BC v R - [2015] NSWCCA 327

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: BC v R [2015] NSWCCA 327
Hearing dates: 12 August 2015
Decision date: 18 December 2015
Before: Simpson JA at [1];
Adams J at [2];
Beech-Jones J at [72].
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords:
CRIMINAL LAW – appeal – application under s 5F of the Criminal Appeal Act 1912 (NSW) – separate trials – admission of tendency evidence – offences committed between ages 11 and 28 years old – whether evidence of charges admissible as tendency evidence – whether charges should be tried separately
CRIMINAL LAW – appeal – application under s 5F of the Criminal Appeal Act 1912 (NSW) – tendency evidence – complainants are sisters – possibility of concoction – relevance of concoction in assessing probative value under s 101(2) of the Evidence Act 1995 (NSW) – whether probative value of evidence outweighed by prejudicial effect
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F
Criminal Procedure Act 1986 (NSW), s 306B
Evidence Act 1995 (NSW), ss 55, 97, 101, 135
Cases Cited: AE v R [2008] NSWCCA 52
B v R [1992] HCA 68; 175 CLR 599; 63 A Crim R 225
BJS v R (No 1) [2011] NSWCCA 239
BJS v R (No 2) [2013] NSWCCA 123
BP v R; R v BP [2010] NSWCCA 303
DAO v R [2011] NSWCCA 63; 278 ALR 765
DJW v R [2015] NSWCCA 164
DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758; 215 A Crim R 349
DSJ v R; NS v R [2014] NSWCCA 77
Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206
FB v R; R v FB [2011] NSWCCA 217
Festa v R [2001] HCA 72; 208 CLR 593; 185 ALR 394
Harris v Director of Public Prosecutions [1952] AC 694 Markby v R (1978) 140 CLR 108
Hoch v The Queen [1988] HCA 50; 165 CLR 292
House v R [1936] HCA 40; 55 CLR 499
JG v R [2014] NSWCCA 138
Jones v R [2014] NSWCCA 280
Leonard v The Queen [2006] NSWCCA 267; 164 A Crim R 374
McIntosh v R [2015] NSWCCA 184
Pfennig v R (1995) 182 CLR 461 at 482-3; 77 A Crim R 149
R v Dupas (No 3) [2009] VSCA 202; 26 VR 380
R v Ellis [2003] NSWCCA 319; 58 NSWLR 700; 144 A Crim R 1
R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75
R v RN [2005] NSWCCA 413
R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
R v SK; SK v R [2011] NSWCCA 292
R v XY [2013] NSWCCA 121; 84 NSWLR 363
Sokolowskyj v R [2014] NSWCCA 55
Texts Cited: Professor J Hunter, “Jurors’ Notions of Justice, An Empirical Study of Motivations to Investigate & Obedience to Judicial Directions”, September 2013, UNSW Law School
M Bagaric, “The community interest in bringing suspects to trial trumps the right to an impartial decision maker – at least in Victoria”, (2010) 34(1) Criminal Law Journal 5
Category: Principal judgment
Parties: BC (Applicant)
Regina (Respondent)
Representation:
Counsel:
J Stratton SC (Applicant)
N Adams SC/ H Roberts (Respondent)
Solicitors:
Laith Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2014/19938; 2014/199400; 2014/175052
Publication restriction: Non-publication of any information or material that may lead to the identification of the offender and victim (s 15A Children (Criminal Proceedings) Act 1987 (NSW))
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

9 June 2015

Before:

Syme DCJ

File Number(s):

2014/19938; 2014/19940; 2014/175052

Judgment

SIMPSON JA: I agree with Beech-Jones J.
ADAMS J:

