Henry McDonald appears for trial with respect to three substantive counts which allege a variety of acts constituting sexual misconduct with his daughter. Two incidents allege sexual intercourse as defined (counts 1 and 4) with alternative counts (counts 2 and 5) to each of those allegations, of assault with an act of indecency. A separate substantive count of an assault with an act of indecency is pleaded as Count 3. The allegations relate to incidents of sexual assault said to have been committed by the accused on his daughter on various occasions when the child was between the ages of approximately 5 or 6 years of age and approximately 13 years of age. The Crown seeks to lead evidence of uncharged acts which are said to have occurred between the accused and his daughter, such uncharged acts being relied upon as both context and tendency evidence.
There is no challenge on behalf of the accused to the admission of that evidence relating to the same complainant.
The Crown also seeks to lead evidence, as tendency evidence, of uncharged acts which are said to have occurred between the accused and his younger sister in the period between approximately 1975 and 1977. Objection is taken by the accused to the admission of that evidence.
Notice was given by the Crown of the intention to adduce evidence of "tendency" pursuant to the tendency rule in sub-section 97(1) of the Evidence Act 1995 (NSW). The tendency identified in that Notice is a tendency to act in a particular way, and to have a particular state of mind, namely: (a) to have a sexual interest in female children aged between 5 and 13, with whom he has a familial connection; and (b) to act on that sexual interest by engaging in sexual acts and / or sexual misconduct when he has the opportunity.
The Crown in its Tendency Notice indicates reliance upon the following evidence to prove the tendencies identified:
1. Evidence that demonstrates that the accused has a sexual interest in the complainant, his daughter Christine McDonald, from the age of 6 - 13;
1. to have groomed the complainant and reward her accordingly;
2. to have acted on that sexual interest by engaging in sexual acts and / or sexual misconduct with her;
3. to have done so opportunistically and in circumstances where there is a high risk of detection.
1. Evidence that demonstrates the accused had a sexual interest in his sister, Jodie McDonald, from the age of 5 upwards.
1. to have acted on that sexual interest by engaging in sexual acts and / or sexual misconduct with her; and
2. to have done so opportunistically and in circumstances where there is a high risk of detection.
The admission of tendency evidence with respect to child complainants requires consideration of section 97A of the Evidence Act 1995. Section 97A was introduced in 2020. It represented the NSW Government's response to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. Significantly, the new section introduced a presumption that tendency evidence would have significant probative value. It also itemised various factors which previously had been relied upon by judges to determine whether or not particular evidence did have significant probative value. However, as described in the Second Reading Speech by the then Attorney-General, Mr Speakman:
"In recognition of the feedback from legal stakeholders regarding a concern that the greater admission of tendency evidence in child sexual assault prosecutions could give rise to a risk of unfair prejudice to an accused person, and the importance of maintaining judicial discretion, the presumption provided for in the proposed section 97A is rebuttable."
The Attorney-General described the objectives of the legislation as being "to facilitate greater admissibility of tendency evidence and, specifically, the intent of the proposed section 97A to facilitate greater admission of tendency evidence in child sexual offences."
The relevant provisions of section 97A are as follows:
(1) This section applies in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue.
(2) It is presumed that the following tendency evidence about the defendant will have significant probative value for the purposes of sections 97(1)(b) and 101(2) -
(a) tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest),
(b) tendency evidence about the defendant acting on a sexual interest the defendant has or had in children.
(3) Subsection (2) applies whether or not the sexual interest or act to which the tendency evidence relates was directed at a complainant in the proceeding, any other child or children generally.
(4) Despite subsection (2), the court may determine that the tendency evidence does not have significant probative value if it is satisfied that there are sufficient grounds to do so.
(5) The following matters (whether considered individually or in combination) are not to be taken into account when determining whether there are sufficient grounds for the purposes of subsection (4) unless the court considers there are exceptional circumstances in relation to those matters (whether considered individually or in combination) to warrant taking them into account -
(a) the sexual interest or act to which the tendency evidence relates (the tendency sexual interest or act) is different from the sexual interest or act alleged in the proceeding (the alleged sexual interest or act),
(b) the circumstances in which the tendency sexual interest or act occurred are different from circumstances in which the alleged sexual interest or act occurred,
(c) the personal characteristics of the subject of the tendency sexual interest or act (for example, the subject's age, sex or gender) are different to those of the subject of the alleged sexual interest or act,
(d) the relationship between the defendant and the subject of the tendency sexual interest or act is different from the relationship between the defendant and the subject of the alleged sexual interest or act,
(e) the period of time between the occurrence of the tendency sexual interest or act and the occurrence of the alleged sexual interest or act,
(f) the tendency sexual interest or act and alleged sexual interest or act do not share distinctive or unusual features,
(g) the level of generality of the tendency to which the tendency evidence relates.
