R v Lam [2014] ACTSC 49

Supreme Court of the ACT|2014-03-25

[2014] ACTSC 49 (25 March 2014)

CRIMINAL LAW - EVIDENCE - Judicial Discretion to admit or exclude evidence - Tendency evidence - Discussion of principles of tendency evidence - Evidence of each count of the indictment is cross-admissible as tendency evidence in each other count on the indictment - Certain incidents admitted as tendency evidence - Certain incidents excluded as tendency evidence but admitted as context evidence.

Stephen Odgers, Uniform Evidence Law (10th ed, 2012, Lawbook Co: Sydney) 501-4

Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485

AW v The Queen [2009] NSWCCA 1

BP v The Queen [2010] NSWCCA 303

CGL v Director of Public Prosecutions [2010] VSCA 26; (2010) 24 VR 486

DSJ v The Queen [2012] NSWCCA 9

ES v The Queen (No 1) [2010] NSWCCA 197

JLS v The Queen (2010) 28 VR 328

MM v The Queen [2012] ACTCA 44

Murdoch (A Pseudonym) v The Queen [2013] VSCA 272

Papakosmos v The Queen [1999] HCA 37; (1999) 196 CLR 297

Qualtieri v The Queen [2006] NSWCCA 95; (2006) 171 A Crim R 463

Reeves (Pseudonym) v The Queen [2013] VSCA 311

RHB v The Queen [2011] VSCA 295

R v Fitzpatrick [2012] ACTSC 107

Semaan v The Queen [2013] VSCA 134

The Queen v Harker [2004] NSWCCA 427

The Queen v Pazmino [2010] ACTSC 148

1. The evidence of each count in the indictment is cross-admissible as tendency evidence in respect of each other count on the indictment.

2. The Crown may adduce as tendency evidence the evidence of the incidents in the Table attached to the Further Prosecution Submissions on the Application to Adduce Tendency Evidence dated 31 October 2013 numbered 15, 17, 19, 20 and 21.

3. The Crown may not adduce evidence of the incidents in the Table referred to in Order 2 numbered 18.

4. The Crown may adduce as context or relationship evidence the evidence of the incidents in the Table referred to in Order 2 numbered 22 and 23.

1. It appears that, in or about 2011, the accused, Leonard Theodore Lam, began a relationship with a woman who had two daughters. He moved in to live with her for a little over a year, between August 2011 and September 2012.

2. It is alleged that, during this time, Mr Lam committed various sexual acts with or in the presence of the complainant, the woman's younger daughter, who was born in November 2001.

3. One incident involved an allegation that Mr Lam showed the complainant pornographic material on a computer. During the alleged incident, the complainant's mother is said to have walked in while the pornographic material was being shown. She is said to have taken the complainant out of the room and asked whether she was being shown "porn"; the complainant said "Yes". The complainant is said to have then disclosed other incidents.

4. As a result, police were contacted and later interviewed the complainant. The interview was recorded for use under Div 4.2A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) as her evidence in chief in proceedings against Mr Lam for the sexual offences.

5. As a result of what the complainant said in the interview, Mr Lam was arrested and charged. He was committed for trial to this Court on 30 January 2013.

6. An indictment was presented on 17 April 2013 and it contained the following counts:

FIRST THAT between 31 August 2011 and 1 October 2011 at

COUNT Canberra in the Australian Capital Territory LEONARD THEODORE LAM committed an act of indecency in the presence of [the complainant], being a person under the age of 16 years.

SECOND AND FURTHER THAT between the 31 August 2011 and

COUNT 1 October 2011 at Canberra aforesaid LEONARD THEODORE LAM committed an act of indecency in the presence of [the complainant], being a person under the age of 16 years.

COUNT 1 October 2012 at Canberra aforesaid LEONARD THEODORE LAM committed an act of indecency in the presence of [the complainant], being a person under the age of 16 years.

FOURTH AND FURTHER THAT between the 31 August 2011 and

COUNT 1 October 2012 at Canberra aforesaid LEONARD THEODORE LAM committed an act of indecency upon [the complainant], being a person under the age of 16 years.

COUNT 5 March 2012 at Canberra aforesaid LEONARD THEODORE LAM committed an act of indecency in the presence of [the complainant], being a person under the age of 16 years.

SIXTH AND FURTHER THAT between the 31 August 2011 and

COUNT 5 March 2012 at Canberra aforesaid LEONARD THEODORE LAM attempted to engage in sexual intercourse with [the complainant], being a person under the age of 16 years.

COUNT between 31 August 2011 and 5 March 2012 at Canberra aforesaid LEONARD THEODORE LAM committed an act of indecency upon [the complainant], being a person under the age of 16 years.

