R v Swain

NATURE OF THE CROWN CASE

1. The 4 counts on the indictment concern two complainants. Counts 1 & 2 concern complainant TP. Counts 3 & 4 concern complainant JS.
2. In relation to Counts 1 & 2, the Crown case is that in February 2004, the accused, then aged 23, was in a relationship with a woman (JG) who was the complainant's aunt. The complainant was born in 1997. The complainant's mother was in a de facto relationship with a man (MB).
3. As to Count 1, the Crown contends that in February 2004, family members picked up JG and the accused from an address in Watanobbi. MB was driving. Relevantly, the complainant TP, then aged 7 years old, sat on the accused's lap in the passenger seat behind the driver. The Crown alleges that during the car trip, the accused placed his right hand under the complainant's clothing and underwear and inserted two of his fingers inside her vagina; and thereafter took them out and flicked them on the window of the car. This is alleged to have happened about 10 times. The Crown alleges that the accused whispered to the complainant that this was a secret.
4. As to Count 2, the Crown contends that on the same night, the complainant had fallen asleep on the lounge. She was wearing pyjama shorts and a singlet. The Crown alleges that the accused woke her up and told her to go over to him; which she did. The accused was then alleged to tell her to turn around and bend over. After the complainant did this, it is alleged that the accused used his finger and hands to pull down her shorts and put two of his fingers inside her vagina moving slowly back and forth for about 5 minutes. It is further alleged that after stopping for 30 seconds, he repeated the same pattern of activity. The Crown also alleges that the accused threatened to kill the complainant if she complained.
5. As to Counts 3 & 4 (Count 4 being in the alternative to Count 3), the alleged events occurred between March and June 2017. By then, it is the Crown's case that the accused, then aged 36, had formed a relationship with the mother of the complainant, JS. JS had two siblings. The accused had moved in with the mother and her daughters.
6. As to both counts, the Crown's case is that one night between March and June 2017, the complainant, JS, was sleeping in her bed underneath the covers, wearing shorts and underwear. The accused woke her up and allegedly used a flashlight to look at her vagina. It is alleged that thereafter he moved her shorts and underwear to the side. It is alleged that he began to touch the complainant's vagina with his finger; moving it around for about 2 or 3 minutes.

