(iv) the task that a trial judge undertakes under s97(1) involves a two-step process: firstly, the assessment of the extent to which the evidence in question has the capacity rationally to affect the probability of the existence of a fact in issue; and, secondly, (where the judge concludes that the evidence has that capacity) an assessment and prediction of the probative value that the jury might ascribe to the evidence. The evidence is not to be admitted if the judge concludes that the evidence, either alone or in conjunction with other evidence already adduced or to be adduced, would not have significant probative value, i.e. if the judge concludes that the jury would not regard the evidence as having probative value, and to a significant degree (in the sense explained by Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457). If the determination is that, notwithstanding that the evidence would have probative value, its probative value would not be significant, then the evidence is not admissible.
34 I have not, to this point, said anything about the identification of the "fact in issue", the probability of the existence of which is said to be affected by the evidence under consideration. In some cases precise identification of that fact, or those facts, might be critical to the process. In this case, no attention was paid to that identification. It must be assumed that the fact (or facts) in issue to which the evidence was directed was (or were) whether the appellant had, on each or any occasion, conducted himself as alleged by the complainant.
35 Two things emerge from the above. One is that the s97(1) exercise is predictive and evaluative, and is not a scientific exercise with a clear or rigid answer, or with only one correct answer - reasonable minds will, on occasions, arrive at different results following the evaluative and predictive exercise. The other is that, where evidence "to be adduced" is relevant to the exercise, the exercise must be undertaken on the assumption that that evidence will be given substantially as anticipated.
36 A decision to admit or reject evidence tendered under s97(1) must, obviously, be a decision based upon the information and material available to the judge at the time the decision is made. It is a decision involving "a degree and value judgment" (a phrase drawn from remarks made in the High Court in Fleming v Hutchinson; Conroy v Veit (1991) 66 ALJR 211, when refusing special leave to appeal in an application which otherwise has no bearing upon the present case). Sackville J appears to have taken a similar view in Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51. Such a decision is reviewable on appeal only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499; see also R v Milton [2004] NSWCCA 195 at [33] and Jacara at [75].
37 The ground here raised is that the trial judge "erred in law in admitting the evidence ...".
38 The purpose of this excursion is to identify the material properly available to this court in order to determine the ground as pleaded. That is, in my view, the material upon which the trial judge made his decision. That was, not the evidence subsequently given in the trial, but the documentation that was placed before him for that purpose.
39 In Mickelberg v The Queen [1989] HCA 35; 167 CLR 259, Mason CJ wrote:
"Underlying this uninterrupted stream of authority are two propositions. The first is that an appellate court, in hearing an appeal in the proper sense of the term, is called upon to redress error on the part of the court below. In deciding whether there was error, the appellate court looks to the materials which were before the court below. It is otherwise if, according to the statute governing the jurisdiction of the appellate court, the appeal is by way of rehearing. Then the court of appeal is not restricted to the materials on which the court below gave its decision and may receive additional evidence, including evidence as to matters which have taken place subsequent to that decision."
40 The decision made by the trial judge was made prospectively, on the basis of the statements before him, including the statements of the complainant. Hence, to establish a "wrong decision of [a] question of law" in these circumstances, it would be necessary that the appellant show that the decision to admit the evidence was wrong at the time it was made. Although he did not say so explicitly, it is implicit in the decision that the judge concluded that the evidence of GG in the two paragraphs of his statement that he admitted was capable of rationally affecting the probability of the existence of a fact in issue, and that, in the light of other evidence he anticipated would be adduced (presumably, principally, that of the complainant), he assessed that the jury would ascribe to it significant probative value. In order properly to determine the ground as pleaded, this court really should have access to the actual material that was before the trial judge, and not the evidence that was subsequently given in the trial. If, on that material, it was open to the judge to make the assessment that he did (and no error of the House kind is demonstrated), then this ground of appeal must be rejected.
41 I realise that this analysis might strike alarm into some hearts. It should not. It does not mean, as might at first appear, that the proper (at the time the decision is made) decision to admit tendency (or coincidence) evidence that subsequently turns out to have unanticipated adverse or unfair consequences is beyond review. There remains the ground of appeal set out above, that a miscarriage of justice has occurred. That, no doubt, is the reason for the breadth of the miscarriage of justice ground. It is under this ground that this court is empowered to review the ultimate effect of the admission of evidence as to which no error can be demonstrated in the original determination that it be admitted.