EIGHTH AND FURTHER THAT between the 31 August 2011 and

COUNT 12 August 2012 at Canberra aforesaid LEONARD THEODORE LAM committed an act of indecency upon [the complainant], being a person under the age of 16 years.

NINTH AND FURTHER THAT between the 31 August 2011 and

COUNT 12 August 2012 at Canberra aforesaid LEONARD THEODORE LAM committed an act of indecency upon [the complainant], being a person under the age of 16 years.

TENTH AND FURTHER THAT between 31 December 2011 and

COUNT 12 August 2012 at Canberra aforesaid LEONARD THEODORE LAM committed an act of indecency upon [the complainant], being a person under the age of 16 years.

ELEVENTH AND FURTHER THAT between the 31 August 2011 and

COUNT 12 August 2012 at Canberra aforesaid LEONARD THEODORE LAM attempted to engage in sexual intercourse with [the complainant], being a person under the age of 16 years.

TWELFTH AND IN THE ALTERNATIVE TO COUNT ELEVEN THAT

COUNT between 31 August 2011 and 12 August 2012 at Canberra aforesaid LEONARD THEODORE LAM committed an act of indecency upon [the complainant], being a person under the age of 16 years.

THIRTEENTH AND FURTHER THAT between the 31 August 2011 and

COUNT 12 August 2012 at Canberra aforesaid LEONARD THEODORE LAM engaged in sexual intercourse with [the complainant], being a person under the age of 16 years.

FOURTEENTH AND FURTHER THAT on about 28 July 2012 at Canberra

COUNT aforesaid LEONARD THEODORE LAM committed an act of indecency in the presence of [the complainant], being a person under the age of 16 years.

FIFTEENTH AND FURTHER THAT on about 28 July 2012 at Canberra

COUNT aforesaid LEONARD THEODORE LAM committed an act of indecency in the presence of [the complainant], being a person under the age of 16 years.

SIXTEENTH AND FURTHER THAT 11 August 2012 at Canberra

COUNT aforesaid LEONARD THEODORE LAM committed an act of indecency in the presence of [the complainant], being a person under the age of 16 years.

7. The Crown has now applied for leave to adduce certain evidence as tendency evidence in accordance with a Notice to Adduce Tendency Evidence dated 29 April 2013.

8. I heard the application on 7 November 2013. Because of the imminence of what was anticipated to be the trial, I made my decision, which was announced on 12 December 2013, permitting certain of the evidence to be adduced but deciding that certain of the other evidence that the Crown had sought to be adduced was inadmissible as tendency evidence. I indicated that I would give my reasons later.

10. Tendency evidence is regulated by s 97 of the Evidence Act 2011 (ACT) in the following terms:

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2) Subsection (1)(a) does not apply if:

(a) the evidence is adduced in accordance with any directions made by the court under section 100 (Court may dispense with notice requirements); or

(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

11. Thus, s 97 provides a threshold for the admissibility of certain evidence, if it is to be used for a tendency purpose, such that it is not enough for it simply to have probative value; the probative value must be significant.

12. I note that the evidence may nevertheless be admissible under s 55 of the Evidence Act and used for other purposes. There are obvious difficulties where that happens, for the court must be sure that its use as tendency evidence is not relied on where permission has not been granted. The directions to a jury in that event may be a challenge to the trial judge. Indeed, it may be so difficult to craft appropriate directions, especially directions that are not confusing or incomprehensible to a jury as to require such evidence to be excluded under s 137 of the Evidence Act. I do not, however, have to address that issue in this application.

13. "Probative Value" is defined in the Dictionary of the Evidence Act to mean

the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

14. This definition is closely related to the test of relevance set out in s 55 of the Evidence Act.

15. As Gaudron J pointed out in Adam v The Queen (2001) 207 CLR 96 at 115; [60],

[a]s a practical matter, evidence can rationally affect the assessment of the probability of a fact in issue only if it is accepted. Accordingly, the assumption that it will be accepted must be read into the dictionary definition.

16. The critical words in the definition are "could rationally affect". Spigelman CJ explained in R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 at 237; [61], that the use of the word "could" means that the focus is on the capability of the evidence to have the relevant effect That is to say, it draws attention to what it is open for the judge of the facts (jury, judge in a judge alone trial, or magistrate) to conclude rather than what the judge of the facts is likely to conclude. This approach was expressly followed by the Victorian Court of Appeal in KRI v The Queen [2011] VSCA 127; (2011) 207 A Crim R 552.