THE APPLICATION FOR TRIAL BY JUDGE ALONE

1. The accused has been custody since 29 November 2018. I am informed that his priority trial of 28 October 2019 was vacated through no fault of his own.
2. On 25 April 2020, the accused signed the prescribed form (Form 146) electing to be tried by Judge alone in respect of the charges in which he acknowledged seeking and receiving advice in relation to the election from his solicitor, Samar Singh-Panwar.
3. The trial for this matter is set to commence on 22 June 2020. As at that date, trials in Gosford will not be conducted before a jury.
4. Following amendments to the Criminal Procedure Act made by reason of the enactment of the COVID-19 Legislation (Emergency Measures) Act 2020 (NSW), there is no evidentiary onus on the accused to establish that it is in the interests of justice for the trial to be Judge alone.
5. There is no issue that the accused consents to the trial being by Judge alone. Further, there is no issue that the accused has sought and received advice from an Australian legal practitioner about the effect of the order sought; proven as it is by his signature on the application form.
6. In circumstances where the Crown opposes the application, the question is whether it is in the interests of justice for the trial to proceed by Judge alone.
7. The weight to be ascribed to the COVID-19 pandemic, and its effects, on this question has been considered in a steadily increasing number of cases. The accused referred me, in particular, to the views of Lerve DCJ in Regina v BD (No.1) (Judge Alone Application) [2020] NSWDC 150, in his Honour's decision to allow trial by Judge alone. The accused submits that factors in that case also apply to his situation.
8. Common factors, as between BD, and this case, were said to include: (a) this is a trial involving charges of child sexual assault; (b) there are no complex factual issues; (c) there is arguably some legal complexity arising from the Crown's reliance upon tendency evidence; (d) the credibility of the complainants will be strongly in issue; (e) the prospect that, if the case does not proceed by trial alone, the backlog will be such that it is very doubtful if the trial could proceed by jury prior to the end of this year; and (f) the accused is very likely to remain in custody until trial occurs: he had already been refused bail following an application brought to Pickering DCJ last October. The accused submitted that there are no circumstances of this case which make it distinguishable from BD. Implicit in this submission is the view that I should follow BD.
9. In addition to the decision in BD, there have, as I have indicated, been other decisions of judges of this Court that have considered this issue, in the context of the circumstances of those cases. These include R v MPW [2020] NSWDC 170 (Priestley SC DCJ) and R v Johnson [2020] NSWDC 153 (Grant DCJ).
10. The Crown extensively referred the Court to a series of authorities, prior to the onset of the COVID-19 pandemic, concerning the application and interaction of ss 131 and 132 of the Criminal Procedure Act. Reference was made in those authorities to the public interest in the administration of criminal justice of trial by jury, and the importance of the jury in bringing to bear their collective and several experiences of life in determining issues which require consideration of community values of the kind referred to in s 132(5).
11. The Crown submits that the issue in this trial is narrow: it is whether the accused committed the acts as alleged by the two complainants. The Crown says that there is nothing in the present trial that is complex, whether in law or in fact, warranting trial by judge alone. The Crown submits that the issue of the credibility of witnesses in this case should be left for a jury. The Crown also submits that the situation concerning the COVID-19 pandemic changes every day and that by 22 June 2020, there may be a resumption of jury trials. Delay would not be lengthy.
12. On the last matter, as the Crown acknowledges, the trial date for this matter is set for 22 June 2020. If it is to occur on that date - and there is no application by the Crown to vacate that date - it can only be conducted by a trial judge sitting alone.
13. In my opinion, the Crown's position fails to accord adequate recognition to the legislative steps taken by Parliament to deal with the pandemic and the impact which consequences of those actions have upon the running of criminal trials. Put another way, the authorities on ss 131 and 132, to which reliance is placed, were determined prior to the enactment of s 365. Consistent with orthodox principles of statutory interpretation, ss 131 and 132 now must be construed in the light of s 365 and in as harmonious a way as possible. I respectfully agree with Lerve DCJ when his Honour in BD said (at [17]) that whilst the current emergency persists, s 365(3) effectively makes s 132 subordinate to s 365. The purpose here is plainly to allow the Courts, exercising judicial power, to carry on that business as an essential service, and as an arm of government, to meet the exigencies of the COVID-19 pandemic. Section 365 is plainly intended to facilitate trial by Judge alone to meet the current exigencies. The purpose is augmented when considering the power of the Court, under 365(1), to order trial by Judge alone, irrespective of the wishes of both the Crown and the accused. If they are not actually subordinate to s 365, then ss 131 and 132 are to be construed in a way that promotes (and does not frustrate) the legislative purposes made apparent by s 365 (Interpretation Act 1987 (NSW), s 33).
14. I give substantial weight that the accused has spent a significant period of time in custody. That circumstance has been contributed to by his losing the priority of his trial without fault on his part.
15. I also give weight to the circumstance that in this case, the Crown will rely upon tendency evidence. It concedes, as part of its argument on the admissibility of that evidence, that a jury or trier of fact would need to be very carefully directed as to the use that might be made of such evidence. But even with such careful direction, there remains an ineradicable risk of prejudice, or perhaps a degree of prejudice, that reasonable bystanders might think would not be present in a trial judge taking the case alone.
16. I agree, with respect, that as in the authorities to which I have referred, the two matters that the Crown principally rely upon - the preference for a jury to determine an evaluative question such as whether an indecent assault has occurred (Count 4) and the prospect that jury trials may soon resume - are not convincing reasons for opposition. The legislation authorising trials by Judge alone during the pandemic does not controvert the desirability of a jury determining evaluative questions raising community standards. Indeed, it is the premise for the legislation that has the purpose of giving impetus to the Courts to continue its business. Secondly, the fact remains that jury trials are not possible at the present time. Notwithstanding whatever hopes, or even expectations, as to when that situation will change, it is entirely a matter for speculation. Even when jury trials do resume, because of events over virtually the last two months, there will be a backlog of cases, which is likely to result in the further delay of this case, should it be tried by a jury, and the further incarceration of the accused without trial.
17. I do not consider that the Crown's submissions about community confidence about a jury forming an assessment of the credibility of witnesses, or a jury's adjudication of guilt, to be paramount in the current context. Nor do I consider that there is any real concern about community confidence in a trial judge adjudicating criminal guilt. A strong argument may be made, to the contrary, that the accountability that comes with trial judges giving reasons may indeed augment community confidence in trial by judge alone.
18. For these reasons, the application for trial by Judge alone is successful.

