other complainants or the accused. It is alleged that LT and ST were, at the relevant times, children who were minded by the accused's wife at her and the accused's home as part of a childminding business that she conducted.

2. The allegations against the accused relating to SP relate to the periods between 1 January 1973 and 31 December 1973, and 2 August 1981 and 1 August 1982. The allegations relating to DN relate to the period 1 January 1984 to 27 November 1985. The allegations concerning LT relate to the periods between 1 January 1987 and 31 December 1993, 1 January 1991 and 31 December 1993, and 1 January 1998 and 31 December 1999. The allegation against the accused concerning ST relates to the period between 1 January 1991 and 31 December 1993.

3. By an application dated 18 April 2016, the Crown has applied for orders that it be permitted to adduce tendency evidence as outlined in a Notice to Adduce Tendency Evidence (the Notice), which has been served on the accused. The Notice sets out details of 19 "incidents" constituting a summary of the evidence the Crown proposes leading as tendency evidence at the trial of the accused. Many of those incidents describe the evidence the Crown proposes leading to prove individual counts on the indictment, but some relate to uncharged events. The Crown proposes to lead this evidence to establish that the accused had, at the relevant times, the following tendencies:

(a) a tendency to have a particular state of mind, being a sexual attraction to young girls;

(b) a tendency to act in particular ways, namely:

• (i) to obtain sexual gratification from young girls;
• (ii) to seek out opportunities to be alone with young girls;
• (iii) to inappropriately touch young girls;
• (iv) to establish receptiveness (sic), or normalise sexual behaviour, with young girls by talking or behaving sexually towards them; and
• (v) to take advantage of his familial relationships or position as carer with young girls to gain access to them.

4. Details of the incidents as set out in the Notice are:

On a night in 1973 [SP] (then 7 years old) was lying in the bottom bunk of her bed with her sheets and blanket covering her. Her mother, [DX], was away either having another baby or at a religious retreat with other women. At some point the accused walked into the room and sat down next to the bed. He didn't say anything and reached under the blanket and under [SP]'s nightie and touched her stomach before moving his hand inside her underpants and touched the outside of her genitalia for a couple of minutes. [SP] pretended to be asleep. The accused then carried [SP] to his bedroom and laid her down on the bed and took her underpants off, leaving her nightie on. The accused then touched her genitalia with his hands. [SP] felt the accused's erect penis pressed against her side. At some point the accused took her hand and made her touch his penis. The accused took a lid off a jar of Vaseline and put it on his fingers and touched the outside of her genitalia. [SP] felt pain in her groin area but didn't know if the pain was because the accused was penetrating her with his finger. At some point the accused ejaculated onto [SP]'s stomach before taking a cloth nappy and wiping the semen from her groin, stomach and hips.

On [a] day [between 2 August] 1981 and [1 August] 1982 [SP] (then 15 years old) went downstairs underneath the house. She was wearing a dress she had made at Ranger Guides. There was a section under the house that had been reinforced by concrete which was like a big games room. While she was standing there the accused made a comment about how see through her dress [was] before touching and rubbing her breasts over the top of her clothes. [SP] froze and felt paralysed with fear. The accused then put his hand between her legs and touched her genitalia area over the top of her clothes. He stated that she was warm and must have been aroused. The incident lasted for about one minute before he stopped.

On numerous occasions [between 1973 and 1982] the accused sexually abused [SP] by touching her breasts or genitalia, getting her to touch his penis, ejaculating on her and exposing himself to her.

On one occasion [between 2 August 1981 and 1 August 1982] the accused told [SP] that as a child she had an orgasm.

On another occasion [between 1975 and 1982] the accused told [SP] that when she was 8-9 years old that he disclosed the sexual abuse to [a priest at their church] but because this was done in confessional nothing could be done about it.

On numerous occasions [between 1975 and 1982] the accused talked to [SP] about sexual intercourse, menstrual periods and breast development. He took opportunities alone with her in the car to talk about sex. He used the excuse of talking to [SP] about sex so that she knew all of the physical details including that a man's penis needed to be fully inserted into a women's vagina. The accused also told her sexually explicit details of his honeymoon with her mother.

On numerous occasions [between 1975 and 1982] the accused repeatedly touched [SP]'s breasts and genitals through her clothing.

