Vagg v R

Court of Criminal Appeal (NSW)|2020-03-16|Before: Rothman J, Adams J

Solicitors: Younes & Espiner Lawyers (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2015/208407 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 1 September 2017 Before: Girdham SC DCJ File Number(s): 2015/208407

Judgment

SIMPSON AJA: On 17 May 2017 the applicant was arraigned in the District Court on an indictment that charged him with two counts of sexual intercourse with a child under the age of 10 years, contrary to s 66A of the Crimes Act 1900 (NSW). He entered a plea of not guilty to each count. A jury was accordingly empanelled and a trial proceeded. On 29 May 2017 the jury returned a verdict of guilty on each count. On 1 September 2017 the applicant was sentenced to an aggregate term of imprisonment of 8 years and 4 months with a non-parole period of 5 years and 4 months.
The applicant now wishes to appeal against the convictions. In order to do so he needs and seeks an extension of time. He has not sought leave to appeal against the sentence imposed.
The delay in commencement of the proceedings has been substantial. By s 10(1)(a) of the Criminal Appeal Act 1912 (NSW) a Notice of Intention to Appeal against either conviction or sentence is required to be given within 28 days after the conviction is entered or the sentence imposed. By s 10(1)(b) the court may, at any time, extend the time within which the Notice is required to be given. Pursuant to r 3A(1)(a) of the Criminal Appeal Rules (NSW), the Notice is valid for 6 months after the date of filing. By r 3A(2) the court may extend the period for which a notice has effect and may do so before or after the expiry of the period.
On 13 September 2017 (within time, having regard to the date of sentence) the applicant filed a Notice of Intention to Appeal in relation to both conviction and sentence. A number of extensions of the Notice of Intention to Appeal were granted. The Notice ultimately expired on 14 June 2018. In August 2018 the applicant was advised by counsel that the proposed appeal against conviction did not have reasonable prospects of success. An Amended Notice of Application for Leave to Appeal was filed on 18 December 2019. On the same day an Amended Notice of Application for Extension of Time for Notice of Appeal was filed. An application for further extension of the Notice of Intention to Appeal was refused on 19 December 2018.
On 20 December 2018 the applicant changed his legal representation. His new solicitor sought a further advice on the prospects of success of an appeal against the convictions. On a date not specified in the evidence he was advised that, in the light of recent authority, there was "merit" in an appeal against conviction.
The power to extend time in which to appeal, or seek leave to appeal, is wide. One relevant factor in the determination is the prospects of success of any appeal should an extension be granted: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
By the sole proposed ground of appeal the applicant seeks to challenge the admission in the trial of tendency evidence pursuant to s 97(1) of the Evidence Act 1995 (NSW).
It will be necessary to consider more closely the ground of appeal before it is possible to evaluate its prospects of success. The proposed ground does not have to succeed in order for an extension of time to be granted. A ground that is sufficiently and reasonably arguable but that ultimately fails may justify an extension of time.

The relevant facts and circumstances

I turn now to the case the Crown sought to make against the applicant. As indicated above, he was charged with two counts of sexual intercourse with a child under the age of 10. The Crown alleged that both offences were committed on one day between 12 June 2010 and 31 December 2010, against the same child (the complainant) who was then 7 years of age.
The Crown case was in a relatively narrow compass and may be stated as follows.
The applicant was, by trade, a window cleaner. He was engaged by the complainant's parents to clean windows at their home in a Sydney suburb. He undertook that task on a Sunday, when the complainant and her mother were present. The complainant's mother was in the house. The complainant was outdoors. The applicant asked the complainant if she wanted to help him with the window cleaning. She agreed. The applicant gave her a sponge to use. The first offence was committed when the applicant was cleaning a glass panel at the front door of the house. The applicant lifted the complainant with one hand on her side and one hand on her buttocks. He placed his hand inside her tights and underwear and inserted two fingers into her vagina.
A little later the applicant began cleaning windows opening onto a side passage between the house and a masonry fence or wall. The complainant was standing next to the applicant. The applicant committed the second offence by lifting the complainant up and again inserting his fingers into her vagina.