Introduction

On 9 June 2015 the applicant (who was born on 21 July 1982) was arraigned on an indictment containing 20 counts of sexual assaults of various kinds involving four complainants. In respect of complainant A, counts 1 to 3 alleged offences between 3 July 1994 and 4 July 1996 (he then being 5 years old and the applicant between 11 and 13 years old), and counts 8 to 16 alleged offences between 3 July 1999 and 31 December 2000 (when he was 10 to 11 years old and the applicant was 16 to 18). In respect of complainant B, counts 4 to 7 alleged offences between 14 September 1997 and 15 September 1998 (when she was 3 to 5 years old and the applicant 15 to 16) and count 18 (when she was 10 years old and the applicant 21 to 23). In respect of complainant C, count 17 alleged an offence occurring between 11 April 2002 and 12 April 2003 (when she was 5 years old and the applicant was 20). The remaining counts, 19 and 20, allege sexual assaults on complainant D, who had a cognitive impairment, between 31 December 2008 and 1 February 2011 (when he was 4 and 5 years old and the applicant was 25 to 28). Following arraignment, the applicant pleaded not guilty and sought a separate trial for counts 1 to 3, and counts 8 to 16 and also separate trials for the counts relating to each of complainants B, C and D, thus five trials covering all the charges in the indictment. (The age variations reflect the uncertainty about the dates on which the offences occurred, so that in relation, say, to counts 1 to 3, which occurred on the one occasion, the applicant was 11 or 12 or 13 years of age.)
The Crown opposed this application upon the ground, essentially, that the evidence in respect of each of the charges is admissible in respect of the others by application of the tendency rule. In a pretrial hearing, the learned primary judge read the statements of each of the complainants and one further witness (in respect of an uncharged offence involving E, detailed below) and two complainants gave evidence. Her Honour concluded that the evidence relied on as tendency was admissible and that none of the counts should be severed. On 10 June 2015 the applicant sought to adjourn the trial to permit an appeal to this Court under s 5F(3) of the Criminal Appeal Act1912 (NSW). That application was refused and the trial proceeded for a further four days, on the last of which it was aborted. The trial is currently listed for hearing on 14 March 2016. Somewhat unusually in an appeal of this kind, as it happened all of the complainants have given their evidence at trial and have been cross-examined. Pursuant to s 306B of the Criminal Procedure Act 1986 (NSW) the prosecution will be entitled to rely on the recorded evidence already given when the trial or trials are ultimately conducted.
The applicant seeks leave to appeal from the refusal of the primary judge to order separate trials upon the following grounds –

(i) the issue of doli incapax was not taken into account;
(ii) the correct test for the admission of tendency evidence was not applied;
(iii) her Honour incorrectly found there was (in effect) no danger of unfair prejudice;
(iv) her Honour was in error in finding that the allegations in relation to the various complainants were similar; and
(v) her Honour erred in determining whether or not there was a reasonable possibility of concoction.

The Evidence Act 1995 (NSW)

It is accepted that the provisions of this Act which deal with tendency and coincidence evidence determine the issues in this appeal. The relevant provisions are –

55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) …
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) …
(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) …
101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(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 … 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.
(3) …
(4) …
135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party …
(b) …
(c) …

The Crown case

The prosecution accepts for present purposes the accuracy of the summary of facts set out in the applicant’s written submissions. (I have anonymised the complainants’ details and omitted indicating editorial changes for ease of reading.) This is as follows –

