Stenner-Wall v R

JUDGMENT

1. BEECH-JONES CJ at CL: The circumstances and statutory provisions governing this appeal are set out in the judgment of Button J.
2. The Crown's notice of appeal identified the (alleged) decisions appealed from as (i) a ruling that the tendency evidence sought to be adduced by the Crown was not admissible; and (ii) a ruling severing counts 16 and 17 from the indictment (which relate to the complainant identified as "Thea" in the judgment of Button J) from the rest of the indictment. The second of these decisions can be the subject of an appeal under s 5F(2) of the Criminal Appeal Act 1912 (NSW). The first of the decisions can be the subject of an appeal under s 5F(3A) of the Criminal Appeal Act provided that the decision or ruling on admissibility eliminates or substantially weakens the prosecution's case. In this case, that issue was conceded. However, precision is required in identifying what that "ruling", if any, was.
3. As noted by Button J, the tendency notice identified the alleged tendency of the respondent that is relied on in the following terms: "The crown asserts the accused has a tendency have [sic] a particular state of mind namely, to have a sexual interest in girls aged between 14-16 years old. The crown further asserts that the accused has a tendency to act upon his sexual interests by acting in a particular way, namely to continue engaging in sexual touching and digital penetration of girls aged between 14-16 years old in circumstances where the girls have indicated the sexual touching and digital penetration is unwelcome."
4. The tendency notice also identified the evidence the subject of the notice as being the "evidence of each complainant [that] is cross admissible in the trials relating to the other complainants". The notice identified parts of the statement of each complainant in support of all 20 counts that subsisted at the time of the notice and the 17 counts that were included in the indictment presented at the trial. This included the evidence of "Felicity" to the effect that the respondent had penile/vaginal intercourse with her as alleged by count 2 and forced her to fellate him as alleged by count 5. It also included the evidence of "Thea" that the respondent had penile/vaginal intercourse with her without her consent as alleged by count 17. The submissions at the trial reveal that the Crown maintained the position that the evidence in support of all the counts on the indictment were admissible as tendency evidence on all other counts in the indictment.
5. As noted by Button J, on the fourth day of the trial and in the absence of the jury, the trial judge refused leave to the Crown to amend the tendency notice. After hearing submissions her Honour announced, "I have determined that this jury must be discharged, that there must be a separate trial in relation to the third complainant" (i.e. Thea). Her Honour then discharged the jury. Her Honour's pronouncement did not contain any "decision or ruling" on the admissibility of evidence. However, the following day, her Honour produced written reasons which are summarised by Button J. The reasons conclude by stating that the "interests of justice dictate that [the respondent's] trial on counts 16 and 17 of the current indictment proceed separately", thus reflecting the decision to sever the indictment. As best as I can ascertain, the evidentiary ruling that necessitated that severance was as follows: "I do not accept that the tendency evidence has significant probative value. Even if I am wrong in that respect, the balancing exercise under s 101(2) would lead to the exclusion of the evidence for tendency purposes."
6. Consistent with the manner in which the tendency notice was drafted and how the Crown conducted the trial, the "tendency evidence" the subject of this "ruling" was all of the evidence identified in the tendency notice from all three complainants concerning all counts on the indictment. Leaving aside its attempt to amend the tendency notice, at no stage before the trial judge did the Crown contend for any position other than that the evidence of all three complainants on all the counts was admissible as proof of both tendencies on all other counts in the indictment. The "ruling" noted above rejected that absolutist position. Her Honour then severed counts 16 and 17 (which concerned Thea) from counts 1−15 (which concerned Felicity and Sally) because of the possibility of there being "some legitimate forensic purpose for pursuing a joint trial" concerning the latter two complainants. This observation does not constitute a ruling precluding the use of at least some of the evidence in support of the counts concerning Felicity and Sally as tendency evidence in any joint trial concerning those two complainants.
7. In this Court, the Crown contended that the trial judge misconstrued the tendency notice as restricting the age of the girls referred to as exactly 16 years old and below, and thus excluding Thea who was 16 years and one month at the time she was said to have been sexually assaulted by the respondent. However, the Crown did accept that the reference to "sexual touching and digital penetration" in the second tendency identified in the above notice did not include the act of penile/vaginal intercourse the subject of count 17 (which involved Thea). [1] This means that the evidence of Thea in support of that count is not evidence of that tendency and was not available to be used as evidence in support of that tendency at any hypothetical joint trial of all counts involving Felicity, Sally and Thea [2] (and could not be used as evidence in support of that tendency at any separate trial of counts 1−15 concerning Felicity and Sally). It also follows from that concession that the evidence of Felicity in support of counts 2 and 5 is not evidence of the second tendency identified in the notice. Thus, like count 17, the evidence adduced in support of counts 2 and 5 is not available to be used at any hypothetical joint trial of all counts involving Felicity, Sally and Thea, [3] and could not be used as evidence in support of that tendency at any separate trial of counts 16 and 17 concerning Thea. No such concessions or anything to a similar effect was made before the trial judge.