Pre-trial chronology

At this point it is necessary to digress to explain something of the procedural and other history.
The complainant did not reveal what she said had taken place until 11 March 2015, when she was 12 years of age. She overheard her mother in a conversation with a friend about having the windows cleaned. She protested that she did not want "that window cleaner" to come back to the house. She then recounted to her mother the events set out above.
The complainant's parents contacted police, who attended that day. A police officer, Senior Constable Culpan, spoke to the complainant for about ten minutes. The complainant again gave an account of the events. While she was doing so, Senior Constable Culpan made notes "in point form" of what the complainant said. He later compiled a statement from his notes. His statement included that the complainant said: "… while I was being lifted up and I was cleaning the top of the window, the man put his finger inside my vagina and held me in that position and joked with his assistant, 'has she done a good job yet?' He then put me down and I went downstairs which lead [sic] to the garage and with the window cleaner to clean other windows, he picked me up the same way and he put his finger in my vagina again."
On 31 March 2015 the complainant took part in an interview with members of the Joint Investigation Response Team (JIRT). She then gave an account of what she alleged had happened. The interview was video recorded.
On 14 July 2015 the complainant's aunt ("HC") telephoned the applicant, whom she knew, and had a conversation with him about the complainant's allegations. Pursuant to a warrant issued by the Supreme Court under the Surveillance Devices Act 2007 (NSW) the telephone conversation was recorded. It is plain that this was not the first conversation HC had had with the applicant on the subject. The applicant vigorously denied any wrongdoing in relation to the complainant.
On 16 July 2015 the applicant was interviewed by police. He denied the allegations. The interview was video recorded. There were some inconsistencies between what the applicant told police in the interview, and what he had said to HC. Significantly, in the conversation with HC, while he denied much recollection of the house, he said that he remembered cleaning a cubby house there. He made three references, not prompted by HC, to the cubby house. But in the police interview (only 2 days later), he denied any recollection of the cubby house.
The applicant was subsequently charged with the two offences.
On 5 April 2016, before a trial had commenced, and in accordance with provisions contained in Sch 2, Pt 29 of the Criminal Procedure Act 1986 (NSW), the complainant's evidence in chief and cross-examination were taken in a pre-recorded evidence hearing.
On 20 June 2016 the applicant was arraigned in the District Court and a jury empanelled. That jury was discharged before any evidence had been taken. A second jury was empanelled the following day. The complainant's evidence was given by the video recording of the JIRT interview (Criminal Procedure Act, s 306S) and the video recording of the pre-recorded evidence being played to the jury (Criminal Procedure Act, Sch 2, Pt 29). Other witnesses gave evidence in the conventional way. The applicant gave sworn evidence, in which he denied all allegations, and called other witnesses. The applicant raised his good character.
After the close of the case for the applicant, and before the commencement of addresses, the Crown Prosecutor received certain information that she promptly disclosed to the court. The information was from the parents of another child to whom I will refer as "MF". MF made allegations of conduct which might be described as of a sexual nature on the part of the applicant on two occasions in about 2014, when she was 6 or 7 years of age. The Crown Prosecutor sought to reopen the prosecution case to tender the evidence of MF, in order to rebut the applicant's claim of good character.
Inevitably, the jury was discharged.
On 27 October 2016 MF took part in an interview with members of JIRT. The interview was video recorded. MF gave details of the two occasions on which she alleged that the applicant had conducted himself in what might be interpreted as a sexually inappropriate way. She said that the incidents took place when she was 6 or 7 years old (MF was born in 2007).
She said that the applicant was known to members of her family and that she had also met him previously. She said that the first incident occurred, she thought, on Christmas Eve, at her home where there was a large family gathering in progress. She said that she was bouncing on a blow-up mattress. The applicant approached her and told her that he had been looking for her, that he needed the bathroom but it was occupied, and asked her to take him to the outside bathroom. She said that she demurred, suggesting that he go by himself, to which he replied that it was too dark and he was "really scared". She said that she then showed him to an outside bathroom and that he asked her to come and sit on the steps next to him and that she refused to do so. At that time the applicant was urinating in a bush. She said that she was going to leave the door open. The applicant replied that he did not want anybody to see, knowing that he was in the bathroom, but she said that she was going to leave the door open "just in case". She said that she did not feel safe. After that, the applicant ignored her.
MF said that she told her parents what had happened.
MF said that the second incident occurred in the course of another family celebration in the same year. She said that the applicant again told her that he needed the bathroom but did not know the way. She contradicted him, saying that he did know the way, but that she could show him a "secret way". She took him down a "secret passageway" to the bathroom. She said that she told him that she was going to leave but he asked her to stay. As she began to leave the applicant "screamed" that he was finished and she asked him if he were going to flush the toilet and wash his hands; he said that he did not know how to flush the toilet and asked her to do so for him, which she did. When she turned around the applicant "had his fly undone facing at me". His penis was exposed. She said that she then asked him to leave. (In a later answer she said that she "just ran").
MF said that she also reported this incident to her parents.
On 14 November 2016 the Crown gave notice to the applicant's solicitor that it proposed to rely on MF's allegations as tendency evidence under s 97 of the Evidence Act.
On 9 December 2016 MF's evidence, consisting of both examination in chief and cross-examination, was taken and video recorded, pursuant to Pt 29 of Sch 2 to the Criminal Procedure Act.
On the same day a voir dire was conducted with respect to the admission of MF's allegations as tendency evidence. The trial judge ruled that the evidence of MF would be admitted, and gave reasons for that ruling.
On 16 January 2017 a third jury was empanelled; that trial also aborted following an unresponsive answer given by a witness.