17. Whether the evidence has probative value depends also on how the subject evidence fits within the case. The section itself refers in s 97(1)(b) to whether the evidence will have significant probative value "having regard to other evidence adduced or to be adduced", that is to the other, perhaps all the, evidence in the case. See L v Tasmania [2006] TASSC 59; (2006) 15 Tas R 381 at 397; [40]. In R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 at 316; [33] (ii), Simpson J pointed out that strictly "it is not ordinarily possible finally to determine the actual probative value of any piece of evidence until the evidence in the case is complete". This requires the court to have regard to all the evidence and, in some cases, to deal with the application during the trial when the evidence to be adduced is clearer, especially in its context with the other evidence, rather than, as so often now occurs, as a pre-trial application.

18. In New South Wales, the requirement that the evidence have significant probative value has been the subject of consideration in a number of cases. In R v AH (1997) 42 NSWLR 702 at 709, Ireland J, with whom Hunt CJ at CL and Levine J agreed, said

Section 97 requires the Crown to establish that the evidence has significant probative value. That means that its degree of relevance to the events giving rise to the offence charged is important or of consequence: R v Lockyer (1996) 89 A Crim R 457 at 459; R v Lock (1997) 91 A Crim R 356.

19. That approach has since been followed in New South Wales. See, for example, R v Zhang [2005] NSWCCA 437; (2005) 158 A Crim R 504 at 515; [40].

20. Although there was adoption of that approach in Victoria, in JLS v The Queen (2010) 28 VR 328 at 333; [18], more recently a somewhat different approach by some judges has been suggested as to the meaning of significant.

21. Thus, in Semaan v The Queen [2013] VSCA 134 at [36]- [38], Priest JA said

... No definition or explicit guidance is provided in the Act, however, as to the meaning of the adjective significant, but it is plain that it must have some work to do. Hence according to ordinary canons of construction, significant falls to be interpreted according to its ordinary usage.

There have been judicial attempts to ascribe a meaning to significant for the purposes of s 97. Thus, Hunt CJ at CL in Lockyer and in Lock expressed the view that one of the primary meanings of 'significant' is 'important' or 'of consequence'. His Honour also expressed the opinion, drawing on implications of the rejection of certain recommendations of the Australian Law Reform Commission, that 'significant' probative value must mean something more than mere relevance but something less than a 'substantial' degree of relevance.

In my opinion, attempts at reformulation of the statutory language are unlikely to be productive of much in the way of enlightenment; but to my mind (and with respect to those views which coincide with that of Hunt CJ at CL) in context 'significant' must bear a meaning closer to 'substantial' than to 'important' or 'of consequence' which, as synonyms, to me do not adequately convey the import of 'significant'. Three observations may, however, safely be made. First, s 97 is designed to impose a high (or, at least, higher) threshold of admissibility than for evidence which has 'mere' probative value. Secondly, the adjective 'significant' is directed to the quality of the evidence, rather than to its quantity. Thirdly, it is plain that the court is required to make an assessment of the quality of the evidence, since it is only if the court 'thinks that the evidence will ... have significant probative value' that it may be admitted. In every case this will be a matter of fact and degree, and will be influenced by the nature of the fact in issue sought to be proved (or disproved).

(footnotes omitted)

22. His Honour repeated those comments in Murdoch (A Pseudonym) v The Queen [2013] VSCA 272 at [79]. In that decision, however, Redlich and Coghlan JJA observed (at [12]):

Where offences of sexual abuse are alleged, evidence of the sexual relationship of an accused to the complainant has long been admitted into evidence. Such evidence may be admitted for different purposes. It may be adduced only as evidence of the context in which the charged offences occurred or as evidencing a sexual interest in the complainant. It may take the form of uncharged acts providing evidence of a guilty passion or a sexual interest in the complainant on which the accused was willing to act. Principles have been developed concerning the admission of such evidence, the use to which it may be put and the standard of proof of such matters. Whatever attraction one may have to aspects of the reasons of Priest JA concerning context and relationship evidence and the way in which it has to date been treated, to depart from previous decisions of this court or from the line of authority of the NSW Court of Appeal to which his Honour refers on matters concerning the Evidence Act [1995 (NSW)] or its application to those particular types of evidence, would require a court constituted by five judges to be satisfied that such previous authority was plainly wrong and ought not to be followed.

23. Accordingly, I consider that a single judge of this Court would ordinarily be bound to construe "significant" in the context of "significant probative value" as meaning "important" or "of consequence", particularly in the light of the Uniform Evidence Act regime to which both the Evidence Act and the Evidence Act 2008 (Vic) belong. See Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 492.

24. Clearly the probative value will also depend on the identification of the particular tendency that is alleged to be proved by the evidence. It is required, at least in this jurisdiction, that the applicant (usually the Crown), who wishes to adduce the tendency evidence, must articulate, in precise terms, the tendency which the evidence is said to prove.