TENDENCY EVIDENCE

1. By its tendency notice, the Crown identified (at paragraph 5), the tendency in the accused that it alleges in the following terms: 1. the tendency of having a particular state of mind, namely, a sexual interest in female children aged between 4 and 12 years old; and 2. the tendency of acting on the same sexual interest, by engaging in the touching of the vaginas and the digital penetration of the vaginas, of girls aged between 4 and 12 years old who were in his care, or under his authority at the time, and who were members of his extended family or who he was babysitting at the time.
2. The Crown summarised the common features of the allegations pertaining to the accused's state of mind as comprising:

• they concern female children;
• the female children were aged between 4 and 12 years of age;
• the accused was a family member, or extended family member, by relationship to the complainant;
• the complainant was known to the accused;
• the alleged conduct occurred when the accused was either babysitting or in a position of authority over the complainant;
• the accused told TP and HK not to tell anyone by the use of threats or bribes; and
• in relation to each complainant, the accused touched or digitally penetrated the vagina of each complainant.

1. The relevance of the evidence is that it bears on the question of whether the accused committed the conduct in respect of each of the 4 counts on the indictment.

The evidence of HK and the New Zealand criminal history

1. This evidence concerned uncharged conduct, as alleged by the complainant, HK, by the accused in 1995, when the accused was aged 14 years.
2. The New Zealand criminal history concerns convictions of the accused in relation to conduct that occurred in 1996 and 1998 when he was aged 15 and 17 years old, respectively.

HK's allegations

1. The allegations raised by HK may be summarised for present purposes as follows. In 1995, when the accused was 14 years old and HK was 10, the accused allegedly was watching a pornographic movie with HK during the Christmas holidays. He started to play with himself and told HK to take off her clothes, to bend down on her hands and knees and pulled her underpants down. Thereafter he got her to crawl forward and he looked at her bottom before rubbing his fingers up and down her vagina. A later time in 1995, during the same holiday period, HK recalled him going into her bedroom, he allegedly touched her vagina with his fingers and rubbed the outside of her vagina before grabbing her hand and forcing her to masturbate him.

New Zealand history

1. As to what has been described as the accused's 'New Zealand criminal history', this evidence consists of a list of convictions, a redacted summary of facts, and a 'synopsis', or summary of a videotaped interview between the accused and police in Palmerston North conducted on 20 October 1998.
2. The Crown described the events giving rise to the New Zealand convictions as follows. The first victim, aged 5 years old, was being babysat by the accused. She made a range of complaints: the accused put his hand down her pants and penetrated her vagina with his fingers; applied medicated cream onto her vagina and rubbed her vagina; that he performed cunnilingus on her; that he pulled his pants down and rubbed his penis up and down outside the vagina before ejaculating on her body; that he attempted to penetrate her anus with his penis before masturbating and ejaculating; forcing her to perform fellatio upon him; placing the victim on her back whilst he was lying down and rocking her back and forth on his penis. Reference was made to the accused using lollies to bribe the victim.
3. The second victim complained of acts when she was aged between 7 and 10 years old. She complained of the accused putting his hand down her pants and fondling her genitalia. On a different occasion in a garage, he took her pants off and licked her vagina. Reference was also made to the victim being bribed with lollies.
4. The third victim, when aged 4, and again being babysat by the accused was asleep and awoken by the accused, who put his hand inside her pants and fondled her vagina. When she was out of bed, he stood her up and rubbed his penis up and down until he ejaculated.
5. The accused was sentenced to a period of imprisonment for the period from December 1998 to December 2002.