The trial

On 17 May 2017 a fourth jury was empanelled and the trial proceeded to conclusion with the applicant convicted of both counts on the indictment.
The video recordings of the complainant's JIRT interview and pre-recorded evidence were played to the jury, as were the video recordings of the JIRT interview and pre-recorded evidence of MF. Other witnesses gave evidence conventionally. The applicant did not give oral evidence in this trial. The evidence he had given in the second trial was read to the jury.

Tendency Evidence

As noted above, the sole ground of appeal asserts error in the decision to admit the tendency evidence pursuant to s 97 of the Evidence Act. Section 97(1) provides as follows: "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."
Section 101(2) adds a further barrier to the admission of tendency evidence in criminal proceedings. That subsection provides: "101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution … (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. …"

The Tendency Evidence Notice

The Tendency Evidence Notice given by the Crown identified the tendency sought to be proved as: "a. [the applicant's] tendency to have a particular state of mind, namely his sexual interest in young girls under the age of 10 years; b. his tendency to act on it, namely, his tendency to opportunistically lure young girls away to secluded locations so that he could engage in sexual activities with them and to encourage young girls to assist him with tasks (window washing and using the toilet) as a guise in order to isolate them and engage in sexual activities with them."
The Crown identified seven "common features of the allegations" upon which it relied to establish the tendency. These were: "(i) The allegations concern female children under 9 years of age; (ii) Both children were at their home when the offences occurred; (iii) The alleged offences all occurred between 2010 and 2012; (iv) In each instance the accused was a visitor to the child's home; (v) In each instance the child was alone with the accused in a secluded area of the house; (vi) In each instance the offence occurred whilst the accused was getting them to do a task; (vii) In each instance the accused had led the child to a secluded area of the house to commit the offence."
The Crown served the Tendency Evidence Notice with a copy of the transcript of the JIRT interview with MF, a copy of the transcript of the JIRT interview with the complainant, and a transcript of the pre-recorded evidence of the complainant.
Three questions arose for determination before the evidence of MF could be admitted: (i) was reasonable notice of the intention to adduce the evidence given?; (ii) did the court think that the evidence, either by itself or in conjunction with other evidence in the Crown case, have significant probative value?; and if (i) and (ii) were satisfied: (iii) did the probative value of the evidence substantially outweigh its potential prejudicial effect on the applicant? There was no issue that reasonable notice had been given.
In her reasons for admitting the evidence the trial judge identified the issues in the trial (as then perceived) as: "whether the complainant was sexually assaulted and[,] if it is established that she was[,] that the applicant was the perpetrator."
She considered that the evidence of MF (if accepted by the jury) was: "…capable of establishing [that the applicant had] demonstrated a pattern of behaviour on his part to ask young females to assist them [sic] to undertake tasks, isolate the child and then sexually inappropriately deal with them." She considered evidence to that effect to be "highly probative" in assessing whether the applicant had in fact assaulted the complainant as she alleged.
Having thus first found that the evidence had significant probative value, the trial judge turned to s 101(2) of the Evidence Act. She acknowledged that the evidence, if admitted, would have a prejudicial effect but considered that appropriate directions could be framed to ensure that the evidence was not improperly used and that, therefore, the probative value of the evidence substantially outweighed its prejudicial effect.
The applicant attacks each of those conclusions, that is, that the evidence had significant probative value, and that its probative value substantially outweighed its prejudicial effect.
Although the ground of appeal is framed in terms of asserted error in the trial judge's decision to admit the evidence, and although submissions of both parties were directed to whether or not specific error could be or were identified in the trial judge's reasons, resolution of the ground is concerned with the use made of the evidence in the trial: The Queen v Bauer (a pseudonym) [2018] HCA 40; (2018) ALJR 846 at [61]; McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 at [11]. It is for this court to determine whether the evidence had significant probative value. It may be taken that it is also for this court to determine whether the probative value of the evidence substantially outweighed its prejudicial effect. (Leeming JA appears to have accepted that that is the case in BC v R [2019] NSWCCA 111 at [60]; see also Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 at [37]). That probative value is to be assessed by reference to what the evidence is capable of proving, taking it at its highest: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [49]-[54] (per French CJ, Kiefel, Bell and Keane JJ); Bauer at [69].