42 An appellant may seek to establish a miscarriage of justice, demonstrable ex post facto, as a result of the admission (or rejection) of evidence, whether or not that decision was correct at the time it was made. The ultimate question is whether a miscarriage of justice has occurred, and that may be tested by reference to the evidence that was actually given and its impact upon the trial. Circumstances might arise that cause a miscarriage of justice even when the anterior decision to admit (or reject) evidence cannot be faulted. By way of example, a judge might correctly decide to admit evidence on the basis of a witness statement; if the witness's evidence as given does not conform to the contents of the statement, injustice may result. It could not, however, be said that the decision to admit the evidence was wrong.
43 In this case, notwithstanding the manner in which the first ground is framed, the focus of the argument, both written and oral, was on showing that a miscarriage of justice resulted from the admission of evidence. I say that because no attention at all was paid, in the argument presented to this court, to the material that was before the trial judge on the voir dire. It was the evidence actually given in the trial that drew the attention of counsel. There are sound tactical reasons for that approach having been taken. It focussed attention upon the very limited evidence that was admitted, and deflected attention from the far more expansive proposed evidence that was rejected. It focussed attention upon divergences and distinctions between the allegations made by the complainant and those made by GG, and deflected attention from the similarities, and the pattern of behaviour asserted.
44 It is also necessary clearly to understand the second ground of appeal. That ground is framed as an attack upon the directions given by the trial judge to the jury. However, properly analysed, the ground is a challenge to the decision to admit the evidence in relation to all charges when, at most, it was (it was contended) available only in relation to Count 4. The basis for that assertion will be seen in due course.
45 The next step in the process involves the application of s101(2). I have previously, in R v Nassif [2004] NSWCCA 443 at [46] - [47], commented upon the curious drafting of s101(2), envisaging, as it does if construed literally, that the evidence is admitted - "evidence ... that is adduced by the prosecution ..." - but imposing restrictions upon the use that may be made of it where its probative value does not substantially outweigh its prejudicial effect.
46 To my mind, s101(2) presents real problems of construction. It has conventionally been treated as an exclusionary rule: see, for example, R v Ellis [2003] NSWCCA 319; 58 NSWLR 700; 144 A Crim R 1. However, in my opinion, there is a real question as to whether s101(2) is indeed a provision about admissibility. It is not so framed. It proceeds upon the basis that the evidence has been adduced. In its terms the subsection is a provision about what use may be made of the evidence once it has been ruled admissible under s97 (or s98) and has been adduced. Support for this view is to be drawn from the circumstance that, as I have suggested earlier, the actual probative value of any evidence is a question for the tribunal of fact - the jury - and at the close of the evidence.
47 But a literal construction of s101(2) would present insuperable problems in a jury trial. How could a jury be asked to assess the prejudicial effect of a particular piece of evidence? The prejudicial effect is ordinarily regarded as the risk that improper use might be made of the evidence. It would be curious indeed if a jury were to be asked to embark upon the exercise of deciding whether the probative value of evidence outweighs its prejudicial effect before hearing the evidence against a defendant. How could a jury be asked to determine whether the probative value of evidence outweighs it prejudicial effect - that is, the risk that the jury might made improper use of the evidence?
48 I can do no more than note the mysteries of s101(2). For present purposes I think I should, notwithstanding my reservations about its terms, continue to treat the section, as have others, and in accordance with authority, as if it were a provision concerning the admission or otherwise of evidence. In those circumstances the fifth step in the s97(1) process (in a criminal case) is the determination of whether, in the opinion of the court, the probative value of the evidence substantially outweighs any prejudicial effect it may have upon the accused. That again involves an assessment and prediction of the use the jury may make of the evidence, against the risk that it may make some improper use of it. This task is also an evaluative one or one involving "a degree and value judgment" and is reviewable on appeal on House principles.