Mr Juhasz, counsel for the accused, submits that there are exceptional circumstances in relation to the matters set out in sub-section 97A(5) and that the Court would accordingly determine that the tendency evidence relating to Jodie McDonald does not have significant probative value for the purposes of s 97A(1)(b) and s 101(2).
In these circumstances, it is appropriate to look at the particular allegations which are made against the accused.
The complainant in the trial, the accused's daughter, sets out the detail of the alleged sexual misconduct of the accused in a total of six statements and in an interview conducted with authorities in 2010.
Her earliest recollection is of being photographed when she was naked at the age of about 3 to 4 years. Evidence is also proposed to be led of the accused taking photos of her posing in a bikini between the ages of approximately 3 and up to 10. The first incident involving sexual assault, which is the subject of counts in the indictment, is said by the complainant to have occurred sometime between January 2006 and December 2007 when the complainant was between 9 and 10 years of age. The complainant was wearing winter pyjamas which she describes in detail. She described waking up on the accused's side of the bed. She was in her parents' bedroom and in her parents' bed at the time. She described the accused putting his hand on the inside of her pyjama pants and inserting his thumb into her vagina. In a subsequent statement, the complainant's recollection varied to a not inconsiderable degree, and she thought the incident had occurred when she was 6 and wearing different pyjamas than those she had previously described.
The complainant was born in 1996 and the Crown has, accordingly, pleaded a wide range of dates with respect to this incident between August 2002, the date of the complainant turning 6, and up to December 2008, when she would have been 12. Count 1 which alleges sexual intercourse, notwithstanding the date range, pleads that she was a person above the age of 10 years and under the age of 14 years.
Count 2 is in the alternative and alleges assault with an act of indecency.
The complainant subsequently describes sexualised conduct, the detail of which it is not necessary for the present purposes to recite. She went on to describe an incident which occurred when she was wearing her winter dress in her first year of high school in 2009. She described a discussion with her father regarding the length of her school dress, in the course of which he started rubbing her upper thighs underneath her winter school dress. This action founds the allegation in Count 3 of assault with an act of indecency.
The third incident giving rise to the counts in the indictment also occurred during her first year at high school in 2009. The incident is placed temporally in July 2009 by reference to a concert which was to be held in that month. In the course of an interaction between the complainant and the accused in the lounge room of their home, the accused sat beside the complainant and started to rub her thigh. His hand moved up her leg and underneath her loose-fitting shorts. Her underwear was moved to one side and he pressed his thumb inside her vagina. This incident gives rise to the allegation of sexual intercourse in Count 4 with the count in the alternative, Count 5, of assault with an act of indecency.
The tendency evidence proposed to be led by the Crown relates to incidents described by the complainant's aunt, the accused's sister, in respect of incidents said to have occurred between 1975 and 1977. The accused was born in 1961 and his sister Jodie was born approximately 8 years later, in 1969. The first incident described by the accused's sister was said to have occurred when she was 5 years of age in early 1975. At that time, the accused was 13 years of age. Jodie described her older brother picking her up and lying her on her back on his bed in an annex where the children slept in the caravan park operated by their parents. She described him straddling her and trying to put his penis into her mouth. She said that she kept her mouth closed so that it never actually went inside her mouth. She recalled the accused holding his penis in his hand and rubbing it along her lips. She said that his penis was not erect.
She described a subsequent incident having occurred in 1976 where her brother dragged her inside the caravan in which he was then sleeping. She recalled fighting him off and did not recall the detail of what happened although her statement implies that it was something sexual. She recalled another incident where the accused told her to take her pants down but then to immediately pull them back up when his friend called from outside the tent where they were at the time.