8. What follows from this revised evidentiary landscape? As noted, the evidence of Thea adduced in support of count 17 could not support the second tendency, although it might support the first tendency if the age range includes girls aged 16 years old. There is also the possibility that the evidence of Thea in support of count 16 might support the second tendency, which in turn might be used to support the Crown case on those of counts 1−15 which are contested. In this Court, the Crown did not put its case for re-joining the counts on the basis that counts 16 and 17 should be available to support counts 1−15 but vice versa. Thus, according to the Crown, the "question [is] whether or not the evidence of [Felicity] and [Sally] was admissible in the trial related to [Thea]". In oral argument in this Court the Crown submitted as follows: "[Crown]: The first limb of the tendency is relevant to both counts 16 and 17 we say. Sorry both limbs of the tendency are relevant to establishing count 16 which was an allegation of digital penetration and the second limb of the tendency was relevant to establishing - sorry the first limb of the tendency was relevant to establishing count 17 but the process of reasoning in my submission that the Crown is entitled to embark upon in this context in relation to [Thea] is to say members of the jury you would find that the tendencies alleged by the Crown have been established, those tendencies make it more likely that he committed the act alleged in count 16 which is the allegation of digital penetration in the context of persistence overcoming resistance. And having been satisfied in relation to [Thea] that the applicant committed count 16 that is relevant to consideration of count 17. And so it was a legitimately - there was a basis for joinder in my submission. BEECH-JONES CJ at CL: Alright so to respond to Button J's question you say well yes we accept the evidence on count 17 couldn't form part of the tendency evidence but the evidence of counts 1 to 15 could be tendency evidence in respect of counts 16 and 17. Is that right? [Crown]: Yes."
9. However, as explained, the effect of the manner in which the tendency notice is drafted is that, on any joint trial of all counts, none of the evidence in support of counts 2, 5 and 17 could be used to support the second tendency. At any such trial, the jury would have to be instructed that they could consider all the evidence in support of all of the counts in support of the first alleged tendency but must put aside the evidence adduced in support of counts 2, 5 and 17 as evidence in support of the second alleged tendency. Based on the above submission, the jury would have to be further instructed that, if both alleged tendencies were established, the jury could use them to support all of the contested counts other than counts 2, 5 and 17 and, if satisfied of any particular count concerning any particular complainant, they could supposedly use that satisfaction in their consideration of counts 2, 5 and 17 as the case may be. Assuming the correctness of the latter step, of which I am doubtful, then prejudice nevertheless inures in the first step; i.e. directing the jury that they could only use evidence that the respondent had penile/vaginal sex with Felicity, forced Felicity to fellate him and had non-consensual penile/vaginal sex with Thea as evidence of the first tendency but must not consider it as evidence of the second tendency.
10. The danger of misuse of evidence is the essence of the prejudice referred to in s 101(2) of the Evidence Act 1995 (NSW) (see Papakosmas v The Queen (1999) 196 CLR 297; [1997] HCA 37 at [91] per McHugh J). Generally, juries can be expected to follow directions, but a direction requiring them to reason in the manner just explained (which is required by the drafting of the tendency notice) faces a significant prospect of being ineffective. Instead, there is a real likelihood of the jury using the evidence adduced in support of counts 2, 5 and 17 to support the existence of the second tendency.
11. Given the way the notice was drafted and the manner in which the trial was conducted at first instance, this Court must address the appeal on the basis of the Crown conducting a joint trial of all the counts on the current tendency notice. Accordingly, I agree with Button J that, irrespective of whether the trial judge erred in the applying s 97A and assuming that the "tendency evidence" had the probative value asserted by the Crown, her Honour was correct to reject "the tendency evidence" on the basis identified in s 101(2) of the Evidence Act. It further follows that, bearing in mind the form of the tendency notice, her Honour was correct to sever counts 16 and 17 from the balance of the indictment which contained counts 2 and 5.
12. Lastly, I noted that neither ss 5F(2) or (3A) of the Criminal Appeal Act requires the Director of Public Prosecutions to obtain a grant of leave to appeal. That is a pity in this case because much of the difficulty with this appeal arises out of the form of the tendency notice relied on. An application to amend the tendency notice was refused by the trial judge because it was late and the trial was underway. That refusal is not the subject of the appeal, and the rationale for the refusal appears to have at least diminished since the trial was aborted. This has resulted in the rulings the subject of this appeal (and the outcome of the appeal) having a contingent quality in that they are, or at least appear to be, dependent on the form of the alleged tendency specified in the tendency notice, the counts that are said to support each alleged tendency, the manner in which the Crown put its case and the timing of the trial.
13. All these matters might warrant a refusal of leave to appeal if that power were available. However, there is no such power. Nevertheless what follows from these difficulties is that this case is a wholly unsuitable vehicle for undertaking an exegesis concerning the construction and application of s 97A of the Evidence Act, including any identification of the type of circumstances that might amount to "exceptional circumstances" for the purposes of s 97A(5). That said, one concession made by the Crown concerning those provisions should be noted.
14. In this Court, the Crown accepted that "exceptional circumstances" may be established where the particular circumstances of one or more of the matters identified in s 97A(5) are such that they demonstrate the absence of significant probative value on the part of the subject evidence; i.e. in a particular case, the particular feature or features identified in s 97A(5)(a)−(g) may be so strong in terms of their bearing upon an assessment of probative value that they warrant the description "exceptional". [4] This concession was well-founded and is reflected in the words "exceptional circumstances in relation to those matters" in s 97A(5). Thus, for example, while it may be the case that a sexual interest that constitutes a tendency does not have to demonstrate distinctive or unusual features (s 97(5)(f)) and need not be described with specificity (s 97(5)(g)), a tendency of, say, a 23-year-old male to be sexually attracted to females aged between 18−20 years old may be so lacking in any distinctive or unusual features and be so generally expressed that s 97A(4) is nevertheless satisfied.