On numerous occasions in 1979 or 1980 [SP]'s friend, [NC], spent time at [SP]'s house. During this period the accused often tickled the children. The accused tickles (sic) [NC] (then around 12-13 years old), because she was so ticklish, until she was writhing around on the floor. There were no boundaries when this occurred and no areas of [NC]'s body that he would not touch or tickle.

On a day [between 1 January 1984 and 27 November 1985] [DN] (then 9-11 years old) was at home playing outside when she needed to go to the toilet. She snuck into her parent's bedroom where the accused was sleeping after shift work and went to the en-suite toilet. Afterwards when she tried to sneak back out the accused asked who was there. [DN] told him that it was her and he called her over to the side of the bed where he was lying. The accused asked her if she had any pubic hair yet before putting his hand down her pants and started to feel around her groin area. The accused then pulled her toward him and kissed her on the mouth while his hand was still down her pants. [DN]'s mouth was closed and the accused encouraged her to relax and open her mouth. [DN] did what she was told and opened her mouth and the accused kissed her using his tongue. While this was happening the accused still had his hand down her pants and was touching her genitalia and penetrating her vagina with his fingers. The accused asked her if it felt good.

On numerous occasions [between 1 January 1979 and 16 August 1984] the accused encouraged [DN] (then under 10 years old) to walk around the house with no top on in summer. [DN] never liked to do this, but the accused told her not to be so sensitive and encouraged her not to wear a top.

On another occasion [between 17 August 1982 and 16 August 1989] after [DN] had her first menstrual period the accused tried to explain it to her and told her sexually explicit details of his honeymoon with her mother.

On a day between [14 May 1991 and 13 May 1993] the accused took [LT] (then 5-6 years old) to the storage room under the house and coaxed her into a 'cut-out' area in one of the walls which had a foam mattress inside and a curtain or sheet across it. The accused laid [LT] down on the mattress and took off her underpants. He knelt over her and undid his pants exposing his penis and asked her to kiss his penis - which she did. The accused then kissed and put his mouth on her vagina.

On numerous occasions [between 1989 and 1994] the accused took [LT] to the 'cut-out' area under the house and made her kiss his penis. The accused also kissed and put his mouth on her vagina.

On another occasion [between 1989 and 1994] the accused sat on a chair under the house with [LT] sitting on his lap facing him. [LT] was wearing a pink and white cotton dress. At some point the accused removed her underpants and kissed her genitalia and inserted his finger inside her vagina. Afterwards [LT] ran out of the room to the front of house and hid under the car. [QX] tried to get her out from under the car. A short time later her mother, [NT], arrived at the house to pick up the children.

On another occasion [between 1989 and 1994] the accused lay [LT] down on the mattress in the 'cut-out' area before climbing in after her and pulling the curtain closed. A short time later someone else came into the storage room underneath the house. The accused got out of the 'cut-out' area and pulled the curtain across after him. He had told [LT] to be quiet and not say anything.

On another occasion [between 1989 and 1994] the accused and [LT] were in the accused's bedroom near his bed. The accused pulled down his pants and asked [LT] to kiss his penis. He had his hand on her shoulders and back of her head and pulled her towards his groin while he kept his other hand on his penis. However, [LT] refused. At about that time [DX] walked into the room and then walked straight out. [LT] then went out and sat in the lounge room and watched television.

On another occasion [between 1 January 1991 and 31 December 1993] the accused picked [LT] up from pre-school in his white truck and drove her past the North Curtin Playing Fields and pulled over to the side of the road somewhere. The accused then laid [LT] on a bench bed behind the seats however she is unable to recall anything more of what happened.

On another occasion [between 1 January 1998 and 31 December 1999] the accused was helping the [T] family move house [redacted for legal reasons]. [LT] (then 12 years old) went with the accused and one of his sons in a white truck and they arrived at the empty house before anyone else. At some point the accused took [LT] into an empty room and shut and locked the door. The accused tried to touch and kiss her. However, [LT] pushed him away and walked out of the room.