Jodie also describes an incident in the summer months of 1977 when she was 8. That would place it in the summer at the end of 1977 if she was 8. She described the accused taking her clothes off and sucking and biting the nipples on her breasts. She described him lying on top of her and "grinding against me" until he ejaculated. She described that his penis did not actually penetrate her vagina. She described incidents occurring, inferentially, over the following years. She recalled that nothing ever happened sexually with her brother after their father died in 1979. The last incident specifically described by her would have occurred when the accused was approximately 15 or 16 years of age.
The earlier allegations by Jodie are properly to be identified as relevant. To the extent that they reveal a tendency as described by the Crown, they are presumed to have significant probative value. Whether or not that presumption is rebutted by a determination that one or more of the matters listed in ss 97A(5) gives rise to a consideration as to whether the circumstances are exceptional. The circumstances in which the alleged sexual interest and acts occurred are different between the complainant and the accused's sister. While the alleged acts in each case are sexual, the nature of the alleged offending with respect to the accused and his sister involve the presentation of his penis, in one instance, to the point of ejaculation. The alleged offending with respect to the complainant, involves touching in her genital area and the alleged insertion of a thumb on two occasions.
The personal characteristics of each of the sister on the one hand and the daughter on the other are similar as to gender and broad range of age. However, the nature of the relationship is self-evidently different, involving, first, a sister some 8 years younger when the accused himself was an adolescent, while the offending with respect to his daughter involved a position of trust and authority as the child's father, and reflected an age difference of some 35 years. The offending conduct with respect to the complainant is said to have occurred when he was between the ages of approximately 40 up to almost 48 years of age. The period of time between the occurrences alleged by the accused's sister and those by his daughter is a minimum of 25 years and likely between 30 and 34 years.
Whether those circumstances, considered individually or in combination, amount to exceptional circumstances, is the question for determination.
The Court has been provided with references to a number of cases in which a relevant factor for consideration was the length of time between charged offending and an earlier act or acts said to establish tendency.
In McPhillamy v The Queen (2018) 361 ALR 13, the High Court granted special leave on the question of whether asserted tendency evidence which had occurred a decade before the alleged offending against the complainant had significant probative value. That prerequisite in s 97(1)(b) predated the introduction of s 97A.
In the District Court, the complainant had given evidence of the sexual interactions between himself as an 11 year old altar boy and the accused who was at the time, an acolyte at the cathedral in Bathurst. The earlier evidence was provided by two men who had been boys at Saint Stanislaus' College in Bathurst in 1985. The accused had been an assistant house master of the college and each gave evidence, which was unchallenged, of conduct amounting to aggravated sexual assaults. The trial judge, Judge King SC, admitted the evidence as evidence of tendency in the trial of the accused. The Crown went to the jury on the basis that the evidence of the two earlier witnesses demonstrated a tendency to have a sexual interest in male children in their early teenage years who were under his supervision.
In the Court of Criminal Appeal, Harrison and R A Hulme JJ concluded that the tendency evidence strongly supported the prosecution case. Their Honours considered that it was open to the jury to reason that a sexual interest in young teenage boys was unlikely to become attenuated over an interval of 10 years. Meagher JA in dissent did not consider that the suggested similarities in conduct was determinative of the probative value of the evidence. His Honour reasoned that while the earlier conduct manifested a sexual interest in young teenage boys, it did not show the accused's preparedness to act on that interest in the circumstances described by the more recent complainant. As a consequence of his Honour's finding that the evidence did not meet the threshold test, it was unnecessary for him to deal with a submission that the evidence was inadmissible pursuant to s 101(2) of the Evidence Act 1995, namely that the probative value did not substantially outweigh the danger of unfair prejudice. Meagher JA stated however, that had it been necessary to determine, he would not have found that the danger of unfair prejudice would have been beyond the prejudice "that it is accepted to arise in any event." The High Court in due course observed that that reference was to the risk that the jury might reason that the appellant was likely to have committed the offences against the complainant:
"because the appellant is a sexual deviant, or that jurors might be so emotionally effected by the evidence as to disregard the appellants case and the trial judges' directions to assess the evidence without prejudice, or that jurors might be disinclined to give the appellant the benefit of the doubt." (At [20]).
The plurality in the High Court, Kiefel CJ and Bell, Keane and Nettle JJ, expressed the view that Harrison and R A Hulme JJ appeared to have misapprehended Meagher JA's analysis of the prejudicial effect of the tendency evidence. In examining the probative value of the evidence of the two boys who had been at the school, the High Court noted that the evidence demonstrating that tendency was confined to the evidence of the events that had occurred in 1985. The Court noted that "there was no evidence that the asserted tendency had manifested itself in the decade prior to the commission of the alleged offending against" the complainant.