15. I agree with the orders proposed by Button J.
16. BUTTON J:

Background This judgment resolves an appeal brought by the Crown pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW) regarding a ruling made by a judge about tendency evidence and the resultant severance of counts in the course of a trial in the District Court sitting at Newcastle. A chronological sketch is as follows.

1. Mr Jay Stenner-Wall ("the respondent") was arraigned on 26 September 2022 before Acting Judge Latham and a jury panel on an indictment containing 17 counts (one of which was in the alternative). The counts related to sexual offences alleged to have been committed against three females, two of whom were alleged to be under the age of 16 years at the time of the offences, and one of whom was said to be just over that age. Counts 1 to 10 related to the first complainant ("Felicity"), counts 11 to 15 related to the second complainant ("Sally"), and counts 16 and 17 related to the third complainant ("Thea").
2. According to a table provided to this Court by counsel for the respondent, and not disputed by the Crown, at the time of the alleged offending against Felicity, she was aged between 14 years 3 weeks and 14 years 5 months, and the respondent was aged between 18 years 1 week, and 18 years 3 ½ months.
3. At the time of the alleged offending against Sally, she was aged 15 years 11 months, and the respondent was aged 19 years 10 months.
4. At the time of the alleged offending against Thea, she was aged 16 years 1 month, and the respondent was aged 20 years 3 ½ months.
5. As the annotated indictment marked MFI 1 given to the jury during the opening address of the prosecutor with the consent of defence counsel and annexed to this judgment (with redactions) shows, the respondent pleaded not guilty to some counts, and guilty to others.
6. Furthermore, with regard to some counts to which he had pleaded guilty, he accepted that he had committed an offence by having sexual contact with a person under the age of consent, but asserted that he had done so "with her permission and without any force" or "willingly [on the part of the complainant], without any force" (I interpolate that every act of sexual contact with a person under the age of consent inherently occurs without their consent, but that is not to say that the distinctions sought to be drawn by the respondent were not available).
7. As can be seen from the annexed document, regarding count 11, the respondent also disputed a physical aspect of the admitted sexual touching.
8. With regard to count 13, a plea of not guilty was entered; as I understand the annotation, the respondent denied that he had sexually touched the complainant, and asserted that in fact she had touched him.
9. In answer to count 14, a plea of not guilty was entered, but a plea of guilty was entered to the alternative count 15, on the basis that there had been sexual contact, but it had been "with the complainant's permission".
10. As for all other counts to which a plea of not guilty had been entered, the notation was that the position of the respondent was that the physical elements of the offence "did not occur".
11. During the opening address of the prosecutor nothing was said to the jury about any use that could be made of the evidence about one count as tendency evidence in support of any other count.
12. In her opening address, defence counsel raised character. She also explained the various bases of the pleas of guilty and not guilty, in accordance with the annotated indictment. When discussing the multiplicity of charges pertaining to the three complainants, defence counsel said to the jury that "when you're thinking about those charges, keep in mind that he is admitting some of that conduct but he disputes the context of some of the things that he admits in terms of what the complainants say has occurred".
13. Again, nothing was said in that opening about the use of anything alleged about one offence as tendency evidence in support of another offence, whether within the evidence of one complainant, or between the evidence of the three of them.
14. After the opening addresses and in the absence of the jury, the learned trial judge said that she was "struggling a bit" with the tendency notice. I turn to discuss important aspects of it.
15. That document was dated 23 May 2022. It gave notice of reliance by the prosecution on tendency evidence only (as opposed to coincidence evidence). It spoke of the intention of the Crown to conduct "a single joint trial with the three complainants", in the context of a (then) 20-count indictment. Under the heading "The Tendency", the following appears: "The crown asserts the accused has a tendency have [sic] a particular state of mind namely, to have a sexual interest in girls aged between 14-16 years old. The crown further asserts that the accused has a tendency to act upon his sexual interests by acting in a particular way, namely to continue engaging in sexual touching and digital penetration of girls aged between 14-16 years old in circumstances where the girls have indicated the sexual touching and digital penetration is unwelcome."
16. Later, the document goes on to assert that "the evidence of each complainant is cross admissible in the trials relating to the other complainants". It makes clear that that means that, in the trial relating to any one complainant, the evidence of the other two complainants is "cross admissible as tendency evidence".
17. The facts in issue to which the proposed tendency evidence is said to relate is identified by the notice as including "[w]hether [the respondent] committed acts of sexual intercourse and sexual/indecent touching of the three complainants, [named by pseudonyms].
18. The discussion between the trial judge and the prosecutor concluded at that stage, with her Honour saying "I just want to see how the evidence falls from the complainants and we'll get to the end of the trial and we can revisit this at some point."
19. The following day, Felicity gave evidence, but the trial was adjourned early for a reason not presently relevant.
20. The following day, 28 September 2022, in the absence of the jury the trial judge returned to discussing with the prosecutor concerns about the directions that would need to be given about the use of the tendency evidence. Her Honour asked both parties to consider their positions. The jury was sent away for the day, and submissions and discussions continued.