“3. The applicant was born on 21 July 1982.
The charges relating to A
4. A was the son of a friend of and occasional sexual partner of the applicant's father. He was born on 4 July 1989.
Counts 1 to 3
5. Counts 1 to 3 are all particularised as taking place between 3 July 1994 and 4 July 1996, when the complainant was 5 years old and the applicant was 11 to 13 years old.
6. Count one is an allegation that the applicant fondled the complainant's penis. Count two is an allegation that the applicant fellated the complainant. Count three is a count that the complainant fellated the applicant.
7. These three counts are alleged to be part of the same incident, where the applicant was attending the complainant's mother's party. According to the complainant, he had been given some beer and a cigarette by the applicant. He felt sick so he went to his bedroom and lay down. The applicant entered the bedroom. The applicant said ‘How are you feeling?’ The complainant replied that he was feeling bad. The applicant said, ‘I know what will make you feel better but you can't tell anyone’. The applicant began fondling the complainant's penis and said, ‘How does that feel?’ He then began sucking on the complainant's penis. The applicant said, ‘I’m feeling a bit sick as well, can you do this back for me?’ The complainant then sucked the applicant's penis. The complainant heard someone walking around the house. The applicant said, ‘Quick, stop, stop, get back in bed’. The applicant said, ‘Be quiet, remember you can't tell anyone’. The applicant left the room.
Counts 8 to 11
8. Counts 8 to 11 are all particularised as taking place between 3 July 1999 to 31 December 2000 when the complainant was 10 to 11 years old and the applicant was 16 to 18 years old.
9. According to the complainant, the applicant and the complainant were at the complainant's home alone, playing on the gaming console. The applicant said, ‘Do you remember what we used to do when we were playing games?’ The applicant is alleged to have put his hand down the complainant's pants and masturbated the complainant (count 8). The applicant asked the complainant to do the same to him. The complainant masturbated the applicant (count 9). The applicant then lowered the complainant’s pants and fellated the complainant's penis (count 10). The applicant said, ‘It’s your turn to do it to me while I play the game’. The complainant then fellated the applicant (count 11). A car pulled up and the applicant said, ‘Remember, you can't tell anyone, you'll get in trouble’.
Counts 12 to 15
10. Counts 12 to 15 are all counts when the offences are alleged to have been committed between 3 July 1999 and 31 December 2000. As with the last group of offences, the offences are alleged to have been committed when the complainant was 10 to 11 years old and the applicant was 16 to 18 years old.
11. The applicant was living in a caravan in the backyard of the house where the complainant's family lived. The applicant put his hands down the complainant's pants. The complainant said, ‘I don't like it; I don't want you to do it.’ The applicant said, ‘It's fine, it's all right, you should be happy, you should be happy you have a big penis, it’s bigger than mine, all the women are going to want ya’. The applicant began to fondle the complainant’s penis and masturbated him (count 12). The applicant then said, ‘It’s your turn’. The complainant then moved his hand and masturbated the applicant's penis (count 13). The applicant pulled down the complainant's pants and fellated him (count 14). The complainant then fellated the applicant (count 15). The applicant and the complainant fellated each other about six times.
Count 16
12. Count 16 was allegedly committed between 3 January 2001 and 4 January 2003, when A was about 12 years old, and the applicant was about 19 years old.
13. It is alleged that the applicant suggested to the complainant that they take their dogs for a walk in the bush. During the walk the applicant said, ‘Can you suck my dick?’ The complainant said, ‘No, I don't want to, I don't want to do it again.’ The applicant said, ‘I haven't had a cone today, I’m stressed out.’ The applicant pulled his pants down. The complainant performed fellatio on him. The complainant then said, ‘I'm not doing it any more, I'm not going to do it again”. The applicant said, ‘Why?’ The complainant said, ‘I don't like it. If you ask me to do it again, or come near me again I’ll bite your dick off and tell everyone you made me do it’. The applicant said, ‘OK, OK, it doesn't have to happen again, just don't tell anyone. Keep it to yourself’.
The charges relating to B and C
14. B was born on 15 September 1993 and C was born on 12 April 1997. They were daughters of a friend of the applicant's father.
Charges 4 to 7: B
15. Charges 4 to 7 are all alleged to have been committed between 14 September 1997 and 15 September 1998. During that period, B was 3 to 5 years old, and the applicant was 15 to 16 years old.
16. It is alleged that at B’s home, while her parents were out, the applicant asked the complainant to come into his room for a second. The complainant sat on the applicant's bed. The applicant touched B’s vagina outside her clothing (count 4). He asked her if he could touch her and she said yes. He removed her tights and underwear and licked her vagina (count 5). He masturbated himself and asked B to squeeze his penis, which she did (count 6). The applicant then inserted his penis into her vagina (count 7). There was a knock on the front door. The applicant told the complainant, This will be our special secret, don't tell anybody, it's just between me and you”.
Count 17: C
17. This is the only count involving C. The allegation is that between 11 April 2002 and 12 April 2003 the applicant had committed an act of indecency upon her. At the time C was 5 years old and the applicant was 20 years old.
18. It is alleged that the offence took place when the applicant was living at the applicant's family home. The applicant’s mother had gone out. The complainant went to the applicant's bedroom during the night to ask when her mother was coming home. The applicant said, ‘Come here’. The applicant manoeuvred the complainant so that she was lying with her back on his stomach. The applicant placed his hand on the complainant's vagina under her pyjama pants and moved it around (count 17). The applicant asked if it was OK if he put his hands there and the complainant said, ‘No’. The applicant said, ‘Please’ and the complainant said, ‘No’. The applicant said, ‘How about this’ and the complainant said, ‘No’. The complainant heard the noise of a car and ran out to the front door where she saw her mother.
Count 18: B
19. This count is alleged to have been committed between 14 September 2003 and 15 September 2004. At the time the complainant was 10 years old. The applicant was 21 to 23 years old.
20. The complainant had moved into the house of B's family. The allegation is that whilst babysitting C, the applicant asked the complainant to come into his bedroom. The complainant sat on the applicant's bed. The applicant hugged her and told her that he had missed her. The applicant then placed his hand on the complainant's vagina on top of her boxer shorts. The applicant said, ‘Can I touch there?’ The complainant said, ‘No’. The complainant then walked away. The applicant then said, ‘Just go back to bed then. Remember that this is our secret, don't tell anybody’.
Offences against D: Counts 19 and 20
21. D was born on 3 May 2004. He allegedly suffers from Asperger's disorder, attention deficit disorder, anxiety disorder and has learning difficulties.
22. The offences are alleged to have been committed between 31 December 2008 and 1 February 2011. At that time the complainant was 4 and 5 years old, and the applicant was 25 to 28 years old.
23. It was alleged that the applicant asked the complainant to perform fellatio on him on two occasions. On the first occasion, the applicant placed jam on his penis, and told the complainant that he could not watch television until he sucked the applicant's penis. The next day the applicant again made him perform fellatio on him but with no jam. C said that the applicant told him not to tell his mother.
Uncharged act: E
24. The Crown also seeks to lead evidence of an uncharged act. It is alleged that in 1992 a family, including a boy aged 4 or 5 (“E”), were staying with the applicant's father. E’s mother alleges that she returned home one day and the applicant was in bed with her son and they were both naked. The applicant had his hand on the boy’s penis and appeared to be masturbating him. [The applicant was then about ten years old].