The Crown's submissions

1. The Crown submitted that the allegations involving HK indicated that the accused developed an interest in young girls, aged between 4 and 12, when he was still a juvenile. He sexually assaulted HK when she was 10. She was related (as step-sister to) the accused.
2. The Crown submitted that evidence of convictions in New Zealand were not proposed to be tendered for proof of the decision, or facts underlying the decision, but as an implied admission: R v Moussa [2017] NSWCCA 267. It was said that the convictions themselves were based upon guilty pleas. The New Zealand criminal history demonstrated the accused acting on his sexual interest in young girls aged between 4 and 12 years old. There were 3 complainants involved, and they were aged in the range between 4 and 10. They were siblings and children he babysat. In a record of interview with New Zealand police, he admitted that he had sexual fantasies about girls aged between 8 and 14.
3. The Crown submits that from 1995 (when the accused was 14) to 2017 (when the accused was 35), the accused has demonstrated his sexual interest in girls aged between 4 to 12 years and has been prepared to act on that sexual interest by touching them and sexually assaulting them. Allowing for the period where he was in jail in respect to the New Zealand offences (a 4 year period), it submits that whenever he has had access to a female, in an extended family or family sense, the accused has used the opportunity to abuse her. The Crown submits that there was a high degree of similarity as between 5 complainants over this entire period.
4. In response to the accused's reliance upon his age differential, between being a juvenile at the time of the alleged uncharged conduct (in 1995) and being an adult, or close to the threshold of adulthood (in 1998), the Crown referred to an admission made by the accused in his record of interview with the New Zealand police about his sexual interest in female children at the earlier point in time.

The accused's objections

1. The accused submits that the allegations of HK and convictions in New Zealand are so remote in time from the counts on the indictment as to be irrelevant. Further or alternatively, because of the time gap, they lack significant probative value.
2. The accused contends that evidence of the convictions in New Zealand was inadmissible under s 91 of the Evidence Act 1995 (NSW). He submitted that the Crown was intending to rely upon facts arising from the convictions.
3. Further, the accused contends that there is an important distinguishing feature as between the allegations by HK and the convictions in New Zealand, being the accused's age. It was submitted that there was a marked variation in the accused's level of emotional and sexual maturity then and now.

The Crown's submissions

1. The Crown submitted that the allegations of the complainants, on their own, may appear isolated, but the combined force of the complainants' evidence was considerable. Viewed in context, it was capable of satisfying a jury that it was more probable than not that he acted in the way alleged.
2. The Crown accepts that there is a 13 year time gap between the allegations of these complainants. It submitted that the authorities suggest that such distance in age do not foreclose the argument that the earlier conduct may manifest the tendency: RH v R [2014] NSWCCA 71 at [123]-[125].
3. The Crown referred me to the decision of the Court of Criminal Appeal in TB v R [2019] NSWCCA 224. In the circumstances of that case, the Crown sought to rely upon the evidence of one complainant about sexual misconduct as tendency evidence in the case of another complainant in events occurring 14 years later.
4. The Crown also submitted that in this case, as in TB, the accused's alleged conduct occurred at a time when he was an adult; the sexual activity involved acts of digital penetration; the conduct was opportunistic and arose in a context where the accused's opportunity, or access, to the complainant arose through a family connection or something like that.
5. Although the Crown could not point to evidence explaining why the tendency manifested up to 2004 endured up to 2017, it said that the opportunity available to the accused may not have arisen. It was said that events giving rise to the conduct against complainant TP involved his having a babysitting role. By 2017, when he was fully an adult, it was to be inferred that babysitting opportunities, or other opportunities for the accused to exert authority over young female children, were not likely to exist.
6. The Crown submitted that the accused's reliance upon McPhillamy v The Queen (2018) 361 ALR 13; [2018] HCA 52 does not assist him: the case was considered by the Court of Criminal Appeal in TB. Further, this case is distinguishable from McPhillamy because in that case, the absence of significant probative value was not indicated simply by a time gap, but also because of the accused having a different state of mind at the time of the earlier event said to indicate the tendency and the event giving rise to the charge.