25. As the Victorian Court of Appeal pointed out in CGL v Director of Public Prosecutions [2010] VSCA 26; (2010) 24 VR 486 at 496-7; [36]- [40]:

... Tendency evidence of this kind can, of course, be highly potent. Proof of a person's tendency to commit acts of a particular kind, or to be sexually attracted to a person of a particular age or gender, can have significant probative value in relation to allegations that the person committed an act of that kind, or sexually assaulted a person of that age and gender, at the time(s) and place(s) alleged. It can also be highly prejudicial.
... The second notice, for example, was expressed very generally. It identified, as the tendencies sought to be proved, the tendency of the applicant 'to act upon his sexual attraction to young girls aged between eight and 13 years' and his tendency to have 'a sexual attraction to young girls aged between eight and 13 years' ...
Unlike s 98(1), s 97(1) does not identify the basis on which evidence becomes admissible to prove a relevant tendency. In the present case, as the prosecutor acknowledged early in her submissions on the leave application, the basis of admissibility advanced was essentially the same as in the case of the coincidence evidence. That is, the prosecution relied on the same identified similarities between the various allegations in order to prove that the accused had the relevant tendency. (This accords with the experience in other jurisdictions where these provisions have been in force for some years.)
Just as the lack of relevant similarity rendered the coincidence evidence inadmissible, so too with the tendency evidence - and for the same reasons. Absent relevant similarities, the evidence would be - as senior counsel for the applicant put it - 'pure propensity evidence'.
Part of the difficulty lies, once again, with the degree of generality in the notices. When s 97(1) speaks of a tendency 'to act in a particular way', we hardly think that Parliament had in mind a tendency which would be expressed as generally as 'a tendency to act upon sexual attraction to young girls aged between eight and 13 years'.
As a general rule, the greater the degree of specificity with which the similarities can be identified, the more likely it is that the evidence will be probative of a tendency to act in a distinctive way or to do acts of a distinctive kind. Conversely, the greater the degree of generality, the more difficult it will be to demonstrate that the evidence in question has 'significant' probative value and - even more so - to demonstrate that its probative value 'substantially outweighs' the very real prejudicial effect of evidence of this kind.

26. This echoes the following comment of Campbell JA in R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at 468; [53]:

It has previously been observed that the generality with which a tendency is stated may be such that it provides a handicap to that evidence having 'significant probative value': Townsend v Townsend [2001] NSWCA 1346 at [78] per Giles JA (with whom Hodgson JA agreed); Ibrahim v Pham [2007] NSWCA 215 at [264] per Campbell JA (with whom Hodgson and Santow JJA agreed).

27. It is, however, clear that there is no requirement for "distinctive" conduct nor, in relation to tendency evidence, as opposed to coincidence evidence, is it necessary for the evidence to be based on similarities, as pointed out by Beazley JA, with whom Buddin J and Barr AJ agreed, in R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75 at 91; [79]. Nevertheless, the closer and more particular the similarities between the tendency evidence and the evidence of the offences, the more likely it is that the evidence will have significant probative value: BP v The Queen [2010] NSWCCA 303 at [108].

Further restrictions on the admission of tendency evidence

28. Notwithstanding that the evidence sought to be admitted as tendency evidence is of significant probative value, it may also be excluded if its probative value is outweighed by its prejudicial effect. This is the effect of s 101 of the Evidence Act which is in the following terms:

(1) This section only applies in a criminal proceeding and so applies in addition to section 97 (The tendency rule) and section 98 (The coincidence rule).

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

29. As the tendency evidence will clearly be of matters that are supportive of the case for the Crown that the offences have been committed, they may well have the effect that an accused is more likely to be convicted.

30. As Campbell JA, with whom Howie and Rothman JJ agreed, noted in R v Ford at 469; [55]-[56], this is not what is meant in the section. See also what McHugh J said in Papakosmos v The Queen [1999] HCA 37; (1999) 196 CLR 297 at 325; [91]- [92].

31. The meaning of that phrase "unfair prejudice" in this section is to be interpreted in the same way as the reference in s 137 of the Evidence Act to unfair prejudice, namely that there is a real risk that the jury (or other judge of the facts) will misuse the evidence in some unfair way: R v BD (1997) 94 A Crim R 131 at 139.

32. Thus, the court must consider whether, in the words of Wood CJ at CL, with whom Sully and Howie JJ agreed, in R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 at 199; [116], the evidence may do "damage to the defence case in some unacceptable way, for example by provoking some irrational, emotional or illogical response, or by giving the evidence more weight that it truly deserves".