21. On 29 September 2022, an application was made by the prosecutor to amend the tendency notice. It was refused by the trial judge. Her Honour confirmed that "we should proceed on the basis that the tendency notice filed on 23 May [2022] is the operative one for the purposes of this argument". A little later, the trial judge said "I have determined that this jury must be discharged, that there must be a separate trial in relation to the third complainant". On the same day, the jury was duly discharged.
22. The following day, her Honour delivered a judgment explaining what had led to that course. I proceed to summarise it briefly.
23. It commenced with the background to the matter, including a summary of the counts; the pleas of guilty and not guilty entered; and the fact that, in an interview with police, the respondent had denied the commission of counts 16 and 17 (which, it will be recalled, relate to Thea). The judgment went on to record that, when interviewed in August 2020, the respondent claimed that he "was still a virgin", which I take to mean in this context a person who had never experienced penile/vaginal sexual intercourse, with consent of the other person or otherwise.
24. The judgment went on to record that the sole basis for the joinder of the counts pertaining to the three complainants was the proposed use of their evidence as tendency evidence.
25. It went on to discuss three highlighted aspects of the tendency notice. First, the respondent's sexual interest, and tendency to act upon that interest, is particularised by reference to girls aged between 14 and 16 years. Second, the tendency is stated to manifest solely through sexual touching and digital penetration. Third, the circumstances in support of the tendency are strictly confined to the complainants indicating that the sexual touching and/or digital penetration are "unwelcome".
26. Her Honour noted her interpretation that the tendency notice did not comprehend acts of fellatio (count 5) or non-consensual digital penetration (count 14), or indeed any sexual conduct with a female who had turned sixteen, such as Thea. The tendency notice nevertheless included references to those parts of the complainants' statements alleging fellatio and penile/vaginal intercourse, within the substance of the tendency evidence that the prosecution intended to adduce.
27. The judgment proceeded to consider whether the proposed tendency evidence possesses "significant probative value", as required by s 97 of the Evidence Act 1995 (NSW), in light of s 97A of the same Act, which was in force by that time. For convenience, I set out those two sections in full: 97 The tendency rule (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, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party. 97A Admissibility of tendency evidence in proceedings involving child sexual offences (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. (6) In this section - child means a person under 18 years of age. child sexual offence means each of the following offences (however described and regardless of when it occurred) - (a) an offence against, or arising under, a law of this State involving sexual intercourse with, or any other sexual offence against, a person who was a child at the time of the offence, or (b) an offence against, or arising under, a law of this State involving an unlawful sexual act with, or directed towards, a person who was a child at the time of the offence, or (c) an offence against, or arising under, a law of the Commonwealth, another State, a Territory or a foreign country that, if committed in this State, would have been an offence of a kind referred to in paragraph (a) or (b), but does not include conduct of a person that has ceased to be an offence since the time when the person engaged in the conduct.
28. Section 101 of that Act was also referred to, as it had become by then: (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (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 outweighs the danger of unfair prejudice to the defendant.
29. Relatedly, ss 21, 29 and 29A of the Criminal Procedure Act 1986 (NSW) were and are as follows: 21 Orders for amendment of indictment, separate trial and postponement of trial (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case. (2) If of the opinion - (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment. (3) If of the opinion that the postponement of an accused person's trial is expedient as a consequence of it having amended an indictment or ordered a separate trial of a count, the court may make such order as appears necessary. (4) An order under this section may be made either before trial or at any stage during the trial. (5) The following provisions apply if an order is made under this section for a separate trial or for the postponement of a trial - (a) if the order is made during the trial, the court may order that the jury be discharged from giving a verdict - (i) on the count or counts in respect of which the trial is postponed, or (ii) on the indictment, as the case may be, (b) the procedure on the separate trial of a count, and the procedure on the postponed trial, are to be the same in all respects (if the jury has been discharged) as if the trial had not commenced, (c) subject to the Bail Act 2013, the court may commit the accused person to a correctional centre. (6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes. 29 When more than one offence may be heard at the same time (1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances - (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances - (a) the accused persons and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice. 29A Tendency or coincidence - offences to be heard together (1) A court must hear and determine together proceedings for 2 or more offences if - (a) the offences are alleged to have been committed by the same person, and (b) the offences are - (i) charged in the same indictment, or (ii) listed for hearing on the same day and at the same place, and (c) the prosecution has given notice that it intends to rely on tendency evidence or coincidence evidence that relates to more than 1 of the offences. (2) This section is subject to section 21(2).
30. The judgment went on to identify the "starting point" as being "whether there are sufficient grounds upon which to displace the presumption [in s 97A] and find that the tendency evidence does not have significant probative value".
31. In that regard, it was noted that the Crown had accepted that the first asserted tendency had been "admitted by those pleas", referring to the pleas of guilty that had been entered by the respondent in the presence of the jury panel. It was also said that acceptance by the respondent of the circumstances in which he came to meet the three complainants - by way of social media, whilst misrepresenting his age - played the same role.
32. The trial judge went on to say that "an 18 year old male having a sexual interest in females 3 to 4 years younger may be regarded as entirely normal". That led to the proposition that "the banality of the asserted tendency deprives it of the particular probative force which is the rationale for the use of tendency evidence", and thereafter references to the well-known decisions of the High Court of Australia in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 (at [57]-[60]) and The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 (at [58]).