49 In relation to each count on the indictment, the ultimate fact in issue was whether the appellant conducted himself as alleged by the complainant. But they are not the only facts in issue. Just what facts are in issue in any case depends upon the facts and circumstances alleged by the prosecution (including facts and circumstances from which the prosecution would seek to have inferences drawn) and any responses made by the person accused. If evidence tends to elucidate (i.e. rationally affect the assessment of the probability of any such fact), then that evidence has probative value. Any fact upon which the prosecution relies to establish the offence charged is, of course, a fact in issue, even where it is not disputed by the accused. A lay person may well be forgiven for thinking that evidence of a tendency to sexual misconduct with adolescent boys could rationally affect the assessment of the probability that the appellant sexually misconducted himself with the complainant as an adolescent.
50 But this is where caution needs to be exercised. While it may be tempting to think, for example, that evidence of a sexual attraction to male adolescents has probative value in a case where the allegations are, as here, of sexual misconduct with a male adolescent, an examination must be made of the nature of the sexual misconduct alleged and the degree to which it has similarities with the tendency evidence proffered. There will be cases where the similarities are so overwhelming as to amount to what, in pre-Evidence Act days was called "similar fact" evidence, showing "a striking similarity" between the acts alleged; and there will be cases where the similarities are of so little moment as to render the evidence probative of nothing. And there will be cases where reasonable minds may differ as to the extent to which proof of one fact or circumstance may rationally affect the assessment of the probability of the existence of another fact.
51 His Honour's stated reasons for admitting the specific portions of the GG statement were pithy. He noted the arguments advanced by the parties. He correctly directed himself, in accordance with Ellis, that s101(2) involves a balancing exercise, requiring the court to make a judgment rather than to exercise a discretion. He then said:
"In my judgment much of the evidence sought to be led by the Crown as tendency evidence lacks significant probative value and thus does not meet the threshold requirement of s97(1)(b). Other portions of the evidence, although having significant probative value, fail the test presented by s101(2) in that it could not be said that the probative value of the evidence outweighs any prejudicial effect it may have on the accused.
The only evidence which, in my view, has significant probative value, and which passes the test presented by s101(2), is the evidence the Crown expects to be given by [GG] concerning the two incidents referred to by him at paragraphs 36 and 38 of his statement ... I reject Mr Barker's submission that the evidence is different in character and too remote in point of time. That evidence will be admitted as tendency evidence."
52 It is not apparent from this passage that the trial judge fully recognised the manner in which the DPP sought to use the evidence as tendency evidence. Had he done so, it may well be that more of the proffered evidence would have been admitted than ultimately was the case. The DPP was not seeking merely to establish that the appellant had a tendency to engage in acts of intercourse with young male parishioners. He was seeking to establish a pattern of behaviour which was potentially probative of the criminal acts alleged.
53 In written submissions provided to this court counsel for the appellant argued that the evidence of GG was not admissible under s97 because:
"(1) It did not have significant probative value.
(2) The probative value of the evidence did not substantially outweigh the prejudice to the accused.
(3) It was evidence of two acts of one specific sort remote in time and circumstance from any of the acts charged. The only similarity at all was to the single act charged in Count 4. It was too remote in time and circumstance to be admissible as evidence relevant to Count 4. Even if admissible in respect of the act alleged in Count 4, it was irrelevant to all the other counts and its use as tendency evidence should have been restricted to Count 4.
(4) The evidence did not pass the stringent test posed by s101(2) and therefore could not have survived the narrow 'unfair prejudice' test in s135 or s137.
(5) Had the appellant been charged with the two offences alleged by [GG], it is highly likely he would have succeeded in an application to have the [GG] charges tried separately from the [charges concerning the complainant], because evidence of the former would not get in as evidence of the latter.
(6) The effect of the evidence was to permit evidence of irrelevant bad character to taint the jury's deliberations and to deprive the appellant of the real chance of an acquittal on each charge."
54 The challenge to the admission of the evidence is, therefore, effectively an attack upon the decision making process at each step of the sequence involved in a consideration of the admission of evidence under s97. In case it is not already clear, the fundamental premise in the appellant's argument concerns the nature of the sexual activity described by the complainant, and the nature of the sexual activity described by GG in the evidence that was admitted. In GG's case, each alleged act of sexual intercourse involved the performance by the appellant, upon GG, of an act of fellatio. Of the nine charges concerning the appellant's conduct towards the complainant, only one involved the performance of fellatio by the appellant upon the complainant. The other three counts involving fellatio all involved the performance by the complainant upon the appellant of that act. And the remaining charges of sexual intercourse are of anal intercourse performed by the appellant upon the complainant.