33. It is irrelevant, however, whether the tendency evidence alleges conduct by the accused for which he or she has never been charged, stood trial or of which he or she has never been convicted: The Queen v Harker [2004] NSWCCA 427.

34. The quantity of the material may, however, be so overwhelming that it is, by virtue of that consideration, unfairly prejudicial, as held by Miles CJ in R v Teys [2001] ACTSC 29; (2001) 119 A Crim R 398 at 412; [69]- [70].

35. The court is involved in a careful predictive and evaluative exercise to determine the application.

36. In R v Fletcher at 316; [33], Simpson J, with whom McClellan CJ at CL agreed, described the exercise as follows

(iv) the task that a trial judge undertakes under s 97(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, ie 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.

37. Her Honour went on (at 316-7; [34]) to point out that it will be necessary, often "critical", to identify the facts in issue against which the probative value of the evidence is to be assessed. As Latham J, with whom Bell JA and Fullerton J agreed, said in AW v The Queen [2009] NSWCCA 1 at [47]

The evidence must have significant probative value, that is, it must be evidence that is meaningful in the context of the issues at trial. The provision is concerned with the qualitative aspects of the evidence, not quantitative ones. The extent to which such evidence is objectively proved, as in MM, has less to do with s 97(1) than it has to do with s 101(2). It must be more than merely relevant, but may be less than substantially so: R v Lockyer (1996) 89 A Crim R 457. The question for the trial judge was whether the evidence was important in establishing the facts in issue, namely whether the appellant committed the charged sexual offences against the complainant.

38. Further, I note that, as Higgins CJ observed in The Queen v Pazmino [2010] ACTSC 148 at [86], after a careful examination of the authorities, "[i]t is important, as these cases illustrate, to identify the use to which and the issue to which the proposed evidence would go."

39. There was, in this case, no issue as to the giving or adequacy of notice, though, regrettably, the original notice given by the Crown was quite inaccurate in a number of respects and had to be amended quite significantly. Mr Lam, through his counsel, disavowed any prejudice.

40. I summarise the effect of the relevant provisions of the Evidence Act and the consideration of them by the authorities as follows:

• Evidence that the accused had a tendency to act in a particular way, or to have a particular state of mind, can be admissible to prove that he had that tendency, but only if the Court thinks that that evidence will have "significant probative value": s 97(1)(b).

• An application to the court to permit such evidence to be led should carefully articulate the tendency that the evidence is said to prove.

• In approaching an application for permission to adduce tendency evidence the court must assess the extent to which the evidence has the capacity rationally to affect the probability of the fact in issue and then to assess and predict the probative value that the jury might ascribe to the evidence.

• Accordingly, it is important to identify the use to which the proposed evidence is to be put and the issue which it addresses.

• In assessing the probative value of the evidence, it must be assumed that the evidence will be accepted, and that any inference open to the jury and favourable to the Crown will be drawn.

• It must also be assessed having regard to all the evidence in the case.

• Tendency evidence has "significant probative value" if it has more than "mere relevance", or if it is "important" or "of consequence", though it need not have a "substantial" degree of relevance.

• As a general rule, the greater the degree of specificity with which similarities of the evidence can be identified, the more likely is the evidence to be probative of a tendency to act in a distinctive way or to do acts of a distinctive kind.

• Nevertheless, admissible tendency evidence is not necessarily based on similarities and there is no requirement for the relevant conduct to be distinctive.

• Tendency evidence and coincidence evidence may not be used "unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant": s 101(2).

• "The possibility of prejudicial effect with which s 101 is concerned is the possibility that the jury will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue, for example by giving effect to 'some irrational, emotional or illogical response' or 'giving the evidence more weight than it truly deserves'''.

• There may be discretionary reasons for excluding or limiting the evidence such as where it is overwhelming or otherwise under ss 135, 136 or 137 of the Evidence Act.

41. In this context, then, I turn to the facts in the case.

42. In this jurisdiction, the Court has the advantage of a requirement, under r 4733(c)(i), that the Crown prepare a Case Statement which is "used frequently ... to provide a basis for a pre-trial application such as ... on admissibility of evidence": R v Goodwin [2009] ACTSC 111; (2009) 233 FLR 473 at 479; [31].

43. In this case, the Crown case may be summarised as follows. Mr Lam began dating the complainant's mother in about August 2011 and soon after moved into her home, where she lived with the complainant and the complainant's sister.

44. The Crown alleges that Mr Lam showed the complainant various pornographic videos from time to time and discussed sexual activities with her.

45. The first count alleges that, while Mr Lam and the complainant were, by themselves, watching a video in which a man said to a woman "You're going to make me come", the complainant asked what that meant and Mr Lam exposed his genitals and described ejaculation to her.