On a date between [1 January 1991 and 31 December 1993] [ST] (then 10-11 years old) was at [DX]'s house after school watching television when the accused walked into the television room and grabbed her hand and said he wanted to have a little chat. The accused led [ST] out into the backyard and sat down at the barbeque area. The accused asked her if she knew what sex was and asked her if she knew how men and women have babies. The accused then began to describe how a man's penis went into a women's vagina. At some point while the accused continued to talk about sexual intercourse his daughter, [T], came running out to the back yard to look for her. [T] grabbed [ST]'s hand and took her back into the house where they continued to watch television.

5. Counsel for the accused applied to cross-examine the complainants on the tendency application with a view to establishing that their allegations may be a concoction, or may have been subject to contamination through contact with each other. This application was made prior to the High Court handing down its decision in IMM v The Queen [2016] HCA 14 on 14 April this year (IMM). When the matter came before me on 19 April the Crown opposed the application to cross-examine the complainants based upon the decision in IMM. Before considering IMM it is appropriate to set out the relevant legislative provisions.

6. The application to lead tendency evidence is governed by the provisions of s 97 of the Evidence Act 2011 (ACT) (the Evidence Act), which relevantly 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 presented or to be presented by the party seeking to present the evidence, have significant probative value.

7. The requirements of s 97 are, therefore, that adequate notice of the intention to adduce tendency evidence be given to the other party, and that the court is satisfied that the evidence will, either by itself or in combination with other evidence to be presented by the party leading the tendency evidence, have significant probative value. It is accepted that the Crown has satisfied the notice requirement. The remaining issue is whether the evidence has significant probative value.

8. The term "probative value" is defined in the Dictionary to the Evidence Act as "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."

9. The requirements of s 97 provide the first hurdle for the Crown in seeking to lead tendency evidence in criminal proceedings. Where those requirements are satisfied the evidence still cannot be led unless it also satisfies the requirement of s 101 of the Evidence Act, which relevantly provides:

(2) Tendency evidence about a defendant or coincidence evidence about a defendant that is presented 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.

10. The effect of s 101(2) is to preclude the prosecution leading tendency evidence, notwithstanding that the evidence satisfies the tests in s 97, unless the probative value of the evidence substantially outweighs any prejudicial effect the evidence may have on the accused.

11. In IMM the appellant was found guilty after a trial in the Supreme Court of the Northern Territory of two counts of indecent dealing with a child and one count of sexual intercourse with a child under the age of 16 years. The complainant was the appellant's step-granddaughter. She alleged a course of sexual abuse by the appellant spanning approximately eight years from when she was four years old until her grandmother and the appellant separated, when the complainant was 12 years old. At the appellant's trial the prosecution was permitted to lead tendency evidence and evidence of complaint, despite this evidence being objected to by the appellant. The complainant's evidence was the only direct evidence of the commission of the alleged offences, although they occurred at different times.

12. The tendency evidence given by the complainant was to the effect that while the complainant and another girl were giving the appellant a back massage, the appellant ran his hand up the complainant's leg. The expressed purpose for leading this evidence was to establish that the appellant had a sexual interest in the complainant. It was alleged that there was a "strong temporal nexus" between this incident and the charged acts.

13. The trial judge approached the task of assessing the probative value of the tendency evidence on the assumption that the jury would accept the evidence, and did not have regard to factors such as the credibility of the complainant or the reliability of the evidence.

14. The complaint evidence led by the prosecution was evidence of complaints made by the complainant concerning the appellant, and was given by a friend of the complainant, and the complainant's aunt, grandmother and mother. The trial judge applied the exception to the hearsay rule provided by s 66 of the Evidence (National Uniform Legislation) Act (NT) (the NT Act). The NT Act is, for present purposes, identical to the Evidence Act. The appellant sought to have the complaint evidence excluded under s 137 of the NT Act on the ground that its probative value was outweighed by the danger of unfair prejudice to him. The trial judge admitted the evidence, and in doing so approached the assessment of its probative value for the purposes of s 137 in the same way as her Honour had for the purposes of s 97, that is, assuming that the jury would accept the evidence and not taking into account factors such as credibility or reliability.

15. An appeal from the appellant's conviction to the Court of Criminal Appeal of the Northern Territory was unsuccessful.