The accused's submissions

1. The accused firstly submits that the gap in time between the events the subjects of Counts 1 & 2, and the event in Counts 3 & 4, being in excess of 13 years, is such that not even the relevance threshold under s 55 of the Evidence Act 1995 (NSW) is met.
2. Further or alternatively, the time gap is such that the gateway condition under s 97(1)(b) of 'significant probative value' is not met. The time gap is of such length that it cannot be said that the alleged acts perpetrated against JS in 2017 manifested the same tendency apparent in relation to the alleged events in 2004. There was no evidence to suggest that the suggested tendency was manifested in this 13 year period.
3. Unlike the gap between the alleged uncharged conduct involving the complainant HK (1995) or the events in New Zealand between 1996 to 1998 and the events that give rise to Counts 1 & 2, where there was a period of incarceration, there was an inexplicable gap between the conduct giving rise to the alleged offence in 2004 and the alleged offence in 2017. There was only an 'insinuation' (to use the word chosen by the High Court in McPhillamy at [32]) that any tendency manifest up to 2004 was also evident in 2017.
4. Counsel for the accused accepted that there were some common features as between the alleged offending in 2004 and 2017, but there were also one material difference: Count 1 concerned conduct 'in public' in a motor vehicle (and in the presence of other family or extended family members); whilst Counts 2-4 (inclusive) occurred in a bedroom, and therefore 'in private'.

Section 91

1. This provision relevantly provides that evidence of a decision in an overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. Section 91(2) of the Evidence Act also provides that evidence that is not admissible under Part 3.5 (including s 91(1)) to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.
2. In my opinion, the Crown is precluded by s 91 from seeking to use the accused's criminal conviction history referred to in paragraph 7 of its tendency notice, which convictions are thereafter annexed to that notice to prove the facts that the accused did previously engage, or to use a composite phrase, engage in sexual misconduct against female children.
3. In my view, it is also not permissible for the Crown to seek to use, as admissions, guilty pleas forming the substratum for conviction of offences, as admissions in and proof of its case on Counts 1 - 4 inclusive. Even if the evidence might be admissible pursuant to s 24 of the Foreign Evidence Act 1994 (Cth) as a business record, or some other exception to hearsay evidence, it is inherently unfairly prejudicial. If it was otherwise, then in any trial on indictment, an accused's prior convictions on the same or similar counts on the subsisting indictment could be used against him or her to prove that because s/he committed a criminal act on an earlier occasion, s/he was likely to have committed the same or similar criminal act on a later occasion. Although this is trial by judge alone, such evidence would be unfairly prejudicial to the accused.
4. I reject as inadmissible the tender of the accused's criminal history.
5. This does not, however, preclude the Crown from relying upon the synopsis of the interview he had with New Zealand police; nor the redacted statement of facts which, in my view, can be treated as a record of complaint by the complainants (but not for the truth of those complaints).