55 The second aspect of the argument concerned "the remoteness in time" of the conduct alleged by GG (in 1986 and 1987) from that alleged by the complainant (in 1990 and 1991). Thus, the argument went, the evidence of GG was incapable of establishing any relevant "tendency".
56 As I have indicated above, and notwithstanding the terminology of the grounds of appeal, the argument did not really proceed on the basis of an attempt to establish that the decision at the time it was made was erroneous, but rather, that the admission of the evidence resulted in a miscarriage of justice. Nevertheless, in my opinion it is proper to consider the ground as framed, and, more particularly, to consider the material (including that which was excluded) that was before his Honour. To conform with s6 of the Criminal Appeal Act, and with the principles I have outlined above, this ground must be taken as contending that it was not open to his Honour to reach the conclusion he did - either that it was not open to him to conclude that the evidence had the capacity to have probative value, or that it was not open to him to conclude that the jury would ascribe significant probative value to the evidence. No other error of a House kind was asserted.
57 This, in my opinion, immediately throws up a fallacy in the argument advanced on behalf of the appellant. The argument drew attention to two aspects of the evidence which differentiated the allegations made by the complainant and those made by GG: the nature of the sexual conduct alleged; and the date of its alleged perpetration. But there was a great deal more than that before his Honour. The approach taken on behalf of the appellant is unduly confined, and disguises the true nature of the tendency evidence the DPP sought to adduce. What was contained in the tendency material was capable of establishing a pattern of behaviour on the part of the appellant, incorporating at least the following features. GG was two or three years older than the complainant, and his allegations were of conduct three or four years earlier than that alleged by the complainant: both were therefore young adolescents, twelve, thirteen or fourteen, at the time of the alleged conduct. Both gave accounts of being members of practising Catholic families, who were befriended by the appellant. Both served as altar boys. Both recounted conversations of a sexual nature. Both recounted admonitions by the appellant not to divulge to anybody what had happened. Both recounted assertions made by the appellant that the activity was normal.
58 There were accounts of two incidents, one by GG and one by the complainant, that were, indeed, of marked similarity. These were the act of indecency the subject of the first count, and a virtually identical act alleged by GG (although it was not admitted into evidence). In each case the evidence was that the victim was in the appellant's car when the appellant inquired whether he masturbated, and then began masturbating himself.
59 It is true that in the determination of criminal charges, for policy reasons, the common law steadfastly resisted, except in rare instances, the use of evidence of criminal acts other than the acts the subject of the charges. For example, in Hoch v The Queen [1988] HCA 50; 165 CLR 292, the majority of the High Court held:
"Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force: ... that strength lies in the fact that the evidence reveals 'striking similarities', 'unusual features', 'underlying unity', 'system' or 'pattern' such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution." (pp 294 - 295)
60 While the concluding words of that passage are not entirely apposite to the present issue (being more apposite to a consideration of what is now called coincidence evidence), the substance of the passage is. The strength of the evidence tendered by the prosecution as tendency evidence lay in its capacity to establish the objective probability of the truth of the complainant's account of the appellant's conduct. The evidence of GG was capable of lending support to the allegations made by the complainant by reason of striking similarities, underlying unity, system or pattern. Of course, decisions such as Hoch no longer govern the admissibility of evidence of tendency (see Ellis). But that does not necessarily render cases such as Hoch irrelevant. There is no reason why the reasoning that led the High Court to accept the admissibility of similar fact evidence in appropriate cases before the enactment of the Evidence Act should not guide the reasoning process in the evaluation of whether tendered evidence is capable of having, or would have, significant probative value.