33. The trial judge recounted that the aspects said to "link the three complainants together" was the initial contact through social media, the respondent allegedly having made sexual advances "despite being told to stop", and the sexual touching and digital penetration of the complainants. It was said that "there is nothing improbable, having regard to ordinary human experience, about these features that increases the likelihood that the accused committed all the offences in the indictment".
34. Her Honour went on to find that there were "exceptional circumstances" that permitted consideration of the factors that appear in s 97A of the Evidence Act. The circumstances were said to be "that it [the tendency evidence] is sought to be used in the context of normal social interactions between teenagers which resulted in some admitted sexual conduct, the only issue being the extent of that sexual conduct and whether some of it was consensual".
35. The ultimate findings were that there were exceptional circumstances that permitted consideration of the factors in s 97A, the statutory presumption was overcome, the tendency evidence did not possess significant probative value, and it was therefore inadmissible at the first phase of the statutory test.
36. It was made clear that, even if that finding were erroneous, there would be exclusion pursuant to s 101(2) of the Evidence Act. In that regard, it was said that there was "a real, not speculative danger, that the jury will attribute disproportionate weight to the tendency evidence". It was said that the asserted "tendency interest" of the respondent could hardly be regarded as "unusual or eccentric". In answer to a submission of the prosecutor that a jury can be taken to obey judicial directions, reference was made to the decision of this Court in R v Allen [2020] NSWCCA 173, in support of the proposition that such directions are not "an unfailing panacea for all forms of prejudice".
37. The conclusion of the judgment noted that defence counsel had sought only that the trial pertaining to Thea proceed separately. In other words, the consent position was that there would be a joint trial in which the one jury would hear the allegations of Felicity and Sally together (I presume on the conceded basis that the evidence of each was admissible as tendency evidence in support of the evidence of the other).
38. The ultimate finding in the judgment was that "the interests of justice dictate that his trial on counts 16 and 17 of the current indictment proceed separately".
39. Finally by way of chronology, this Court was told that the two trials are currently listed to proceed in November of this year.

The appeal to this Court

1. The Crown relied on three proposed grounds of appeal against the ruling: Ground 1: That the trial judge erred in determining that there were exceptional circumstances under s 97A(5) Evidence Act 1995, so as to warrant taking into account the matters in s 97A(5)(a), (f) and (g). Ground 2: That the trial judge erred in determining that the tendency evidence did not have significant probative value. Ground 3: That the trial judge erred in determining that the probative value of the evidence did not outweigh the danger of unfair prejudice, per s 101(2) Evidence Act 1995.
2. In written submissions for the Crown, it was emphasised that the ruling of the trial judge with regard to the tendency evidence sought to be adduced substantially weakens the Crown case: see s 5F(3A) of the Criminal Appeal Act 1912. The respondent conceded this aspect.
3. The first two grounds of appeal were dealt with together in the submissions of the Crown, as follows.
4. As stated above, the two asserted tendencies proposed in the adduced tendency notice were identified separately as follows: 1. A tendency to have a particular state of mind, namely to have a sexual interest in girls aged between 14 and 16 years old; 2. A tendency to act upon his sexual interests by acting in a particular way, namely to continue engaging in sexual touching and digital penetration of girls aged between 14 and 16 years old in circumstances where the girls have indicated the sexual touching and digital penetration is unwelcome.
5. In written submissions, however, the Crown argued that the trial judge erroneously elided the two tendencies, placing particular focus on the first at the expense of the second. Attention was drawn to paras [17]-[18] of her Honour's judgment, in which the asserted tendency was described as "banal". "[17] In the light of the accused's admissions with respect to three counts concerning [Felicity] and three counts concerning [Sally], it is accepted by the Crown, that effectively, the accused's tendency to have a sexual interest in girls aged between 14 and 16 has been admitted by those pleas and by the accused's acceptance of the circumstances under which he came to meet them, that is, his use of social media and his misrepresentation of his age for the purposes of attracting girls within that age group. That is hardly a startling proposition; an 18 year old male having a sexual interest in females 3 to 4 years younger may be regarded as entirely normal. In 2022, neither that sexual interest nor an inclination to act upon it would cause revulsion in a jury of the type often aroused by allegations of sexual conduct with or towards infant children by mature-age males. [18] In other words, the banality of the asserted tendency deprives it of the particular probative force which is the rationale for the use of tendency evidence…" (emphasis added)
6. The Crown criticised her Honour's finding of exceptional circumstances based on the characterisation of the respondent's behaviour as "entirely normal"; the respondent's alleged repeated insistence on engaging in sexual conduct, notwithstanding the clear verbal and physical resistance from all complainants, could not reasonably be described as mere ordinary social interaction between teenagers.
7. It was also argued that the subject of tendency evidence, and the charged acts, need not necessarily be unusual as a matter of ordinary human experience in any event. Despite her Honour's reference to Hughes v The Queen at [57]-[60] as authority for the requirement of "abnormality" for the probative force of tendency evidence, the Crown did not accept this as being a general rule. Rather, it was said, the observations made by the High Court in that case were specifically directed to the tendency evidence sought to be adduced in those proceedings.
8. Regarding her Honour's observations on the scope of the second tendency, the Crown submitted that the trial judge had misunderstood it. It was conceded during oral submissions that count 17 could not be used to prove the second tendency, as the alleged penile/vaginal penetration that was its centrepiece falls outside the respondent's asserted tendency to have digital penetration in circumstances that are unwelcome. The evidence of counts 1 to 15, however, could be tendency evidence in respect of counts 16 and 17, it was submitted.