Section 97(1)(b)

1. 'Probative value' is defined in the Dictionary to the Evidence Act 1995 (NSW) as meaning: "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."
2. For the evidence to satisfy s 97(1)(b), the evidence has to rationally affect the assessment of the probability of the existence of a fact to a significant extent: Hughes v The Queen (2017) 344 ALR 187; [2017] HCA 20 at [16].
3. There is no requirement, as there was at common law, for the Crown to establish striking similarity: Hughes v The Queen at [58]. The requirements are for the Court to consider the extent to which: 1. the evidence supports the tendency; and 2. the tendency makes it more likely that the offence occurred: Hughes v The Queen at [41].
4. The authorities suggest that the totality of the evidence must be taken into account when assessing the strength of the probative value of the tendency evidence: Hughes v The Queen at [61]-[62]; BC v R [2019] NSWCCA 111 at [75]. By the terms of the provision, the question is whether the evidence could rationally affect a finding or findings of fact.
5. The Court is also to take the evidence at its highest and assume that the jury would accept the evidence: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [44], [49].
6. On the significance of time gaps, in Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 at [36], the Court of Criminal Appeal said that where the underlying tendency is operative over an extended period, its probative value is likely to be significant, even if the occasions upon which the accused acted on the tendency were few and far between. Where the tendency has been to abuse children within a particular range of ages, the time gap between the alleged acts may actually enhance the probative value of the tendency evidence: R v SK [2011] NSWCCA 292 per Latham J (Giles JA and Rothman J agreeing) at [26].
7. Further, although there is no pre-condition, as there was under the common law, for the Crown to establish striking similarity [2] , in my view the degree of similarity between the earlier conduct - in the way that the accused acts upon a tendency - and the conduct alleged remains a relevant and potentially weighty consideration. This is so even where there are differences between the conduct: RH v The Queen (2014) 241 A Crim R 1; [2014] NSWCCA 71 at [141]-[143].

New Zealand history

1. The High Court in Hughes v The Queen indicated that there was no precondition to the admissibility of tendency evidence that it possess a striking similarity with the conduct in issue so as to demonstrate a pattern.
2. I will deal firstly with the admissibility of the New Zealand history (disregarding the facts of convictions) and the tendency disclosed by that conduct between 1998 and its relevance to the conduct alleged, initially, in the alleged offending in 2004.
3. The accused was aged about 17 in 1998. Between the ages of 17 through to 23, it may be accepted that the development of a person's sexual and emotional maturity may fluctuate. In his record of interview, the accused described to police, in graphic detail, not only his interest in female children, but the nature of his sexual activity. This included his putting his hands down the pants of a female complainant and fingering her while she was sitting on his lap. There is a striking resemblance between that conduct and the conduct he is alleged to have engaged in that is the subject of Count 1 on the indictment. On other occasions, with the same complainant, he was with her in the bedroom, or even when they were watching television, when he would put his fingers inside her whilst she was sitting on his lap. This admitted abuse occurred whilst he was babysitting.
4. In relation to another complainant, he admitted to the police his going into a victim's bedroom, and deciding to abuse her by putting his hand down her pyjamas and putting his fingers in her vagina. That is conduct with similar features of Count 2 in relation to the offending in 2004.
5. The time gap between the offending conduct in New Zealand (1996 to 1998) and the alleged offending in 2004 is not considerable; particularly when account is taken of the 4 year period of incarceration. I am satisfied that the commonality as between the features of the conduct admitted to by the accused whilst in New Zealand and the alleged conduct in 2004 are such that there is significant probative value in the evidence of those admissions as disclosing a tendency that manifested itself in 2004. For reasons that I elaborate further below, it is also significantly probative of the tendency manifest in 2017.
6. Save for the evidence of the facts in the convictions, what I call the accused's "history" in New Zealand is admissible as tendency evidence to all counts on the indictment.