46. The second count is an allegation of Mr Lam showing the complainant a pornographic video while the complainant's mother was asleep. When it showed penile/vaginal intercourse, Mr Lam said that he would like to do that to the complainant.

47. The third count again asserted that Mr Lam was watching videos with the complainant. On this occasion, her mother and sister had gone out. Mr Lam asked the complainant whether she liked penises and whether she would like to be naked in front of him. He also asked her about having a "sensual" massage where they would be naked and could "have fun as well".

48. The fourth count involved an allegation that the complainant, when her mother was out, came into the master bedroom to find Mr Lam naked and, as they watched pornographic videos, he touched her breast and vagina over her pyjamas.

49. The fifth count alleged that when the complainant's mother was out, Mr Lam followed the complainant into the shower room after she had got into the shower and took his clothes off.

50. The sixth and seventh counts (the latter in the alternative) were allegations that when the complainant and Mr Lam were the only persons at home, the complainant, having hurt her back, was offered a massage by Mr Lam which she declined. When he said it was not to be a "sensual massage", but he just wished to check that her back was not injured, she lay on the bed and Mr Lam massaged her over her clothes, but then took out his penis and put it inside her shorts, pressing it against her vagina.

51. The eighth count alleged that, on a further occasion, the complainant went into the master bedroom to find Mr Lam naked and masturbating. He asked her to sit down and took her hand, putting it on his penis, though she pulled it away. He continued to masturbate to ejaculation.

52. The ninth count was an allegation that Mr Lam woke the complainant one morning by trying to massage her, including by squeezing her buttocks. When she awoke, Mr Lam smiled at her but she told him to get out.

53. The tenth count alleged that, when the complainant's mother was out of the house, Mr Lam and the complainant were lying on the bed in the master bedroom when Mr Lam put his hand inside the complainant's pyjamas and tried to touch her pubic area.

54. The eleventh and twelfth counts (the latter in the alternative) alleged that on another occasion, the complainant and Mr Lam were again lying on the bed in the master bedroom when Mr Lam spat on the finger and put his hand inside her shorts, trying to put his finger in her vagina.

55. The thirteenth count alleged that, as the complainant walked through the master bedroom, Mr Lam told her to pull her pants down and, when she refused, he did it himself and licked her vaginal area.

56. The fourteenth count alleged that Mr Lam took the complainant to an adult sex shop and purchased a vibrator, which he gave her, telling her that she should "put it inside [her] instead of having a penis and it vibrates and sometimes makes girls juice out".

57. The fifteenth count alleged that later that night, Mr Lam put the vibrator on top of his penis in front of the complainant.

58. Finally, the sixteenth count alleged that while the complainant's mother was asleep, Mr Lam showed the complainant a pornographic video, despite her saying she did not wish to see it.

59. It was on this occasion that the complainant's mother walked into the room while the video was being shown and resulted in the complainant disclosing that Mr Lam had for some time been showing her such videos and telling her that he imagined them doing the things that were depicted in the videos. The police were later contacted and Mr Lam was subsequently arrested and charged.

60. The Crown served a Tendency Notice (ss 97(1)(a) and 99 of the Evidence Act). It referred to the facts constituting the sixteen counts and a further nine incidents which, it alleged had occurred but with which Mr Lam had not been charged.

61. It asserted that these incidents were probative of the following tendencies:

That [Mr Lam] had a tendency to have a particular state of mind, namely:

(a) To have a sexual attraction to [the complainant].

That [Mr Lam] had a tendency to act in particular ways, namely:

(b) To act on his sexual attraction to [the complainant];

(c) To take advantage of his relationship with his girlfriend, [the complainant's mother], to gain access to her daughter, [the complainant].

62. In relation to those further nine incidents or unchanged acts, the Crown summarised them in its Tendency Notice. It is convenient to adopt the evidence from those summaries. They are identified by reference to twenty-three incidents, which include those encompassed in the counts on the indictment as well as the unchanged acts. In order to make discussion meaningful, I set out in the following table the correspondence between the incidents and the counts and the uncharged acts:

63. A summary of the allegations constituting the uncharged incidents are as follows. The second incident was alleged to have occurred when Mr Lam showed pornographic videos to the complainant. While showing her the videos, he warned her that if she told anyone there would be "big consequences, something might happen to [her] mum or something".

64. The fifteenth incident was alleged to have happened when Mr Lam and the complainant were talking. The complainant recorded the conversation on her mobile telephone. During the conversation Mr Lam admitted to loving the complainant sexually and wanting to do sexual acts with her.