16. In the High Court the appellant argued that the trial judge ought not to have proceeded on the assumption that the jury would accept either the tendency evidence or the complaint evidence. This argument raised for consideration the apparently conflicting approach to this issue adopted in New South Wales (R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228; R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363), and Victoria (Dupas v The Queen [2012] VSCA 328; (2012) 40 VR 182). The New South Wales decisions held that a trial judge, in determining the probative value of evidence, was not required to assess the reliability of the evidence. The Victorian case held, by reference to common law principles governing the exclusion of evidence that applied before the Uniform Evidence Acts were passed, that whilst the trial judge was required to assume that the jury would accept the evidence as truthful he or she was entitled to assess the reliability of the evidence in determining its admissibility.

17. The plurality judgment in the High Court (French CJ, Kiefel, Bell and Keane JJ) addressed the issue whether the trial judge was required (or entitled) to assess the reliability of the evidence for the purpose of determining its admissibility in the following way at [37] - [39]:

The first question, posed by Pt 3.1, is a threshold for all evidence - whether it is relevant. Before that question may be answered, it is necessary to identify the purpose or purposes for which the evidence is tendered. The identification of its purpose may have important consequences, especially in areas such as opinion evidence and tendency evidence.

By s 55, evidence is relevant it if "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding." There can be no doubt that the reference to the effect that the evidence "could" have on proof of a fact is a reference to the capability of the evidence to do so. The reference to its "rational" effect does not invite consideration of its veracity or the weight which might be accorded to it when findings come to be made by the ultimate finder of fact.

The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows form the words "if it were accepted", which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance.

(Footnotes omitted.)

18. The determination whether evidence is relevant required by s 55 does not require an assessment of the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. An assessment of the extent that evidence could affect the assessment of the probability of the existence of a fact in issue is required by s 97, because it requires as a condition of admissibility that the evidence have significant probative value. Similarly, s 137 requires that such an assessment be made, because the section requires a weighing of the probative value of the evidence against its potential prejudicial effect. Although the issue is not directly addressed in IMM, it would be a logical extension of the above to conclude that such an assessment is required by s 101. The plurality in IMM considered whether the requirement to assess the probative value of evidence found in s 97 and s 137 carried with it an obligation upon the trial judge to determine the credibility or reliability of the evidence at [42] - [44]:

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".

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.

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...

(Footnotes omitted.)

It has been explained that the basic enquiry as to whether evidence "could rationally affect [...] the assessment of the probability of the existence of a fact in issue", which appears in both s 55 and the definition of "probative value" of evidence, is not altered by the further enquiry required by the definition as to the extent to which the evidence could have the effect stated. The assessment of extent does not import new and different considerations, such as might affect whether the evidence is accepted as credible or reliable.

(Emphasis as per original.)

At a practical level, it could not be intended that a trial judge undertake an assessment of the actual probative value of the evidence at the point of admissibility. As Simpson J pointed out in R v XY, the evidence will usually be tendered before the full picture can be seen. A determination of the weight to be given to the evidence, such as by reference to its credibility or reliability, will depend not only on its place in the evidence as a whole, but on an assessment of witnesses after examination and cross-examination and after weighing the account of each witness against each other.

Once it is understood that an assumption as to the jury's acceptance of the evidence must be made, it follows that no question as to credibility of the evidence, or the witness giving it, can arise. For the same reason, no question as to the reliability of the evidence can arise. If the jury are to be taken to accept the evidence, they will be taken to accept it completely in proof of the facts stated. There can be no disaggregation of the two - reliability and credibility - as Dupas v The Queen may imply. They are both subsumed in the jury's acceptance of the evidence.

(Footnotes omitted.)

21. Of particular importance to the present proceedings is the approach of the plurality in IMM to the proposition that the possibility of joint concoction of evidence by witnesses may deprive evidence of its probative value. The plurality said, at [59]:

Before turning to the application of ss 97(1) and 137 to the facts in this case, there should be reference to the appellant's submission concerning the risk of joint concoction to the determination of admissibility of coincidence evidence. The premise for the appellant's submission - that it is "well-established" that under the identical test in s 98(1)(b) the possibility of joint concoction may deprive evidence of probative value consistently with the approach to similar fact evidence stated in Hoch v The Queen - should not be accepted. Section 101(2) places a further restriction on the admission of tendency and coincidence evidence. That restriction does not import the "rational view ... inconsistent with the guilt of the accused" test found in Hoch v The Queen. The significance of the risk of joint concoction to the application of the s 101(2) test should be left to an occasion when it is raised in a concrete factual setting.