Submissions

In her reasons, the primary judge referred to what she perceived as a difficulty that counsel for the applicant had in articulating the unfair prejudice that might arise and cited as an example of this difficulty the suggestion “that they would misuse the evidence by incorrectly reasoning that, if there were so many complainants, then the allegations must be true”. With respect, this was somewhat to understate counsel’s contentions. In written submissions, he submitted (relying on the judgment of Beazley JA (as her Honour then was) in R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75 at [67]) that evidence of general tendencies might not be sufficiently significant to satisfy the test. This argument was taken up in oral submissions in greater detail, counsel submitting that the evidence did not show a pattern of conduct that sufficed to demonstrate significant probative value and going on to say –

“It is my submission that the primary … unfair prejudice is that a jury, despite any direction that the Court could give, may well reason, ‘Well they couldn’t all be lying, they couldn’t all be making it up’. And that’s impermissible reasoning in relation to one complainant, but lay people could well reason that way.
And if your Honour would say, ‘You shouldn’t reason that way’, it’s exactly as Hoeben [CJ at CL] said in … Sokolowskyj [v R [2014] NSWCCA 55] … [that] one of the dangers of unfair prejudice was that the jury would use the evidence in the way they were directed not to use it, to show [in that case] that the appellant was a sexual deviant who, as a result, was the sort of person who was likely to have committed the offence alleged against him.
The second danger was that the jury would be so emotionally affected by the evidence that they would disregard the appellant’s account in the police interview and disregard the directions to assess the evidence in an unemotional manner. The third danger was that the jury might be disinclined to give the appellant the benefit of any reasonable doubt.”