The assessment of the probative value of the evidence must take place in the context of the disputed factual issues litigated in the trial. Commonly, in cases of sexual offences, the dispute lies either in the identity of the offender or in the fact of the occurrence of the offending. Different considerations may apply to the assessment of probative value of the proposed evidence, depending upon which of those two issues arises. In this case, the lines were not clearly drawn. The complainant's evidence was that the offences were committed by a window cleaner. There was no dispute that the applicant had been engaged as a window cleaner at the complainant's home, and had been so engaged at about the relevant time. (Some definition of the time could be made because the complainant said that the offences occurred not long after the family had moved into the house, which occurred in 2010). Unlike the offender in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20, the applicant was not previously known to the complainant, and the lapse of five years between the date on which the offences were alleged to have been committed, and the date of report, left some room for doubt concerning whether he was the person who perpetrated the acts alleged by the complainant, assuming that they had in fact been committed, and even assuming that they had been committed by a window cleaner. (There was evidence from the complainant's mother that no other window cleaner had been engaged in 2010 or 2011).
In the course of the appeal a significant debate arose concerning the extent to which the identity of the offender was a, or the, principal issue in the trial. The issue was important because in Hughes the majority in the High Court (Kiefel CJ and Bell, Keane and Edelman JJ) said that where the issue is the identity of the perpetrator of a known offence, the probative value of the evidence: "39. …will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence." Their Honours added that different issues might arise where the issue is the fact of the occurrence or the offences.
On behalf of the applicant it was contended that identity was the principal issue and that the applicant did not in any concerted way contest the occurrence of the offences. The Crown maintained that the applicant had also disputed the fact of the occurrence of the offences and did so by the manner in which the complainant was cross-examined.
The truth lies somewhere in between the two positions. The proven proximity of the applicant to the complainant's home at about the relevant time and his occupation as a window cleaner meant that, while the possibility remained open that the offences (assuming they had been committed) had been committed by somebody else, the fact of the occurrence of the offences was also in play. The applicant made no concession that the acts had been committed (neither, given his denials, could he have been expected to) and the cross-examination of the complainant, though not searching on this topic, nevertheless opened the possibility that she was, at least, mistaken.
The applicant's position essentially was that if he were the window cleaner to whom the complainant attributed the offences, the offences had not been committed. Thus, perhaps unusually, both identity and the fact of the commission of the offences were in issue.
In Hughes (at [41]) it was held that the assessment of whether the tendency evidence has significant probative value involves consideration of two "interrelated but separate" matters: (i) the extent to which the evidence supports the tendency asserted by the Crown; (ii) the extent to which the tendency makes more likely the facts making up the offences.
Where the question is not identity, but whether the offence was committed, it is necessary to consider both matters. Their Honours concluded: "41. …In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged."
That brings me back to the evidence of MF. Bearing in mind the terms of the Tendency Evidence Notice, the first question to consider is the extent (if any) to which her evidence supported the existence of: (i) a tendency in the applicant to have a sexual interest in young girls under the age of 10; and (ii) a tendency to act on that interest (in the way specified in the Tendency Evidence Notice). I note that, in considering these questions, it is necessary to assume that MF's evidence was accepted by the jury.