(Footnotes omitted.)

22. The plurality then considered the extent of the probative value of the tendency evidence in IMM, being evidence that on an occasion different to the one on which the charged acts occurred, the appellant ran his hand up her leg as she massaged his back. The evidence of this incident came only from the complainant. The plurality said at [61] - [63]:

It may be accepted for present purposes that the evidence was relevant as it was capable of showing that the appellant had a sexual interest in the complainant, as the trial judge ruled. This is not put in issue by the appellant. But s 97(1)(b) requires more. It requires that the evidence have significant probative value.

In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant's account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant's unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant's account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant's evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.

Evidence from a complainant adduced to show an accused's sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant's account of the charged offences is true. It is difficult to see that one might reason rationally to conclude that X's account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her.

23. In the present matter, the accused's counsel, while accepting that the decision in IMM was to the effect that "reliability and credit are not relevant matters in terms of gauging the weight of the evidence which is to be adduced as tendency evidence", sought to distinguish the decision in IMM, or at least to confine its effect. Counsel submitted that the decision in IMM left open the possibility that, on occasions, the assessment of the probative value of evidence should be made on the basis of oral evidence given by the witness, rather than based upon written statements made by the witness. Counsel submitted that it should not be assumed that what was contained in the written statements would ultimately be the evidence "which the jury is to be presumed to take at its highest." As I understand his submission, counsel suggested that the decision in IMM did not address the situation where there was a possibility of contamination of the evidence, as opposed to concoction. In support of his application that the complainant's give oral evidence on the application to adduce tendency evidence, counsel referred to the statement of SP in which she said that she had discussed the events forming the basis of the charges against the accused with a number of people from about 1984 onwards. He submitted that there was material suggesting that there had been "ongoing contact" and discussion between the complainants concerning these allegations.

24. Counsel for the accused further submitted that he should be allowed to cross-examine the complainants with a view to determining the extent to which "the story has grown or changed over a period of time." He submitted that cross-examination of the witnesses was necessary "to properly appreciate the potential prejudicial effect" of the evidence, which would be relevant to the assessments required by ss 101 and 137 of the Evidence Act. Counsel submitted that without knowing the extent to which the proposed evidence of the complainants had been "contaminated" by discussions with third parties, this Court would find it difficult to undertake the assessments required by ss 101 and 137.

25. In my opinion, these submissions should not be accepted. To suggest that a witness, or witnesses, have concocted their evidence is to suggest that the evidence is not credible. To suggest that the recollections of a witness or witnesses had been contaminated by exposure to descriptions of alleged events by other complainants or third parties is to suggest that the evidence is not reliable. On the facts in the present case, these are issues that should be left to the jury.

26. The decision of the plurality in IMM leaves open the proposition that unreliability of evidence may be a factor taken into account in determining the prejudicial effect of evidence. In that regards the plurality cited the judgment of Basten JA in R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363 (R v XY). The statements of Basten JA in that regard must be viewed in their context, which was a consideration of whether the New South Wales Court of Criminal Appeal should follow the decision in R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 (Shamouil) in the light of the Victorian decision in Dupas v The Queen [2012] VSCA 328; (2012) 40 VR 182 (Dupas). Basten JA referred to the statement of Spigelman CJ in Shamouil that, "The preponderant body of authority in this Court is in favour of a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account in determining the probative value of evidence for purposes of determining questions of admissibility", before making a number of observations about that statement. After referring to the fact that Shamouil concerned the admission of identification evidence (a category of evidence long recognised as potentially unreliable), Basten JA went on to say at [46] - [48]:

Fifthly, Spigelman CJ did not deny the need to assess the probative value of the evidence, taken at its highest, for the purpose of the "weighing" exercise prescribed by s 137. When discussing unfair prejudice, the Chief Justice referred to the following passage in the judgment of McHugh J in Festa v The Queen [2001] HCA 72; 208 CLR 593:

"[51]...It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. ... It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task."