61 The trial judge did not in any detail expose the reasoning that led to his ultimate decision. However, it is plain enough that he was well aware of the nature of the steps he was to take, and the tests he was to apply. I am unable to see that he made any error of the House kind in reaching his decision. I am sustained in that view because, it seems to me, he was entirely correct in permitting GG's evidence to go to the jury. If any error were made, it may have been in the exclusion of additional evidence that another judge may have admitted. There is, of course, no occasion for this court to review the decision to the extent that it excluded evidence. But that does not mean, in assessing the correctness of the decision at the time it was made, that the court cannot have regard to that material. It is appropriate to do so.
62 Two prior decisions of this court may be noted. In R v Harker [2004] NSWCCA 427, unreported, 2 December 2004, this court had before it an appeal brought by the Crown pursuant to s5F(3A) of the Criminal Appeal Act concerning a ruling made in the District Court in respect of evidence the prosecution proposed to tender under s97(1) of the Act, refusing to admit the evidence. The respondent to that appeal was charged with a number of counts of sexual assault against a child. The complainant alleged that the respondent had shown him pornographic videos and given him drugs. The prosecution proposed to tender evidence of a friend of the complainant and of the respondent to the effect that the respondent had behaved towards him in a similar fashion to that alleged by the complainant in those proceedings, and had given him alcohol and drugs. Howie J, with whom Santow JA and Bell J agreed, wrote:
"51 The Crown argues that the probative value of the evidence of [the witness] transcends the mere fact that the respondent was having a sexual relationship with another young man at about the time he was in a sexual relationship with the complainant. The Crown relies upon what it says are a number of similarities between the accounts given by the complainant and [the witness] in the way the respondent acted towards them and that this similarity in conduct shows that the respondent had the tendency to act in a particular way to young boys at the time the complainant alleges that he was sexually assaulted by him. It is unnecessary to set out in detail the allegations made by [the witness] that are similar to those made by the complainant, but in my view, when considered as a whole, there is sufficient similarity between the accounts of [the witness] and the complainant for the evidence of [the witness] to satisfy the test of admissibility under s97(2)(b).
52 Clearly the simple fact, if it were the fact, that the respondent was indecently assaulting [the witness] or engaging in homosexual intercourse with him would not be admissible as proof that he was engaged in similar conduct with the complainant ..."
63 Howie J referred to R v Milton [2004] NSWCCA 195, unreported, 18 June 2004. There the appellant had been tried on an indictment alleging a number of sexual offences involving two complainants. The principal issue raised on the appeal was whether there should have been a separate trial on the allegations involving each complainant. However, that issue was to be determined by whether or not evidence concerning one complainant would have been admissible as tendency evidence in the trial of the other complainant. If it were, there would have been no utility in ordering separate trials. In refusing separate trials, the first instance judge identified a series of common assertions made in relation to each set of offences. These involved the age of the complainants, that both of them had worked for the appellant, and that the appellant had made alcohol and drugs available to them at his home.
64 Hidden J, with whom Tobias JA and Greg James J agreed, wrote:
"31 The detail of the sexual activity alleged by each of the complainants and the circumstances surrounding it is not to the point. True it is that evidence that the appellant had sexual contact with two boys in their early teens would not, of itself, be sufficient. However, that is not the only common thread in their evidence. What emerges from the testimony of each of them is an attempt by the appellant to foster a relationship with them conducive to sexual contact despite their youth and immaturity. This arises not just from his employing each of them. It is to be found in his encouraging them to drink and use drugs in a manner entirely inappropriate for boys of their age, and in his efforts, by word and deed, to loosen their natural sexual inhibitions. It is also to be noted that, on the account of both complainants, he was prepared to impose his will upon them in the teeth of their resistance."
65 His Honour went on to observe:
"33 Whether evidence tendered as tendency evidence passes the test imposed by s101 of the Evidence Act is very much a matter of judgment in the particular case. No doubt, in many cases, including the present, it is a question about which reasonable minds might differ. However, what the appellant must show is that it was not open to his Honour to have found that that test was satisfied. I am not so persuaded and, accordingly, I would dismiss these two grounds of appeal."