65. The seventeenth incident, the Crown alleges, occurred when Mr Lam and the complainant took the family dogs for a walk to an electrical tower. During the walk back home Mr Lam said, "I imagine you and I doing it". The complainant believed Mr Lam was referring to having sex with her. She did not reply.

66. The eighteenth incident was an allegation that the complainant was having a shower in the bathroom when Mr Lam walked in and asked if he could join her. The complainant said, "No". Mr Lam left the bathroom. After her shower the complainant walked into the master bedroom to ask Mr Lam why he walked in on her. However, when she went into the bedroom she saw Mr Lam was naked, watching a video and masturbating. Mr Lam smiled at her.

67. As to the nineteenth incident, the Crown alleged that Mr Lam gave the complainant money for her to massage him. However, the complainant said she was not good at massages and gave the money back. The complainant believed Mr Lam wanted her to give him a sensual massage, including touching his penis, because he had shown her a lot of videos of this where he said, "You could be doing this for me".

68. For the twentieth incident, the allegation of the Crown was that the complainant, her mother and Mr Lam travelled to the beach at Bateman's Bay, New South Wales. The complainant's mother was lying on the sand while the complainant and Mr Lam went swimming in the ocean. The complainant was wearing her swimming suit. Mr Lam encouraged her to swim out to him further away from shore. He then said, "If no one was there, I would be touching you by now".

69. This incident was said to have happened between 31 August 2011 and 12 August 2012.

70. The twenty-first incident was alleged by the Crown to have taken place when the complainant was going to bed and had gone into the master bedroom to say good night to Mr Lam. The complainant thought Mr Lam was asleep. As she gave him a hug Mr Lam pulled her shirt up and licked her breast. The complainant pushed him away.

71. The twenty-second incident involved another person who attended a linen party at the home of and held by the complainant's mother. The allegation was that this person at some point went into the master bedroom and saw Mr Lam and the complainant lying in bed watching television. Mr Lam was not wearing a shirt. The complainant was snuggled into Mr Lam's chest and Mr Lam had his arm around her stroking the skin on her thigh. The person spoke to Mr Lam briefly before telling the complainant's mother what she saw.

72. The substance of the twenty-third incident was an allegation that, on various dates, when the complainant's mother was out of the house or not present, Mr Lam would show the complainant pornographic videos or have his pants off.

73. Although I have not, except in one case, identified the dates of the alleged incidents (other than those in the counts where the dates are set out above at [6]), each of the incidents were said to have occurred within a time period of some months, some slightly more specific than others, but in any event, in each case within the period spanned by the counts on the indictment, namely between 31 August 2011 and 12 August 2012. That makes all the incidents contemporaneous with the counts on the indictment, a significant matter.

74. The Crown, to complete the picture, also referred to complaint evidence and an admission which it proposed to adduce.

75. The first complaint was associated with the sixteenth count, which, as referred to above (at [58]), was interrupted by the complainant's mother entering the room where Mr Lam was showing the complainant pornographic videos. The complainant then disclosed other acts to her mother.

76. On the same day the complainant told her sister that Mr Lam had bought her a vibrator and shown her his penis. She also told her that Mr Lam had used his fingers and mouth on her vagina.

77. In about mid-August 2012, the complainant told her brother and his partner that Mr Lam had put his fingers inside her and shown her pornography. She also stated that Mr Lam had put his penis near her vagina, bought her a vibrator and walked in on her in the shower.

78. Later, Mr Lam admitted to a friend that he had shown the complainant pornography (because the complainant had asked about it) and bought her a vibrator. He did not explain why.

79. The Crown sought to have the evidence adduced for each of the counts on the indictment cross-admitted as tendency evidence in each of the other counts and each of the other incidents admitted in respect of each of the counts on the indictment as tendency evidence. I have set out above (at [61]) the tendencies it was submitted the evidence proved and which were said to be relevant to the proof of the counts on the indictment.

80. Adduced on the application was an affidavit of a prosecutor to which was annexed copies of

(a) the transcripts of interviews conducted by police with the complainant on 11 and 16 August and 23 October 2012;

(b) the transcript of an audio recording from the mobile phone of the complainant;

(c) statements of a number of police officers involved in the investigation and the complainant's mother, the complainant's sister, the complainant's half-sister, other persons referred to in incident twenty-two and statements of three other persons;

(d) some transaction records relating to the purchase of the vibrator as alleged in the fourteenth count on the indictment.

81. The Crown submitted that the evidence sought to be adduced showed that Mr Lam had an improper sexual interest in the complainant, that he was willing to give effect to that interest and that there were opportunities which he took to gratify that interest.