The High Court made reference to R v Cox [2007] EWSA Crim 3365, a decision of the Court of Appeal of England and Wales. In Cox, evidence of his conviction for the indecent assault of a pubescent girl some 20 years earlier was held to have been rightly admitted at his trial for the indecent assault of his pubescent babysitter. In Cox, the offender was in his early fifties at the time of the charged incident, and the babysitter was 13. He had previously been convicted in 1981 at the age of approximately 33 of two offences of indecent assault of a girl under the age of 14, and one offence of attempted sexual intercourse of a girl under the age of 13.
The trial judge in Cox rejected a submission that the earlier offending was in the context of a genuine relationship in which the defendant believed that the girl in question was 16. The appeal court was of the view that if it had been a case of a teenage affectionate and experimental relationship in which the female party happened to be under the age of consent, that there would then have been greater foundation for an argument that the circumstances significantly differed from the more recent and present allegation. However, Lord Justice Hughes observed at [22]: "But a sexual interest by a grown man, properly developed with no handicaps, in his thirties, for a child of 12, is a different proposition altogether."
The Court of Appeal in Cox also made reference to R v Hanson [2005] 2 Cr App R 21, 299. The Court in Hanson had "adverted to the likelihood that old convictions with no special features shared in the offence charged were also likely seriously to affect the fairness of proceedings adversely, unless, despite their age, it can properly be said they show a continuing propensity." The Court, however, noted that child sexual abuse might be a clear example of the kind of unusual behaviour which might establish, or be capable of establishing, a propensity even where there was but a single previous proved occasion of it.
The Court of Appeal also made reference to R v M [2006] EWCA Crim 3408. On the facts of that case, the Court of Appeal held that the trial judge had erred in holding that a single previous incident 20 years earlier was capable of establishing a propensity to possess a sawn-off shotgun 20 years later. In R v M, the Court expressed that a single conviction something like 20 years earlier, "would only rarely be relevant to showing propensity unless there was some very special and distinct feature". The Court suggested that a "predilection for a highly unusual form of sexual activity" might have such relevance. In Cox, the Court concluded that there was force in the proposition "that a defendant's sexual mores and motivations are not necessarily affected by the passage of time" (at [29]).
Returning to the observations of the High Court in McPhillamy, the Court described the case of Cox as being concerned with the "relevance" of the evidence of the earlier conviction. In the matter before the High Court, the evidence of the earlier incidents with the school boys was accepted as being relevant. However, it was not admissible as tendency evidence unless it was capable of significantly bearing on proof of the offences alleged by the complainant. The plurality said at [30]:
"in the absence of evidence that the appellant had acted on his sexual interest in young teenage boys under his supervision in the decade following the incidents at the College, the inference that at the dates of the offences he possessed the tendency is weak."
The High Court, after referring to Hughes v The Queen (2017) 92 ALJR 52 at [69] and R v Bauer (a pseudonym) (2018) 92 ALJR 846 at [863] said that it would "usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together." The Court concluded that the tendency to exercise supervision over vulnerable homesick boys in his care as assistant housemaster at the College was to be contrasted with the complainant's account of being followed into a public toilet and molested. The High Court concluded that the evidence of the school boys "established no more than that a decade before the subject events, the appellant had sexually offended against each of them." The Court was not satisfied that proof of that offending was capable of effecting the assessment of a likelihood of the appellant having committed the offences against the complainant "to a significant extent". The High Court concluded the tendency evidence did not meet the threshold requirements and accordingly it was unnecessary to address submissions regarding prejudicial versus probative value.
On behalf of the accused in the present matter, Mr Juhasz of counsel also referred the Court to Davidson (a pseudonym) v R [2024] NSWCCA 60. The trial judge, Judge Haesler SC, had admitted evidence of tendency which had been identified as having a particular state of mind, namely a sexual interest in teenage girls aged between 15 and 17 years, with whom he had a familial relationship and who were under his authority, and residing with him. Evidence by the complainant, who was the accused's niece by marriage and had been living with him and his family for nearly 2 years, alleged digital penetration of her vagina on two occasions when she was 15 years old.