HK's allegations

1. This brings me to the allegations of HK concerning events occurring in the Christmas holidays in 1995, when the accused was a juvenile (aged 14). The accused was not an adult man at the time of the alleged conduct. The age gap between himself and the complainant, HK, was reduced, in comparison with the age gap between himself and the complainants in 2004 and, most obviously, in 2017, respectively.
2. But there were numerous common features as well. HK complained that in 1995, the accused was given a babysitting responsibility over a 10 year old girl. Amongst other things, he told her on one occasion to pull down her underpants and crawl forward on her knees so that the accused could observe her. He allegedly penetrated her vagina with his fingers. Separately, during the same holidays in 1995, he allegedly went to her bedroom, asking that she crawl naked and touched her in and outside the vagina. This alleged sexual misconduct is mirrored in Count 2 on the indictment in relation to the alleged conduct against the complainant, TP, in 2004; also occurring at a time when the complainant was someone known by him through family and when the accused had some level of supervision over her. Aside from the age of the female victims, a common feature as between the alleged conduct identified by HK and the conduct alleged in relation to the 2004 and 2017 events is the accused's proximity to or oversight in relation to female children whom he knew through family or other acquaintance; the associated vulnerability of the children and the opportunity for him to act on his sexual interest. Although there were not insubstantial differences in age, I accept the Crown's submission, in effect, that his sexual interest in female children near or under his care, and his acting on that interest upon vulnerable female children in a family (or near family) context, may be viewed as a continuum commencing when the accused was a juvenile.
3. HK's allegations are admissible as tendency evidence in relation to all four counts.

Cross-admissibility

1. In The Queen v Bauer, the High Court observed (at [58]) that the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. There is a need for some common feature of or about the offending before the requirement of significant probative value is satisfied.
2. However, as noted, consideration of the question whether tendency evidence passes the gateway of s 97 requires the evidence to be considered, by itself, but also to other evidence which is to be adduced. In this way, evidence which may itself lack probative value may be reinforced by other tendency evidence: Hughes v The Queen at [62].
3. The Crown correctly identifies several common features as between the offending: the accused was an adult; the alleged misconduct was perpetrated against female children of a narrow age range; the sexual activity involved digital penetration of the vagina of each complainant; and the alleged offending occurred in the context where the accused was familiar with each complainant by reason of family or extended family. The 'link' between earlier conduct relied upon to tendency and the alleged offending conduct, constituted by common features, is satisfied. To that extent, McPhillamy is distinguishable.
4. That then leaves the concern about the differential in the accused's age in 2004 and 2017, where there is an absence of evidence to indicate that the accused acted on the asserted tendency in the intervening period.
5. If I was to consider the offending in 2004 alone as disclosing a tendency which was manifested in 2017, the age gap between the period of offending would, as it did in McPhillamy, substantially dilute the probative value of the tendency manifested in 2004 to proving the conduct in 2017.
6. However, such approach is, as the authority of Hughes v The Queen indicates, inapposite. In my view, if there are common features between conduct in 1995 and conduct in 2017, the lapse of time may not avail the accused. Viewed as a whole, the accused's admission of his sexual interest in female children, made in 1998 but referable to events in the preceding 3 years, his engagement in a reasonably similar pattern of sexual misconduct (involving digital penetration or touching of the genitals of the female complainants) with the conduct alleged in 2004, and again in 2017, tends to show that his sexual interest in female children, developed throughout adolescence, has continued through to adulthood. Although the opportunity for the accused to engage in the alleged misconduct in 2004 and in 2017 may have differed, and although the circumstance that part of the offending in 2004, occurring as it did 'in public', the probative value remained significant: the accused's alleged conduct could still be characterised as opportunistic and probably also might be regarded as brazen.
7. I accept that it is inappropriate to speculate as to the reasons for the tendency not manifesting between 2004 and 2017, but nevertheless, the circumstances of 2004, viewed in the context overall of common features that were apparent back to 1995, are such that the unexplained time gap does not mean that the 2004 conduct has no significant probative value to the issues whether the 2017 conduct occurred as alleged.
8. The tendency evidence is admissible as between the complainants.

Endnotes

1. This concession is made in the light of the High Court's decision in The Queen v Bauer (2018) 92 ALJR 846; [2018] HCA 40 at [60].
2. Hughes v The Queen at [37]-[39].

Amendments 13 May 2020 - Correction of minor typo. 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: 13 May 2020