82. It was submitted that the particularity and contemporaneity of the evidence made it significantly probative. It was, it was submitted, demonstrative of Mr Lam's mindset and motives. The Crown relied on the comments made by Hodgson JA in ES v The Queen (No 1) [2010] NSWCCA 197 at [38]- [40]:

Where a person is charged with one or more sexual offences against a child, evidence of uncharged inappropriate sexual contact between the accused and that child can have probative value. In my opinion, there are (at least theoretically) three broad ways in which it can do so:

(1) As context evidence (so that the charged acts are not seen unrealistically as being isolated);

(2) As motive evidence (disclosing a sexual interest in the complainant that could motivate the charged acts); and

(3) As tendency evidence (disclosing a tendency to have a particular state of mind and/or to act in a particular way, including a tendency to act on the sexual interest that the accused has).

However, although there is in my opinion a theoretical distinction between categories (2) and (3) (see Leonard v R [2006] NSWCCA 267; (2006) 67 NSWLR 545 at [48]- [67], HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 at [155]- [158] per Hayne J, [273]-[279] per Heydon J), and although motive evidence as such is not subject to the requirements of s 97 of the Evidence Act, it is not practical to maintain that distinction in the case of the sexual interest of an adult in a child. This is (a) because the existence of that interest can be considered itself to manifest a tendency to have a particular state of mind, (b) because the uncharged acts will generally ipso facto have manifested a tendency to act on that interest, and (c) because the very powerful effect of tendency reasoning would be very likely to swamp any effect of motive reasoning: cf Leonard at [68], [101].
Consistently with this, it is now well established that if evidence of uncharged acts is to be used in such cases in any way other than as context evidence, then the requirements for tendency evidence need to be satisfied: Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463; DJV v R [2008] NSWCCA 272.

83. The Crown also relied on the probative value that the evidence would have in rebutting any assertion by Mr Lam that the conduct alleged in the counts on the indictment was innocent.

84. As to unfair prejudice, the Crown submitted that the ordinary justifications for excluding such evidence were not present here, namely that the jury may convict Mr Lam as punishment for these acts or be distracted from the central issues at the trial.

85. In the first place, it was submitted the evidence was similar to that to be adduced in support of the counts and unlikely to require the jury to focus on the uncharged acts or result in the jury focussing on them rather than the counts themselves. In the second place, the similarity would also mean that the jury would be unlikely to react in an emotional way to the tendency evidence so as to overwhelm the objective analysis of the evidence for the counts on the indictment on which they must concentrate.

86. The Crown further pointed out that the balancing task required by s 101(2) of the Evidence Act had to take into account whether directions given to the jury could ensure that the risk of unfair prejudice was eliminated or moderated to the extent that it did not overwhelm the probative value. See R v Ngatikaura [2006] NSWCCA 161; (2006) 161 A Crim R 329 at 336; [32].

87. It relied on the strong statement by McHugh J in Gilbert v The Queen (2000) 201 CLR 414 at 425-6; [31]-[32]:

The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials. It is of course true that, if a jury persists in returning a verdict that is contrary to law, the trial judge must accept it [Gammage v The Queen [1969] HCA 68; (1969) 122 CLR 444 at 451]. But that only means in Lord Mansfield's words that, although "[i]t is the duty of the Judge ... to tell the jury how to do right ... they have it in their power to do wrong" [R v Shipley (1784) 4 Doug 73 at 170 [99 ER 274 at 824]].
In my respectful opinion, the fundamental assumption of the criminal jury trial requires us to proceed on the basis that the jury acted in this case on the evidence and in accordance with the trial judge's directions and that they would have done so even if manslaughter had been left as an issue, as it should have been left. In Spratt [(1982) 8 A Crim R 361 at 372], Pidgeon J said, correctly in my opinion, "that an appellate court must proceed on the basis that the jury have understood and applied the law in reaching a true verdict".

88. To the same effect was the following comment of Gleeson CJ and Gummow J in the same case at 420; [13]:

The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.

89. The Crown further submitted that the evidence should not be considered in isolation but that I should have regard to the other evidence sought to be adduced by the Crown and not consider each item of evidence in isolation from the whole body of the Crown's evidence. Recently this approach was discussed in the New South Wales Court of Appeal in DSJ v The Queen [2012] NSWCCA 9 at [10] per Bathurst CJ and at [78], [131] per Whealy JA, with whom McClellan CJ at CL and McCallum J agreed.

90. Finally, the Crown submitted that, if any of the evidence was not admissible for a tendency purpose, it was admissible as context evidence in the way described by the High Court in HML v The Queen [2008] HCA 16; (2008) 235 CLR 334. In that case, Crennan J described such evidence at 479; [430]-[431] as follows:

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