In Shamouil the Chief Justice then noted:

"[74] [The trial judge] said that 'juries can be seduced by unreliable identification evidence'. It was this which his Honour identified as constituting the 'real danger of unfair prejudice'. In this analysis his Honour makes no reference to the warning about unreliable evidence under s 165. Such a warning must be taken into account before drawing the conclusion that such prejudice as may arise would be 'unfair'."

Two factors are apparent from these passages. First, in carrying out the "weighing" exercise, it would be necessary for the trial judge to consider where the prosecution evidence fell on a scale of probative value ranging from strong to weak. Secondly, the unreliability of the evidence was a factor to be weighed on the other side of the scale, together with the likely effectiveness of warnings about the nature of such unreliability. In effect, Shamouil requires careful attention to the language of the statute and the exercises required to be undertaken: the judgment must be read as a whole. The prosecution is entitled to have its evidence assessed according to its capacity to support the prosecution case, which is not to say that the reliability of the evidence may not be a factor, at least in some cases, in applying the test provided in s 137.

27. It will be immediately observed that Basten JA, in the above passage, refers to the impugned evidence being taken "at its highest" for the purposes of the weighing exercise required by s 137. The same approach would apply to the assessment required by s 101. The requirement that the evidence be taken at its highest does not require a court undertaking the assessment required by ss 137 and 101 to ignore the evident circumstances attending the evidence. As the plurality said in IMM, at [50], "it must also be understood that basis upon a trial judge proceeds, that the jury will accept the evidence taken at its highest, does not distort a finding as to the real probative value of the evidence. The circumstances surrounding the evidence may indicate that its highest level is not very high at all."

28. Shamouil was a case in which the complainant victim initially identified the accused as the person who shot him. This identification was made by reference to photographs about three weeks after he was shot. The complainant subsequently made a statement retracting his identification, a position which he maintained at committal proceedings and in a voir dire. The trial judge, purporting to apply the provisions of s 137 of the Evidence Act 1995 (NSW) (in the same terms as s 137 of the Evidence Act 2011 (ACT)), excluded the evidence of the complainant's identification of the accused as his assailant, on the basis that the probative value of the evidence was outweighed by the danger of unfair prejudice. On an appeal by the Crown, this ruling was overturned. In the leading judgment, Spigelman CJ (with whom Simpson and Adams JJ agreed), after concluding that the trial judge had applied the incorrect test to determining the probative value of the evidence by failing to take the evidence at its highest, considered the approach to be taken to determining what, if any, unfair prejudice may flow from the admission of evidence. In doing so, his Honour quoted with approval the extract from the decision of McHugh J in Festa v The Queen (2001) 208 CLR 593 set out at [26] above. Spigelman CJ rejected a submission that the unfair prejudice of the identification evidence was to be found in the potential for the jury to give the evidence undue weight, given its limited probative value. His Honour said, at [77], "There is no reason to suppose that would be so in view of the warnings that would be given" to the jury about the evidence as required by s 165 of the Evidence Act 1995 (NSW).

29. The factual context of Shamouil is very important. It involved evidence of identification, an area of evidence long regarded by the courts as potentially unreliable. The identification of the accused by the complainant as the assailant was disavowed by the complainant, both in a later written statement and on oath. The New South Wales Court of Criminal Appeal nevertheless determined that the evidence should not have been excluded under s 137, and that the risk of unfair prejudice could be managed at trial by appropriate directions to the jury.

30. The decisions in Shamouil and IMM reinforce the fundamental propositions that questions of credibility and reliability of evidence are for the jury to determine. If the disavowal on oath by the complainant in Shamouil of his identification of the accused was not sufficient to justify a finding that the danger of unfair prejudice to the accused if the evidence was admitted exceeded the probative value of the evidence, it would be a rare case in which cross-examination of a witness on the voir dire would support an application for exclusion of evidence under s 137.

31. Of course, s 101 differs from s 137 in that the former prohibits the admission of evidence unless its probative value substantially outweighs any prejudicial effect it may have on the accused. In my opinion, in weighing the reliability of evidence for the purpose of determining the prejudicial effect that the evidence may have on the accused, I am to take the evidence at its highest, in the sense that this term is used by the plurality in IMM. This is consistent with the decisions of the plurality in IMM and of the New South Wales Court of Criminal Appeal in Shamouil. It would also be anomalous to hold that the reliability of the evidence is a matter for the jury in determining its probative value, but is to be approached differently when determining the question of prejudice in undertaking the weighing exercise required by s 101 and

s 137.