The earlier tendency evidence was sought to be established by the tendering of a series of text messages which had been sent to his step-daughter when she was living with the family and aged 16 and 17. The messages were sexual in nature and suggested that he wanted to touch the step-daughter, see naked photographs of her, and that he had a sexual interest in her. Those messages had been sent some 3 years prior to the allegations with respect to his niece.
The Court of Criminal Appeal were not satisfied that the general nature of the tendency reduced the probative value of the evidence. The Court was similarly not of the view that the fact that the tendency related to only one other person constituted a sufficient ground to rebut the presumption in s 97A(2). The Court did, however, recognise a danger of unfair prejudice. At [53] Adamson JA, with whom Stern JA and Wright J agreed, said:
"The danger of unfair prejudice was the danger that the jury might consider, on the basis of the tendency evidence, that the applicant was a person of bad character and for that reason must have committed the offences charged."
However, her Honour came to the view that the firm direction given to the jury by the trial judge removed, or significantly mitigated, the danger of unfair prejudice. Accordingly, in her Honour's conclusion, the evidence was not inadmissible under s 101.
It should be observed in passing that the earlier tendency evidence was restricted to the sending of text messages evincing a sexual interest and did not extend to physical acts which might have evoked a more emotional response in a jury.
The Court was also referred to BC v R [2019] NSWCCA 111. That appeal followed a retrial in which four complainants had given evidence with respect to some 20 separate allegations of child sexual assault offences. The offending conduct occurred between 1994 and 2011. The appellant was convicted on all counts. He had previously lodged an appeal from an earlier aborted trial with respect to the admission of tendency evidence by way of cross-admissibility between the four complainants. That appeal was dismissed by majority in the Court of Criminal Appeal.
With respect to the more recent appeal in the Court of Criminal Appeal, in relation to three counts of which the offender had been convicted, the appeals were upheld on the basis that the applicant had been under the age of 14 at the time of the alleged offending and the evidence at trial was not capable of rebutting the presumption of doli incapax. The convictions were quashed with respect to those three counts. The appellant in BC relied upon McPhillamy v The Queen. The Court, however, accepted the Crown's submission that McPhillamy was distinguishable from the facts of BC. At [79] the Court, Leeming JA, Ierace J and Hidden AJ, said:
"The principle basis for this is the significant time difference, of some 10 years, between the alleged incidents in McPhillamy, and the materially different circumstances of the charged conduct compared with that which was subject of the tendency evidence. No such time gap existed in the present case, where the applicant is accused of having committed numerous and regular assaults over the course of some 16 years following substantially the same pattern."
The Court also accepted the Crown's submission that the very young age of each of the complainants, namely only being about 5 years old when the offending commenced, was an additional unusual feature linking the evidence together. The Court in BC also gave consideration to an assessment of the probative value vs. the prejudicial effect. The Court made reference to the statement by the High Court in Hughes v The Queen [2017] HCA 20; 92 ALJR 52 at [17] where the members of the majority (Kiefel CJ, Bell, Keane and Edelman JJ) set out common features giving rise to prejudice where tendency evidence is relied upon in a criminal trial. The High Court at [17] said:
"The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years."
While the Court in BC was concerned with the unamended s 101(2), which required establishing whether the probative value "substantially outweighs" any prejudicial effect, the Court concluded that the tendency evidence had high probative value and that it did substantially outweigh any prejudicial effect. The strong directions which had been given by the trial judge were assessed as preventing the jury's reasoning from being effected by the inevitable emotional response to the evidence.
The Crown directed the Court's attention to RHB v The Queen [2011] VSCA 295. That was an application for leave to appeal against an interlocutory decision of Judge Duggan of the County Court to admit evidence of previous convictions as tendency evidence. The charge at trial was a single offence of an indecent act with the accused's granddaughter. The offence was said to have occurred between 2003 and 2005 when the complainant was between 10 and 11 years of age. The allegation was that the accused had put his hands down the child's pants and underwear and touched her vagina with the back of his fingers.
The tendency evidence sought to be relied upon was a tendency to indecently assault pre-pubescent and pubescent girls to whom he was related by touching them on the vagina. The accused had pleaded guilty to earlier charges of touching one of his daughters on the vagina when she was 6 years of age in 1978 to 1979 and a further charge of indecent assault with the same daughter touching her on the vagina and breast between 1984 and 1986 when she was approximately 12 or 13 years of age. He had also pleaded guilty to an earlier charge of indecent assault against another daughter between 1984 and 1985 by touching her on the vagina and licking her vagina when she was approximately 5 years of age.