After a lengthy exchange with the judge, counsel relied on Sokolowskyj v R [2014] NSWCCA 55 to emphasise the need to assess the prejudicial effect of the tendency evidence and to balance that against its probative value. He submitted that the primary danger was, notwithstanding any directions that might be given, the jury might reason no more rationally than that, if the accused molested other persons, he did the same to the complainant and that emotion, not rationality would govern their judgment. He pointed to authorities that emphasised the possibility that directions might not sufficiently minimise the risk of unfair prejudice and quoted the passage from the judgment of the Chief Judge in Sokolowskyj to the effect that failing to weigh the prejudicial effect and balance it against the probative value of the evidence, on the assumption that judicial directions will be completely effective to minimise the risk of unfair prejudice would, in effect, remove the safeguard provided by s 101(2). He referred to the subconscious effect that tendency evidence might have. There was a real risk that, notwithstanding directions, the jury would see the accused as a sexual deviant with no credibility in denying the allegations against him, not deserving of the benefit of a reasonable doubt and was the sort of person who was likely to have committed the offences alleged.

As to probative value, counsel submitted the evidence was so general that it merely showed a tendency to commit the offences and had no probative significance. He submitted there were “disparate ages” (as I understand it, a reference to the varying age of the applicant at the times of each alleged set of offences as well as the ages of the complainants), places, the offences involved boys and girls and different sexual acts and there was “no common thread other than the allegation of [opportunistic] sexual activity with, as it turns out, persons between the ages of four and fourteen”. Counsel then moved to the issue of concoction submitting that, as B and C were sisters who remained in touch, there was the possible risk of concoction. He also submitted, in effect, that the applicant was placed in the embarrassing position of having to defend the earliest charges (1, 2 and 3), where one issue was doli incapax, which raised the question whether they could be used as tendency evidence in relation to the other offences since (as I understand the argument), even if the alleged acts were committed and the Crown had not overcome the presumption, the jury would be invited to regard those acts as establishing the alleged tendency, despite his acquittal. This would also unduly complicate the trial.

The judgment under appeal

After noting that it was agreed that, if the tendency argument succeeded, the severance application would not and vice versa, the primary judge summarised the various allegations upon which the Crown relied and then said –

“Therefore, similarities are that the complainants were young or very young when contact first occurred, about 5 years; on most occasions B’s, A’s and C’s consent was sought; for D a request was made which was complied with. The contact was opportunistic, it does not appear to have been planned; there was no threat or violence in any alleged event; the offences commenced with touching and then progressed to oral sex for 3 of the complainants; for D, the allegation is oral sex; there was what is referred to as a wider definition of a position of trust, that is, the accused was in the complainant's home with the consent of the parents; and the type of touching is very similar, that is touching the child under the clothes and/ or having the child touch him. And where the touching continued, the acts progressing to oral sexual activity; in relation to the E matter, the child was about 5 years old, and masturbation appears to have been included, the accused was in the home with consent when the opportunistic act was interrupted.”

Dealing with other relevant considerations, the primary judge first considered whether the evidence had “the capacity to affect the probability of the existence of a fact in issue”, a reference to s 55 (all statutory references are to the Evidence Act 1995 (NSW)). In this respect, her Honour stated that, so far as counts 1, 2 and 3 were concerned, to which the principle of doli incapax applied, this was “a matter that does not bother me at this stage of the proceedings. It may bother me at the end of the Crown case”. Referring implicitly to s 97(1)(b), her Honour moved to the probative value of the evidence, stating the evidence “is certainly capable of being ascribed [a probative value]” and, later –

“… Now, in assessing the probative value of the evidence, I am not required … to guess what weight a jury might place on it, but it is certainly the case that I can predict this evidence does have significant probative value with respect to a consideration of the tendency argument that the Crown wishes to run.
The capacity that this evidence has to affect a jury’s deliberation will be the subject of directions by me to the jury. I am of the view that this evidence, either alone, or in conjunction with the other evidence to be put before the Court, will have a significant value in the jury’s deliberations.”