9. The Crown argued that her Honour's finding that the tendency notice did not comprehend "non-consensual digital penetration" or "any sexual conduct with a 16 year old girl" misinterpreted the meaning of the word "unwelcome" as necessarily excluding any consideration of conduct that occurred without consent, and also misinterpreted the phrase "girls aged between 14-16 years old" as excluding a female who had turned 16.
10. It was maintained throughout both written and oral submissions that the probative value of the evidence sought to be adduced was in fact extremely high, exceeding that presumed by s 97A(2) of the Evidence Act. The following features were emphasised: 1. The offending occurred over a relatively short period of time (as the annotated indictment shows, between April 2017 and July 2019). 2. The complainants were each 4 years younger than the respondent. 3. The respondent had encountered and communicated with each complainant on social media before meeting them in person. 4. All complainants had allegedly expressed to the respondent that they did not wish to engage in sexual conduct, and the respondent nevertheless persisted in each case. 5. The offending conduct against each complainant was broadly similar.
11. Counsel for the respondent submitted, on the other hand, that her Honour did not err in the identification of the scope of either asserted tendency. The fact that the respondent had pleaded guilty to a number of offences against Felicity and Sally, it was argued, resolved any potential dispute between the parties as to the existence of his sexual interest in girls aged between 14 and 16 years old. It was not significantly probative of any facts in issue.
12. The respondent also asserted that the trial judge was not mistaken in her observations regarding the particular phrasing of the second tendency: the asserted tendency did not capture those counts in which lack of consent was not an element, or any other acts distinct from the sexual touching and digital penetration specified in the notice. Her Honour's finding of exceptional circumstances that rebutted the presumption, it was submitted, was therefore not erroneous.
13. In so finding, the respondent argued that her Honour's determination regarding the question of probative value was correctly made. Speaking vey generally, the fewer distinctive or unusual features present in an asserted tendency, the less that tendency could impact upon the facts in issue. Ground 3: That the trial judge erred in determining that the probative value of the evidence did not outweigh the danger of unfair prejudice, per s 101(2) Evidence Act 1995.
14. The Crown asserted that the trial judge's consideration of s 101(2) of the Evidence Act 1995 was flawed in a number of respects.
15. First, it was submitted that her Honour did not, for the purposes of considering whether s 101(2) was enlivened, assume that the tendency evidence had significant probative value. Rather, her Honour returned to comment on the previously observed asserted banality of the asserted tendency interest: "[27] The accused's asserted tendency interest can hardly be regarded as unusual or eccentric. It is shared by a significant proportion of males in the accused's age group. The very point of his defence is that he did not act on that tendency on the occasions in issue, albeit he may have acted upon it with the consent of the complainants on other occasions. The risk is that if the jury engages in tendency reasoning, the accused's defence will be compromised, if not completely undermined." (emphasis added)
16. Second, the Crown submitted that the trial judge failed to have regard to whether any unfair prejudice might be cured, or ameliorated, by appropriate jury directions. In her Honour's reasoning, she had observed what was perceived to be an irreconcilable tension between the direction discussed in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 direction, which directs the jury that each count on the indictment must be considered separately, and the tendency direction. Her Honour noted that the tendency direction also asks the jury to focus on the question of proof for each count in issue, but, if they find that the accused has a particular tendency, the tendency can be used in considering whether it is more likely that they committed the specific offences. The Crown argued that no inconsistency between these directions exists in truth, and any perceived difficulty could be cured by setting out further evidence the jury must have regard to in considering their verdict (for example, the respondent's account of the offending, and his pleas of guilty), and directing the jury not to substitute their consideration of one count for that of another.
17. It was further submitted that the appropriate standard of appellate review in cases where the admissibility of evidence is disputed was the correctness standard. The decision of Basten JA in Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 was pointed to as authority for this proposition. No submissions to the contrary were made by the respondent on this point.
18. The respondent did, however, submit that there was a real risk that the tendency evidence would be used improperly, or in some unfair way. Reasons were given as follows: 1. The jury may struggle to apply properly various standards of proof such that adverse verdicts returned might be to a lesser standard. 2. Disproportionate weight may be placed on the tendency evidence to which pleas of guilty have been entered. 3. Adducing tendency evidence from Felicity and Sally in the trial concerning Thea will ultimately require the jury in that trial to become aware that the respondent has pleaded guilty to some offences that are a part of the basis of the second asserted tendency, and of the fact that the respondent has engaged in sexual contact with persons under the age of 16. 4. There is a risk that the jury may give the asserted tendency evidence of Thea disproportionate weight, when considering the counts against Felicity, which, in contrast to the former, do not contain any offences of which lack of consent, and knowledge thereof, are elements.

Determination

1. As I have said, it was not disputed for the respondent in this Court that the statutory precondition of the Crown case having been "substantially weakened" had been established.
2. As for the threshold question as to whether the standard of review is establishment of error at first instance or "correctness" (in other words, an evidentiary question to which there is only one right answer, and which members of this Court must consider for themselves), for the reasons given by Basten JA in Director of Public Prosecutions (NSW) v RDT, I respectfully tend to the latter. In particular, I think it would be incoherent and unwieldy if the correctness standard were applied to decisions about tendency and coincidence evidence after conviction (as to which, see The Queen v Bauer at [61]), but some other standard were applied to identical evidentiary rulings the subject of interlocutory appeals. But on either standard I would not interfere with the outcome at first instance, for the following reasons.