The trial judge was alert to the long period of time between the last offending against one of his daughters and the alleged offending against the complainant, namely a period of approximately 17 years. The County Court Judge had said that it "is relevant and certainly [a consideration] to be borne in mind in weighing up the situation." The Appeal Court was of the view that the principles in House v King (1936) 55 CLR 499 were applicable and that the test was not satisfied in the matter before them, in other words, it had been open to the judge at first instance. The judge at first instance had given consideration to the likelihood of a jury considering that it was highly improbable that someone in the position of the accused would take a sexual liberty of the character alleged with their own granddaughter. His Honour was of the view that what he characterised as "very similar acts" in respect of his own daughters, even if quite some time before, when those daughters were of similar age to the alleged victim, would have a very substantial probative effect on the question of the probability of whether or not the accused did the act alleged.
The Crown also made reference to TB v R [2019] NSWCCA 224. The appellant in TB had been convicted following a trial in the District Court before his Honour Judge Bozic SC. The first count of which the offender was convicted had occurred in 1997 or 1998 when he was between the ages of 19 and 21. The complainant was 12 or 13 and the offending conduct was digital penetration of her vagina. The subsequent offences alleged in the indictment concerned the appellant's step-daughter and were said to have occurred in 2011. The appellant was 34 or 35 and his step-daughter was 10 or 11 years of age. One count of which he was convicted was an act of indecency with a person under his authority and another was of sexual intercourse being digital penetration. He was acquitted of two of the five counts.
An application for separate trials with respect to each complainant was determined by reference to the admissibility of the separate complaints as tendency evidence. The trial judge had observed, with respect to the gap between the alleged offending:
"There is a large time gap between the two, some 14 to 15 years, but in my view that evidence is capable of demonstrating that the accused had a particular state of mind: namely, a sexual interest in girls of 9, 10, 11 or 12 and that over the years on two occasions he has acted on that interest in quite specific and not dissimilar ways."
On the appeal, counsel for the appellant submitted that even if the evidence of the first complainant could show a tendency as alleged by the Crown in 1997 or 1998, the Crown must nonetheless show that the tendency still existed in 2011 after a gap of 14 years. It was submitted that a tendency that existed 14 years after it were first manifested would be of very low probative value.
The Court of Criminal Appeal made reference to R v SK [2011] NSWCCA 292 where there was a temporal gap of 8 years between the first and second of the alleged offences. On the facts of that matter, Latham J, with whom Giles JA and Rothman J agreed, found that the lapse of time between the alleged assaults upon the respective complainants was a powerful factor in reasoning towards the commission of the offences by the applicant. That view was tempered as a consequence of the factual scenario in that case relating to opportunities arising with respect to family gatherings and the age of the complainants.
The Court of Criminal Appeal in TB also referred to RH v R [2014] NSWCCA 71 in which the sexual assault offences against two children in the accused's foster care were found to be reasonably similar in a number of respects. Ward JA in RH found that although there were differences in the alleged sexual acts, the conduct as a whole had greater similarity than different acts which had led to a different outcome in Regina v Thomas Douglas Watkins [2005] NSWCCA 164; 153 A Crim R 434. I should immediately observe that Watkins was a fraud trial in which an earlier defrauding by the offender in 1983 and 1984 was relied upon to show that he had a tendency to act fraudulently with respect to the drawing of fraudulent cheques with a different company between 1999 and 2002. There were not insubstantial dissimilar circumstances with respect to the fraudulent conduct and the Court of Criminal Appeal found that there was no logical connection between the events of 1983 to 1984 and those of 1999 to 2002. Barr J, with whom Grove and Howie JJ agreed, said at [35]:
"… the only way in which the jury could have used tendency evidence was to reason that the appellant was a cheat and a fraud and was therefore more likely to have cheated and defrauded (the later company)."
Critical to the question was the passage of 15 years without asserted blemish. Barr J was of the view that the intervening years of good conduct substantially weakened the evidence for the contention that the appellant continued to have the tendency as late as 1999.