32. Counsel for the appellant sought to identify the prejudicial effect of the proposed evidence as the possibility that the individual complainant's accounts of events may have been contaminated by discussions with other complainants and third parties, and that it would be difficult, if not impossible, to properly test that proposition at trial. In my opinion this submission should be rejected. The legal representatives of the accused will be entitled to cross-examine each of the complainants with a view to establishing that they have discussed the alleged events with others, and in what terms. This is a common occurrence in criminal trials, particularly those in which historic sexual offences are alleged. There is also no reason to suppose that the Crown will not comply with its ethical obligations of providing relevant material to the accused's lawyers, even where it does not support the Crown case. Finally, appropriate directions may be sought from the trial judge to ameliorate any considered prejudice.

33. For those reasons, I decline to permit the accused to cross-examine the complainants on the application to lead tendency evidence.

34. I now turn to the merits of the tendency application itself. Each of the uncharged incidents relies upon the uncorroborated testimony of a single complainant. The Crown submitted that there were "special features" (adopting the words of the plurality in IMM at [62]) which gives their evidence significant probative value. The Crown submitted that there were factual similarities between the complaints made with respect to a number of the incidents which would give the evidence significant probative value. Curiously, the Crown submissions focussed on incidents that are the subject of charges, which is not particularly helpful in determining whether the proposed evidence of uncharged acts has significant probative value.

35. The Crown will not be permitted to lead evidence of the uncharged acts as tendency evidence. The evidence does not possess significant probative value. It is impossible to conceive that the jury would accept a complainant as credible with regards to an uncharged act, but reject the same complainant as not credible with regards to the charged acts. The evidence of the uncharged acts, which depends on the credibility of the complainant, simply adds nothing to the Crown case. The Crown will not be permitted to lead evidence of incidents 3, 4, 5, 6, 7, 8, 10, 11, 13, 15 and 17 as set out in the Notice.

36. Incidents 15 and 17 in the Notice (Counts 10 and 14 respectively) require particular attention. Neither incident alleges that the accused engaged in sexual conduct with respect to the complainant, in each case LT. As I understand it, the Crown will allege that "the other charges in relation to [LT]" make it "significantly more likely" that his intention of taking the complainant into the "cut-out" area was to sexually interfere with her, and that the act of taking her into the "cut-out" with that intention is itself an act of indecency. The process of reasoning involved in the Crown case on these counts would appear to be:

(a) the accused has sexually interfered with LT on other occasions;

(b) it may be inferred from that fact that the accused was sexually attracted to LT; and

(c) it may be inferred from (a) and (b) above that the accused's purpose in doing the acts alleged in Counts 10 and 14 was to sexually interfere with the complainant.

37. In my opinion, even if the jury reasoned in the way required, it is a very dubious proposition that a future intention to sexually interfere with the complainant will be sufficient to support a finding that the acts alleged against the accused were indecent acts.

38. Of more immediate importance is that the reasoning process required in order to convict the accused of those charges involves tendency reasoning, and, as such the Crown ought not be permitted to lead evidence of incidents 15 and 17 as tendency evidence. Before the jury could use those incidents as tendency evidence, they would effectively have to already be satisfied that the accused had a tendency to be sexually attracted to LT, and that he had a tendency to act upon that attraction. The evidence does not have significant probative value, because it does not add significantly to the Crown case.

39. The evidence of the balance of the incidents concerning all of the counts on the indictment except for Counts 10 and 14 are capable of establishing that the accused had, at the relevant time, a tendency to be sexually attracted to young girls and a tendency to attain sexual gratification from young girls. I concentrate on these two alleged tendencies because of the numerous tendencies alleged, they are the only tendencies which the evidence may support. A jury making such findings could use them to infer that the accused committed one or more of the charged offences. The evidence is clearly relevant.