(i) Did the evidence of MF support the existence of a tendency in the applicant to have a sexual interest in young girls under the age of 10?

The first incident of which MF gave evidence, while distinctly unsavoury, was not clearly overtly sexual. Taken alone, the most it could do was raise a question about the applicant's motivation in engaging MF as he did.
But s 97(1)(b) makes it clear that the tendency evidence is not to be looked at in isolation and, plainly, if the Crown relies on evidence of more than one incident as tendency evidence, those incidents are not to be considered in isolation from one another. The second incident recounted by MF had a more overtly sexual connotation, culminating in the applicant's exposing his penis to her. The evidence of that incident casts some light on the applicant's motivation in the first incident.
The applicant was born in 1958. In 2010 he was 52 years of age. As a matter of ordinary human experience (a consideration taken into account by the majority in Hughes) it is unusual for a 52 year old man to engage a 6 or 7 year old girl in escorting him to a bathroom. Surrounding detail of the incident as described by MF aids in understanding the applicant's conduct. According to her evidence the applicant sought her out, told her that he had been looking for her, told her that it was too dark and he was "too scared" to go to the outside bathroom by himself (dubious propositions in themselves), asked her to sit on the steps next to him, and resisted her stated intention to leave the door open. These circumstances plainly raise questions about the applicant's motivation or state of mind. It is also not without significance that MF considered the incident to have been of sufficient concern to report it to her parents, and that she left the door open "just in case".
Notwithstanding all of these circumstances, alone this evidence would not, to any sufficient extent, support the existence of a tendency in the applicant to have a sexual interest in young girls (much less a tendency to act on such an interest).
But when that incident is considered in conjunction with the second a different picture emerges. Again the applicant sought out MF with the intention that she would escort him to the outside bathroom, telling her (wrongly) that he did not know the way there; he asked her not to leave; after using the toilet, he asked MF to flush it for him because he did not know how to (another dubious proposition). He then exposed his penis.
In my opinion the exposure of the applicant's penis is an unmistakable indication that his motivation in the whole of that incident was sexual. It is a short step to conclude that his motivation in relation to the first incident also was sexual, although it was not so clearly manifested.
MF's evidence, in my opinion, supports the existence of a tendency, as asserted by the Crown, in the applicant to have a particular state of mind that is, a sexual interest in young girls.

(ii) Did the evidence of MF suggest the existence of a tendency in the applicant to act on his sexual interest in young girls?