3. Turning to the nub of the matter: the appeal needs to be determined on the basis of the unamended tendency notice. As I have shown, it asserted two tendencies. To repeat for convenience: the first was to have a sexual interest in girls aged between 14 and 16 years of age. The second was "to continue engaging in sexual touching and digital penetration of girls" between those ages "in circumstances where the girls have indicated sexual touching and digital penetration is unwelcome."
4. It can be seen immediately that, whilst most of the counts on the indictment alleged sexual touching or digital penetration, several of them did not: counts 2, 5, and 17. In particular, count 17 alleged the penile/vaginal penetration of Thea. It is true that the evidence in support of that count could go to the first asserted tendency, bearing in mind that at the time of the alleged offence in count 17 Thea was aged 16 years 1 month (I read the age range spoken of in the notice inclusively). But as conceded orally by the Crown at the hearing in this Court, it could not go to the second tendency, because it was plainly not an allegation of sexual touching or digital penetration.
5. It may be accepted that it is established practice for a tendency notice to be expressed in that way: speaking first of a tendency to possess a certain state of mind in the form of a particular interest, and secondly of a tendency to act upon such an interest, usually by way of the commission of an offence. But the former is surely very subsidiary to the latter, in that, whenever a fact in issue is whether or not an offence has actually been committed, it will almost always be more probative that such an offence has been committed on another occasion, as opposed to the much more nebulous proposition that an accused person may have had an interest in committing such an offence.
6. Reflecting in that context on the two asserted tendencies, the way that the tendency notice is drafted means that, if the jury in the trial of the allegations of Felicity and Sally were to hear about the circumstances underpinning count 17, the jury would need to be directed that they were entitled to reflect upon those circumstances in support of the first asserted tendency, but must completely disregard those circumstances for any other purpose, including the second tendency.
7. In other words, a jury of laypersons would be told, when assessing whether the respondent had committed sexual offences against Felicity and Sally, to disregard completely evidence to the effect that the respondent had allegedly had penile/vaginal intercourse with a 16-year-old female, having held her down, pulled down her underwear, and whilst overcoming her continuing physical resistance during that intercourse (these details of the allegation were contained in the table provided by counsel for the respondent, again without dispute). The only exception to that prohibition would be upon the jury using it to reflect upon whether the respondent had an interest in girls aged 14 to 16 years, an interest that has been amply established by his pleas of guilty to many counts in open court.
8. The same stricture would apply to the use of the evidence of the alleged offences underpinning counts 2 and 5 pertaining to Felicity in the trial of Thea - they could go to the first tendency, but, by their nature, not the second.
9. The appeal, I respectfully think, can be resolved therefore on the straightforward basis that there is certainly a statutory presumption that the evidence underpinning count 16 and 17 possessed significant probative value as tendency evidence in support of the unadmitted allegations of Felicity and Sally, and (for the sake only of ready disposition of the matter) on the working assumption that nothing in s 97A(4) and (5) overcame that statutory presumption.
10. In other words, it can be assumed, without further analysis for the sake of disposition, that the evidence underpinning counts 16 and 17 had significant probative value as tendency evidence (in support of the first asserted tendency only) going to prove the commission of the various unadmitted offences against Felicity and Sally.
11. But I respectfully think that it is inconceivable that the jury could conscientiously use the evidence in support of count 17 in the trial of the allegations of Felicity and Sally in such a way that it is available to be reflected upon regarding the first tendency, but completely disregarded with regard to the second. Undoubtedly, the institution of trial by jury proceeds upon the assumption that juries obey directions from trial judges, but it is well known that that assumption can only be taken so far. Indeed, the very existence of the evaluative judgment in s 101 of the Evidence Act is a demonstration of the acceptance of that proposition by Parliament.
12. Neither party suggested that the counts pertaining to any complainant could be severed from each other; for example, that the jury in the counts pertaining to Felicity and Sally could hear evidence in support of count 16 (which did pertain to alleged digital penetration to which Thea did not consent to the knowledge of the respondent, and which therefore, in my opinion, could go to the second tendency as notified) but not the evidence in support of count 17 (which plainly could not).
13. My own assessment is therefore that, even assuming that the evidence pertaining to Thea had significant probative value as tendency evidence, the evaluative judgment to be found in s 101(2) of the Evidence Act readily called for exclusion of it from the trial of the allegations of Felicity and Sally.
14. It follows that, whether one applies a test calling for the establishment of error at first instance, or a test calling for one's own reflection on the correctness of the outcome, I agree with the order ultimately made by the trial judge, whereby the counts pertaining to Thea will be heard separately from the counts pertaining to Felicity and Sally. For that reason, I would dismiss the appeal by the Crown.
15. Finally, for the sake of clarity, I indicate that I respectfully disagree with many of the normative or evaluative assessments made by the trial judge about the feelings and behaviour of members of Australian society, including but not limited to young men, that appear in the first instance judgment. But because I consider that the outcome in this case was correct, albeit for different reasons, that respectful disagreement about the reasons for that outcome need not be taken further.