40. In order to meet the test in s 97, it is not sufficient that the evidence has probative value. It must possess significant probative value. In R v Lock (1997) 91 A Crim R 356, Hunt CJ at CL said that "[t]he significance of the probative value of the tendency evidence must depend upon the nature of the fact in issue to which it is relevant and the significance (or importance) which that evidence may have in establishing that fact." In the present case I am unaware of the accused having made any formal admission with respect to any of the charges, so that it must be assumed that everything is in issue, including whether the events alleged by the Crown ever occurred. Evidence that the accused has the tendencies alleged by the Crown could be of considerable importance in the jury determining whether it is satisfied that the accused did the acts alleged.

41. There is always a danger of unfair prejudice to an accused where separate complainants give evidence of alleged sexual offending against the accused in the course of a single trial. The predominate danger is that the jury will misuse the evidence by reasoning that the accused must be guilty if multiple complaints by multiple complainants are tried together. This danger can largely be ameliorated by appropriate judicial directions to the jury. As such, evidence of incidents 1, 2, 9, 12, 14, 16, 18 and 19 meets the test imposed by s 97.

42. The evidence is nonetheless inadmissible unless it meets the test imposed by s 101, its probative value must substantially outweigh any prejudicial effect it may have on the accused. As I have already observed, the potential prejudicial effect of the evidence may be largely ameliorated by appropriate directions to the jury about how they may, and may not, treat the evidence. The evidence is potentially important evidence and, in my opinion, its probative value does substantially outweigh any potential prejudicial effect on the accused.

43. The Crown will be entitled to lead evidence of incidents 1, 2, 9, 12, 14, 16, 18 and 19 to prove that the accused, at the relevant times, had a tendency to be sexually attracted to young girls and a tendency to obtain sexual gratification from young girls.

44. There is one final issue to be addressed. The Crown submits that it should also be entitled to lead evidence of each of the incidents as context/relationship evidence at the accused's trial. This is on the basis that the evidence "gives context to or forms part of the essential background against which the other evidence is to be evaluated", it explains why the complainants did not complain promptly and gives context to each charge which might otherwise appear to have occurred "out of the blue".

45. For the same reasons that I gave when considering the issue of tendency evidence, the Crown will not be entitled to lead evidence of incidents 3, 4, 5, 6, 7, 8, 10, 11 and 13 as context/relationship evidence. Whilst the evidence may have some slight probative value, that value is outweighed by the risk of unfair prejudice to the accused: s 137. The addition of evidence of uncharged acts to the trial, which will involve evidence of multiple complaints by multiple complainants, will increase the risk of unfair prejudice to which I have referred without materially strengthening the Crown case. As there is only one incident involving ST (incident 19, Count 16 on the indictment) it makes no sense to speak of using evidence of that incident as context/relationship evidence. The same may be said with respect to the complainant DN (incident 9, Counts 5 and 6). There are only two incidents concerning the complainant SP in respect of which the Crown will now be entitled to lead evidence. It is alleged that those incidents occurred many years apart, such that the evidence could not be said to provide context or understanding necessary for the jury to evaluate whether the incidents occurred. In my opinion the Crown should not be entitled to use the evidence of incident 1 and 2 as context/relationship evidence.

46. The circumstances regarding the complainant LT are different. Incidents 12, 14, 15, 16, 17 and 18 concern the complainant LT, and allege offences between 1989 and 1999. The jury could well use the evidence of the alleged earlier offences to explain why the complainant did not complain promptly with regard to the later alleged offences. For this limited purpose the Crown will be permitted to use evidence of those incidents as context/relationship evidence.

(a) the accused will not be permitted to cross-examine the complainants on the application to lead tendency evidence;

(b) the Crown will not be permitted to lead evidence of incidents 3, 4, 5, 6, 7, 8, 10, 11, 13, 15 and 17 as set out in the Notice as tendency evidence;

(c) the Crown will be permitted to lead evidence of incidents 1, 2, 9, 12, 14, 16, 18 and 19 (subject to these reasons) as set out in the Notice as evidence that the accused had a tendency to be sexually attracted to young girls and a tendency to obtain sexual gratification from young girls;

(d) the Crown will not be permitted to lead evidence of incidents 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 13 as set out in the Notice as context/relationship evidence; and

(e) the Crown will be permitted to lead evidence of incidents 12, 14, 15, 16, 17 and 18 (subject to these reasons) as set out in the Notice as context/relationship evidence.

48. In the light of the upcoming trial, I also make an order that publication of this decision be prohibited until the completion of the trial.

I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.