66 The court in Harker did not rule that the evidence there tendered was admissible. That was because the appeal was an interlocutory one arising from the rejection of evidence tendered by the Crown, said to be as a result of error in the process of determining the various questions involved. Agreeing with Hidden J in Milton that, in the circumstances of the case, these questions were questions on which reasonable minds might differ, and that a future trial judge might be asked to make the determinations on the basis of non-identical evidence, the court merely set aside the decision of the judge, and returned the proceedings to the District Court for further hearing. However, it is apparent that the court accepted that the argument put forward by the Crown concerning the significance and relevance of similarities in the account given by the complainant and the witness, and that, where those similarities are sufficient, they may amount to a proper basis for satisfying the s97(1) test.
67 In my opinion, the present appellant's argument focused too narrowly upon a tendency to have sexual intercourse in a particular fashion. The DPP's explanation, provided to the appellant's legal advisors, shows that the "tendency" which it sought to establish was wider, and more detailed. The DPP sought to establish a pattern of behaviour, or even a modus operandi, in the appellant's behaviour. This included the use of his position as parish priest in meeting Catholic families and involving himself in their lives, developing a special relationship with the families, the children of the families, and in particular with a child the focus of his attention; and the introduction of the child to sexually explicit material and, eventually, inappropriate sexual behaviour.
68 I have come to the view that it was open to his Honour to conclude that the evidence was capable of having probative value and that a jury would perceive it as having significant probative value. GG was, at the time of the offences against him, about the same age as the complainant was at the time of the offences alleged to have been committed against him. Notwithstanding some slight variation in the manner in which the appellant was said to have secured the acts of intercourse, there was sufficient similarity between the two sets of allegations as to make the GG allegations potentially probative of the complainant's allegations. The surrounding circumstances, of the appellant's friendship with the families, and the role of the complainant and GG as altar boys, were capable, in my opinion, of fleshing out and confirming the prosecution case against the appellant in respect of those acts with which he was charged. I find no error in the (implicit) conclusion that the jury would ascribe to the evidence significant probative value.
69 Equally plainly, however, the evidence had a significant prejudicial effect. The question which arises under s101(2) (as it has been construed) is whether the probative value of the evidence substantially outweighed the prejudice to the appellant. If, in his Honour's view, it did not, then pursuant to s101(2) (on the conventional construction), he was obliged to reject it. That exercise, as I have indicated above, involved the judge putting himself, so far as he could, in the shoes of the jury, and predicting what use they would make of it.
70 If the evidence had been limited to the bald assertions of sexual intercourse contained in the two paragraphs which his Honour specifically mentioned, then it may be that the probative value did not substantially outweigh its prejudicial effect. However, the circumstances that allowed the evidence to pass the s97(1) test were also material in this evaluation. The evidence given by GG concerning the appellant's relationship with GG's family, and his involvement in the church, parallelling evidence concerning the relationship of the appellant with the complainant and his family, also affected the probative value of the evidence relative to its prejudicial effect. Of course, the prejudicial effect was significant, but it was, in my opinion, open to the judge to conclude that the prejudicial effect was substantially outweighed by the probative value. There was thus no error of law in the decision to admit the evidence.
71 It is then appropriate to consider whether, as the trial proceeded and concluded, the decision to admit the evidence gave rise to a miscarriage of justice. I have already signalled my view that another judge may have taken a more robust approach to the s97(1) determination, and admitted more of the evidence tendered by the DPP. It is conceivable that the admission only of a limited portion of the evidence tendered might have a skewing effect, giving rise to a miscarriage of justice as a result of the omission or exclusion of other portions. That is not this case. Firstly, the appellant was at the trial represented by the same highly experienced senior counsel who appeared on the appeal. Had he perceived any potential adverse impact or injustice to the appellant by reason of the selective admission of evidence, it was open to him to, and he undoubtedly would, have sought the admission of any ameliorating evidence. Secondly, no proposition was put on appeal that the limited nature of the evidence admitted under s97(1) adversely affected the fairness of the trial, or jeopardised the appellant's chance of an acquittal. Thirdly, I have scrutinised the material put before this court, and can see nothing in the rejected tendency material that could have enhanced the appellant's position. I am therefore not persuaded that any miscarriage of justice arose as a result of the admission of GG's evidence.
72 I am therefore satisfied that the appeal ought not be allowed on the ground of the wrong decision of a question of law. Nor should it be allowed on the basis that the admission of the evidence gave rise to any miscarriage of justice.