Orders

1. I propose the following order: 1. Appeal dismissed.
2. Given that these reasons are being published at a time that is close to the commencement of the trial they will not be published on Caselaw. To facilitate their being published more widely when the trial concludes I propose that a further order be made when these reasons are delivered requiring the DPP to advise the Court when the proceedings at first instance are complete.
3. Accordingly, I propose the following further order: (2) Within two weeks of the completion of proceedings at first instance, the Appellant notify the chambers of Button J accordingly.
4. HAMILL J: I am grateful to have had the opportunity to consider the draft judgment of Button J. I agree with his Honour that the appeal brought by the Director of Public Prosecutions against the orders made by Acting Judge Latham on 29-30 September 2022 should be dismissed.
5. As Button J reasons, this interlocutory appeal can appropriately be disposed of by reference to the correctness of the trial Judge's alternative approach to the evidentiary issue, namely that the particular tendency evidence was inadmissible because its probative value did not "[outweigh] the danger of unfair prejudice to the defendant" (Evidence Act 1995 (NSW) s 101(2)) and that counts 16 and 17 should be severed from the indictment and be subject to a separate trial. My reference to "the particular tendency evidence" is a reference to the evidence led to establish count 17 and its relevance and admissibility as tendency evidence in relation to counts 1-15. I agree with Button J, and with the trial Judge, that the danger of unfair prejudice to the jury's consideration of the counts relating to the different complainants was potent in the circumstances of this case. As Acting Judge Latham put it by reference to the High Court's observation in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [17]: "In the circumstances of this trial, there is a real, not speculative, danger that the jury will attribute disproportionate weight to the tendency evidence."
6. I also agree that judicial directions could not guard against the misuse of the tendency evidence.
7. While it was necessary for Button J's leading judgment to set out the other issues that were subject to argument on the appeal, it is not necessary to resolve a number of those issues. The Court's jurisdiction is concerned with correcting orders, not the reasons for judgment. Often, errors in the latter may lead to orders relating to the former, but that is not the case here.
8. Given the forensic choice that the respondent has made in relation to the joinder of the counts relating to the other two complainants, it is unnecessary for this Court to decide the cross-admissibility of the evidence relating to the complainants to whom Button J has referred as Felicity (counts 1-10) and Sally (counts 11-15). As to that issue, Acting Judge Latham made some observations about the admissibility of Felicity's evidence in the trial in relation to Sally's allegation, and vice versa. Her Honour's dicta that the introduction of such evidence as tendency evidence "would still, in my view, be problematic" (at [30]) is not binding on the Judge who ultimately presides over the respondent's trial. The issue will be determined based on the evidence and issues at the trial. There is little doubt that if the evidence is so introduced, the formulation of directions will be difficult: see, for example, JS v R [2022] NSWCCA 145 and Rassi v R [2023] NSWCCA 119. If it is not introduced as tendency evidence, the issue(s) (if any) to which it is directed will have to be determined and the "anti-tendency" directions will need to be clear and strong: see, for example, BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47 at 302 (Gaudron J) and 305 (McHugh J); Qualtieri v The Queen (2006) 171 A Crim R 463; [2006] NSWCCA 95 at [80]; Vaoalii Toalepai v R [2009] NSWCCA 270 at [48]; Salgado v R [2022] NSWCCA 58 at [15], [71]-[84]. See generally Hamilton (a pseudonym) v The Queen (2021) 95 ALJR 894; [2021] HCA 33. These are matters for the parties and the trial Judge when the matter proceeds to trial.
9. Similarly, in light of the confined issue upon which the appeal can be determined, I need not reach any conclusion as to the scope of s 97A of the Evidence Act or Acting Judge Latham's conclusion that there were "exceptional circumstances" allowing some of the matters in s 97A(5) to be taken into account to determine whether the presumption of "significant probative value" was displaced (other than to note my agreement with the Chief Judge's conclusion at [14]). I would only say that the section provides a presumption, not a prohibition, and that her Honour's conclusion as it relates to counts 16 and 17 does not jump off the page as being wrong.
10. Further, in terms of things this Court need not decide, it is unnecessary to enter a debate as to the learned trial Judge's choice of words in formulating her reasons for deciding the evidence did not have significant probative value and, if that conclusion was wrong, that the probative value of the evidence did not outweigh the danger of unfair prejudice. It may be that the observations that the asserted tendency "can hardly be regarded as unusual or eccentric" [27] and the reference to "the banality of the asserted tendency" [18] might be considered unfortunate but her Honour's judgment was produced overnight once the decision and orders were made immediately at the conclusion of the argument. All of this occurred after a jury was empanelled and the very experienced Judge identified a significant problem that would have unfolded if the trial was allowed to continue with all three complainants giving evidence before a single jury. I would not criticise her Honour for her choice of language when the reasons for her conclusions were clear.
11. With those additional observations, I confirm my agreement with the reasons of Button J.
12. Since circulating this brief concurring judgment, I have read the judgment of Beech-Jones CJ at CL who exposes the difficulties surrounding this appeal with clarity. I agree with the Chief Judge's analysis. MFI 1- R v Stenner Wall_Redacted (1230455, pdf)

Endnotes

1. Tr 29/03/2023 pp 4 to 5.
2. Tr 29/03/2023.30.
3. Tr 29/03/2023.30.
4. Tr 29/03/2023 p 10.9.

Amendments 26 July 2024 - Publication restriction removed - judgment republished 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: 26 July 2024