Ultimately, in TB v R, the Court concluded that the ruling of Judge Bozic SC with respect to the admissibility of the evidence as tendency was correct.
The Crown also referred the Court to one of the few appeal decisions following the introduction of s 97A. In R v Clarke [2023] NSWCCA 123, the Court upheld an appeal by the Director of Public Prosecutions from a pre-trial ruling by Judge Coleman SC in which his Honour had held that tendency evidence sought to be relied upon by the Crown lacked significant probative value and that the presumption in s 97A(4) had been rebutted and accordingly s 97A(5) was not engaged. His Honour had held that even if it were, there were, in his view, exceptional circumstances that warranted taking into account some of the factors in ss 97A(5).
The Court, Davies, Fagan and Yehia JJ, held that the ruling against admissibility "substantially weakened the prosecution case" and that the primary judge had erred in principle. His Honour had taken into account some of the factors in ss (5) in determining that the tendency evidence did not have significant probative value. The Court held, at [36], that there were no exceptional circumstances and that to be exceptional, the circumstances must be more than merely sufficient to enliven some of the points of comparison in sub-sections (a) to (f) of 97A(5).
On the facts in Clarke, the Court of Criminal Appeal did not find any circumstances of the case that would justify the characterisation of "exceptional".
The Court gave consideration to the exclusion of evidence pursuant to s 101(2) and in applying the question of whether the probative value was outweighed by the danger of unfair prejudice, the Court concluded that the evidence of one complainant that was intended to be relied upon as tendency with respect to the other complainants, that there was such a high degree of danger of unfairness to the accused as to warrant the severance of the counts relating to that particular complainant. The Court pointed out at [42]:
"Our conclusion under s 101(2) rests upon there being a high degree of danger of unfairness to the respondent, rather than a low degree of probative value in LB's evidence of tendency in so far as it would be led on counts 11-13. Having regard to the statutory deeming of "significant probative value" under s 97A(2), it is difficult to see how the Court could ever evaluate the probative value side of the equation for the purposes of s 101(2). In this appeal the balancing exercise leads to exclusion because it is highly likely that LB's evidence, if accepted, would cause the jury to feel strong revulsion against the respondent as a man who would engage a child in adult sexual activity as LB describes. It would be difficult for many jurors to contain the emotional responses that this evidence would be likely to evoke."
It should be observed in passing that the logical construction outlined by the Court of Criminal Appeal in Clarke arose because the presumption in s 97A was not rebutted.
[2]
DETERMINATION
I have given careful consideration to the determinations, particularly in the appellate jurisdiction, with respect to the probative value of identified tendencies and the potential of unfair prejudice in respect of the factual matters in those cases. In my view, the earlier allegations relating to the offenders asserted conduct with his younger sister give rise to a consideration as to whether the statutory presumption of significant probative value is properly found to be rebutted.
In R v Constant (2016) 126 SASR 1; [2016] SASCFC 87, the Court, referring to a test of "exceptional circumstances", said:
"An assertion of exceptional circumstances contemplates a discernible norm - the routine or ordinary outcome - in relation to which the asserted circumstances may be compared and the question determined whether they do in fact answer the description of being exceptional. What is the norm and when is a departure from that norm exceptional?"
In my view, a combination of circumstances support a conclusion that the circumstances in this matter are exceptional. Some of the acts alleged by the offender's sister occurred at a time when the offender was of an age which would give rise to a consideration of the principle of doli incapax. The fact that the offender was a child at all times during the relevant offending conduct alleged with his sister, differences in the conduct alleged between the two complainants, and the subsequent effluxion of approximately three decades without blemish, amount to exceptional circumstances. The passage of time weakens the probative value of the evidence and I accordingly determine that the tendency evidence does not have significant probative value.
Whilst I recognise that reasonable minds may differ in respect of this conclusion, if I were to be found to be wrong, I would not be satisfied that the probative value outweighs the prejudicial effect. As noted earlier, the physical acts alleged by the accused's sister are not confined to sexual texts of the kind referred to in Davidson (a pseudonym) v R. The description of his ejaculation on the body of his young sister is material of a kind, leaving to one side questions of doli incapax, to likely invoke such feelings of repulsion in the minds of a jury as to be not capable of correction by any appropriate direction.
Accordingly, I reject the proposed tender of the tendency evidence with respect to the accused's sister.
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 04 July 2024