It is then necessary to consider whether the evidence supports the second asserted tendency, that is a tendency in the applicant to act on his sexual interest. In McPhillamy the plurality in the High Court said: "27 … Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value." (italics in original)
It may be accepted that the conduct alleged by MF was in many respects quite different from the conduct alleged by the complainant.
In Hughes it was held that, in order for the evidence to support a tendency to act on a sexual interest it is not necessary that the conduct alleged display similarities, underlying unity, pattern of conduct or "modus operandi". But Hughes was a case where the identity of the perpetrator of known offences was not in issue. Mr Hughes was known to the complainants. The issue was whether the acts with which he was charged had been committed.
It was, no doubt, because, in this case the identity of the offender was in issue that the Crown identified the "common features" of the alleged offending against the complainant, and the applicant's alleged conduct towards MF. The proposition stated in [39] of Hughes demanded attention to similarities in the conduct alleged in the tendency evidence, and that alleged by the complainant.
Evidence supporting a tendency to have a particular state of mind, such as a sexual interest in young girls, and evidence supporting a tendency to act on that interest are necessarily intertwined, and may be co-extensive. That is, the evidence establishing a tendency to have a particular state of mind may be, and often is, the same evidence that supports a tendency to act on that that state of mind. Very often the evidence of the conduct that establishes the tendency to act in a particular way is the evidence that provides the foundation for finding a tendency to have a particular state of mind.
In this case, the applicant's sexual interest in young girls was said by the Crown to have been manifested in his conduct, on two occasions, in taking advantage of a social situation to seek out MF and engage her in escorting him to a secluded bathroom, the location of which, at least on the second occasion, he knew. And it was also manifested, although opportunistically, in his conduct towards the complainant, in taking advantage of a situation when he was alone with her and in which, on the second occasion at least, he was not subject to any observation. There were relevant similarities.
I have set out above the "common features" (see [39]) on which the Crown relied in order to establish the tendency for which it contended. These were common features of the alleged offending against the complainant and the alleged conduct towards MF. They included, for example, that in each case the applicant was a visitor to the child's home, that both children were at home when the conduct occurred, and that both offences occurred between 2010 and 2012 and that the applicant engaged the child in assisting him. (In fact, the evidence of MF tended to suggest that the incidents involving her took place in 2014 or possibly 2013).
The list of common features draws attention to similarities in the conduct of the applicant on the three separate occasions in question. Counsel for the applicant took issue with at least one of the "common features" - that, in the somewhat emotive language of the tendency identification, the applicant "lured" (or in the less emotive language of the common features list, the applicant "led") the child to a "secluded location" of the premises, on a pretext of having her assist him in a "task". Counsel pointed out that the first offence against the complainant was alleged to have been committed while the applicant was, with the complainant's assistance, cleaning a glass panel at the front door of the house, which photographs in evidence suggest was in full view of the street. That, it was argued, could hardly be called a "secluded location".
So much may be accepted. But that fact does little to undermine the overall force of the common features that suggest tendency on the part of the applicant. And the location of the second offence alleged by the complainant does justify the description "secluded".
There were some inconsistencies in the evidence on which reliance was placed on behalf of the applicant. For example, the complainant said that the man who assaulted her did not have a beard. There was evidence that, at the relevant time, the applicant was bearded.
Such discrepancies were relevant to the jury's assessment of the reliability of the complainant's account, but they do not assist in the assessment of the probative value of MF's evidence.
Counsel also pointed to the evidence that the complainant had told Senior Constable Culpan that this offence took place in the presence of the applicant's assistant. There was evidence that the notes taken by Senior Constable Culpan were not necessarily precise and may not have reflected the precise sequence of what the complainant told him. But in any event that circumstance does not bear upon the admissibility of the evidence of MF, nor on whether its admission gave rise to a miscarriage of justice.
This was an unusual case of tendency evidence. The tendency evidence related to events that took place three or four years after the events the subject of the charges on the indictment. They involved a different child, although one of the same sex and comparable age to the complainant. Most importantly, the allegations were of conduct in some respects substantially different in nature from the conduct the subject of the allegations made by the complainant. That last fact, having regard to what was said in [39] of Hughes, has given me considerable pause for thought, notwithstanding that similarity of conduct is not a precondition of admissibility.
I have nevertheless concluded that there was sufficient in the evidence of MF to warrant the conclusion that the applicant did have a tendency to have a sexual interest in young girls, and, further, that he had a tendency to act on that interest in ways which were both different and had common features.

(iii) Did the evidence have significant probative value?

