Evidently, her Honour was persuaded, by analogy with R H B, that there is sufficient 'peculiarity' in this case in that the alleged offending was committed against prepubescent female children of similar age, in relation to whom the applicant stood in loco parentis, in his own home, when other persons were close by with consequent risk of detection, and that the offending was in each case of a not dissimilar nature, constituted of touching the complainant's genitalia, albeit that in one case but not the other there was actual penetration.
With respect, we are not sure that we would have reached the same conclusion. As at present advised, we are inclined to think that her Honour may have pressed the analogy with R H B a little too far. Despite the similarities between the two cases, there are also some important differences.
To start with, in R H B, there was not just one previous occasion on which the perpetrator was alleged to have offended against another complainant, but three. And as was said then:
It does not follow from the fact that, because in this case there are three occasions of prior offending which are regarded as relevant to and probative of the charged act, in another case one previous act of offending would be regarded as relevant and probative of the act which is charged in that case.
Secondly, in R H B the relevance of the prior offending was not just that the perpetrator had in the past offended against his female lineal descendants but that he had done so in a particular way, albeit perhaps that it was not particularly striking. Here, there is not the same degree of particularity as there was R H B, if only because in this case there was penetration of one complainant but not of the other.
Thirdly, in R H B the perpetrator's modus operandi of approach to each complainant was virtually identical, whereas in this case one incident of the alleged offending arose out of what might otherwise have been seen as an innocent act of parental care and the other incident occurred in a different and more inexplicable context.
As Redlich JA warned in R R v The Queen, when it comes to the admissibility of propensity evidence, one must be careful to ensure that the features of commonality or peculiarity which are relied upon are significant enough logically to imply that because the offender committed previous acts or committed them in particular circumstances, he or she is likely to have committed the act or acts in issue. Otherwise, there is the danger of admitting evidence as tendency evidence simply because that evidence suggests that the accused is or was the sort of person who is more likely to commit the kind of offence with which he is charged.[30]