That does not conclude the matters in issue on this appeal. Two questions remain. That the applicant had been shown to have had the tendencies in question does not carry as a necessary consequence that the evidence has significant probative value. That question is to be decided by asking whether the tendency evidence, together with other evidence in the trial, makes more likely, to a significant extent, the facts that make up the elements of the offences charged: Hughes at [40], R v Ford (2009) NSWCCA 306; (2009) 201 A Crim R 451. In Hughes the majority said: "40. In the trial of child sexual offences, it is common for the complainant's account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded."
I have come to the further conclusion that the evidence did have significant probative value. In circumstances that allow for some doubt whether the person to whom the complainant attributed the offending behaviour was in fact the applicant, evidence that showed that he was a person who had a sexual interest in young girls (however that interest was manifested) was likely to be influential in the determination of whether he was the person who committed the offences against the complainant (assuming, of course, that the jury was satisfied that those offences had been committed).

(iv) Did the probative value of the evidence substantially outweigh its prejudicial effect?

The final question, in terms of s 101(2) of the Evidence Act, is whether the probative value of the evidence substantially outweighed its prejudicial effect. There can be no doubt that the evidence was likely to be prejudicial. But as the trial judge observed in her reasons for judgment, directions can go a long way to ameliorating any potential misuse of damaging evidence, or other prejudicial effects: DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [14], [104], [171]. In this case no complaint is made of the adequacy of the directions in that respect. I am satisfied that, in the circumstances of the trial, s 101(2) did not require the exclusion of the tendency evidence. The probative value of the evidence substantially outweighed any prejudicial effect it may have had on the applicant. The admission of the tendency evidence did not give rise to a miscarriage of justice. I would therefore reject the proposed ground of appeal.
Notwithstanding that conclusion, I would extend the time for appeal. Legitimate issues were raised and debated in the appeal, and the application of s 97 and s 101(2) is by no means easy.
The orders I propose are:
Time for filing a notice of appeal is extended to 18 December 2019.
The appeal is dismissed.
ROTHMAN J: I have had the considerable advantage of reading in draft the reasons for judgment of Simpson AJA. I agree with the orders her Honour proposes. I also agree with her reasons and wish to add some comment.
Her Honour has summarised the facts and issues in the trial and it is unnecessary for me to reiterate them. I rely on her Honour's analysis.
At least where identity is in issue, evidence of a tendency to engage in sexual conduct with a child is, almost invariably, relevant in cases involving allegations of sexual offences against children. The test for relevance, prescribed by s 55 of the Evidence Act 1995 (NSW), is evidence that, if it were accepted, could rationally affect, either directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. This is a relatively low bar to satisfy, where one is faced with the possibility that one, of a number of hypothetical others, has a history of acting on a sexual interest in young persons.
All relevant evidence is, in general, admissible. [1] Nevertheless, assuming evidence is relevant, if the evidence is evidence of the character, reputation or conduct that a person has, or had, it is not admissible to prove that the person has the tendency to act in a particular way or have a particular state of mind. That is the prima facie position that applies to tendency evidence, namely, it is, despite being relevant, inadmissible.
Thus, s 97 of the Evidence Act renders inadmissible material that would otherwise be relevant, because it is evidence of the character, reputation or conduct of a person that is being used to prove that the person has a particular tendency.
Notwithstanding that prima facie the evidence is inadmissible, if a judge is satisfied that the evidence, by itself or with other evidence, has significant probative value, it is admissible. [2] Because it is irrelevant for present purposes, I do not deal with the requirement for reasonable notice in s 97(1)(a).
Further, in these proceedings, because the evidence is to be used in a criminal proceeding about an accused, it must pass the further bar that it cannot be used, unless the judicial officer is satisfied that the probative value, to which s 97 of the Evidence Act refers as being significant, substantially outweighs any prejudicial effect it may have on the accused. [3]
In the reasons for judgment in Fletcher [4] , the Court unanimously agreed on the principles to be applied in determining the issues that arise under ss 97 and 101 of the Evidence Act. [5] Nevertheless, the Court differed in its reasons on the application of those principles.
As explained in McPhillamy [6] , a mature man's sexual interest in a young person is a tendency to have a particular state of mind and, in some instances, to conduct oneself in a particular way. [7] Such a tendency overcomes the preliminary or fundamental test of relevance, earlier in these reasons described as the "low bar". [8]
It is the tendency to act unlawfully in satisfaction of the sexual interest that gives the tendency evidence significant probative value. [9] Thus, in this case, it is not the interest of the applicant in young girls that is of significant probative value, but the tendency to act unlawfully on the sexual interest.
Further, whether the evidence of prior (or in this case future) conduct has significant probative value, for the purposes of s 97 of the Evidence Act, is ultimately an assessment of fact that must be ascertained by the judicial officer, bearing in mind that the judicial officer must assume that the jury will accept the evidence. Where the tendency relates to sexual misconduct with a person, other than the complainant in the charges to which the proceedings relate, it is necessary to identify some particular circumstance or fact that links the prior conduct with that which is before the Court.
In this case, evidence of the first event with the other alleged victim, would not, of itself, constitute evidence with significant probative value and, even if it were to be established, that would not overcome the hurdle posed by s 101 of the Evidence Act, that the probative value must substantially outweigh the prejudice to the accused.
But the first event associated with the later conduct is not taken by itself. Tendency evidence is a kind of circumstantial evidence and must be viewed holistically. The first event in the later conduct may or may not have been sexual. If accepted, it may make the existence of a fact more likely, but it would not be of significant probative value, by itself. But, when one takes it together with the later conduct towards the same later alleged victim, the sexual nature of the first event becomes manifest.
As a consequence, the combination of the two earlier events with the later alleged victim are relevant and are of significant probative value, because they together give evidence of this accused behaving in an unlawful manner, consistently with the behaviour alleged in the offences before the Court. Thus, it is not only the fact of conduct on a later occasion with a different complainant or alleged victim, it is that there are similarities in the way in which the conduct occurred. Those similarities are identified by Simpson AJA, with which analysis I agree.
In this case, one of the issues before the Court below was the identity of the person who, it is said, committed the assault on the complainant. Thus, the tendency has significant probative value in the proceedings before the Court below and it is the similarity in the approach to the alleged victim that makes that evidence of significant probative value.
As a consequence, the test in s 97 of the Evidence Act has been satisfied. I make it clear that the provisions of s 97 have been satisfied, not by the evidence of tendency of interest, but by the tendency to act on that interest in a manner that is criminal and which has some features similar to the features of the offending, albeit that the precise criminal act is different. [10]
I would only add that, in regard to s 101 of the Evidence Act, whether the probative value substantially outweighs its prejudicial effect, depended very much on the directions that were given. Nevertheless, given that there were appropriate directions, the probative value of the evidence substantially outweighed its prejudicial effect. The applicant does not complain about the judge's directions and, in that respect, does not raise, essentially, the issues in s 101 of the Evidence Act.
As earlier stated, I agree with the reasons and the proposed orders of Simpson AJA.
N ADAMS J: I have had the significant advantage of reading the judgment of Simpson AJA in draft. I agree with the orders proposed by her Honour for the reasons provided. As her Honour has observed, this was an unusual case in that both identity and the fact of the commission of the offences were in issue. Not only was the trial itself unusual, so too was the tendency evidence, for the reasons provided by her Honour at [73]. Despite these unusual features, I too am satisfied that the evidence of MF was sufficient to permit a finding that the applicant both had a tendency to have a sexual interest in young girls and to act on that interest. I am further satisfied that this tendency evidence had significant probative value (s 97(1)(b)) that substantially outweighed its prejudicial effect (s 101(2)).

Endnotes

Section 56 of the Evidence Act 1995 (NSW).
Section 97(1)(b) of the Evidence Act 1995 (NSW).
Section 101 of the Evidence Act 1995 (NSW).
R v Fletcher (2005) 156 A Crim R 308; [2005] NSWCCA 338.
Attention was also paid to s 98 of the Evidence Act, coincidence evidence.
McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52.
Ibid at [26] and [33].
Ibid at [27] and [33]
Ibid.
See para [38] of these reasons. 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: 24 June 2020

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