The judge then said –

“I also have to consider whether the evidence would have the potential to have an unfair prejudice. There must be, for that to be considered, a danger that the jury will use the evidence on a basis logically unconnected with the issues in the case.
It was submitted that the jury would misuse the evidence, but counsel had some difficulty in actually elucidating how a jury would misuse this evidence. For example it was suggested that they would misuse the evidence by incorrectly reasoning that, if there were so many complaints, then the allegations must be true.
Where there is a tendency argument, such a consideration would always be something that a judge would give strong directions against and it is, indeed, part of the standard directions that a judge gives in relation to tendency evidence.
The jury are clearly told that they have to be satisfied, firstly beyond reasonable doubt these particular events occurred, and then must be satisfied beyond reasonable doubt in relation to each of the particular events as to whether it does, or the corollary, does not, show that the accused has a tendency as the Crown will submit. It is a two stage process that the jury are given to understand they must undertake.
It was suggested to me that judicial directions cannot cure everything. Well, that is certainly the case and that is why the Court would have to be satisfied that there is no unfair prejudice, nor a danger that a tribunal of fact will use the evidence on a basis logically unconnected with the issues in the case … [which] relate to the sexual assaults or sexual touching of young children, with a particular pattern. The pattern is important, and the pattern, as I have already outlined at the beginning of this case [sic; semble, judgment], is an important issue that the jury should be entitled to take into account.”

The judge then moved to the issue of concoction, stating that if it were reasonably possible that the evidence had been contaminated or concocted then it should be withheld. This risk was submitted to arise in relation to B and C “because they are sisters and their statements were taken at the same place, same time but … in different rooms … [and] there was a phone call between … [them] beforehand”. Both had given evidence in the (aborted) trial to the effect that they had not discussed the applicant’s conduct towards them. Her Honour concluded that, whilst there had been an opportunity for concoction, there was no motive for it, and there was no evidence of concoction; rather, the evidence was to the contrary. At all events this was, her Honour noted, a matter for the jury to consider when considering the reliability of the tendency evidence.

Discussion

It is concede d here that the proposed tendency evidence was relevant and no complaint is made about the next step in her Honour’s decision, namely that the proposed evidence had significant probative value within the meaning of s 97(1)(b). The crucial question in this case for determination by the primary judge was whether the probative value of the proposed evidence – namely, the extent to which that evidence “could rationally affect the assessment of the probability of the existence of a fact in issue” (vide the Dictionary) – was so “significant” as to “substantially … [outweigh] the prejudicial effect it might have on” the applicant. It is clear that in this context the “prejudicial effect” is not a reference to the rational and appropriate use of the evidence, adduced for the purpose of proving the Crown case and adversely to the interests of the accused. The prejudice here is prejudice that is unfair in the sense that the jury might, because it shows the accused as guilty of disgusting, criminal or morally reprehensible conduct, give the prosecution case greater or the defence case less weight than it rationally deserves or distract them from the true issues in the case, in short to put a thumb on the scales. There can be little doubt that sexual assaults generally are very likely to engender strong feelings of disgust and indignation, and those upon children especially so. On the face of it, therefore, where the tendency evidence is of this character, its probative value must be correspondingly much more significant than would be necessary where the evidence is less likely to induce strong feelings of antipathy for the accused. This is very far from the case where the tendency evidence is morally or socially inconsequential.
In almost every case it will only be possible to identify the potential prejudice by reference to the risks of misuse in a general way by pointing to the offensive character of the impugned evidence and the feelings it might engender against the accused which might influence the reasoning of a jury about his guilt. By and large, the significance of this influence, and thus the risk of unfair prejudice, is more likely to be all the greater where the case is otherwise in substance word against word. The risk is essentially incommensurable but it cannot be doubted that evidence likely to engender strong feelings of disapprobation may well be given undue weight, especially in those cases where judgment of comparative credibility is called for. It is not always disapprobation which is the only concern. In Harris v Director of Public Prosecutions [1952] AC 694 at 707 (cited with approval in Markby v R (1978) 140 CLR 108 by Gibbs ACJ at 116) the question is whether the probable effect of the proposed evidence “would be out of proportion to its true evidential value” (see also, Festa v R [2001] HCA 72; 208 CLR 593; 185 ALR 394 per Gleeson CJ at [22]). The evidence might simply be thought to prove more than it really does. Directions to disregard disapprobation are easy to craft; directions as to how much may be made of the tendency evidence are necessarily far less precise and can be difficult to apply.
The risks of misuse should not be underestimated. These matters are not, in the nature of the case, determined by pure reason or logical analysis. Indeed, in an oft-quoted passage, Gibbs ACJ said (in Markby at 117) –

“It is often difficult to decide whether a particular piece of evidence is or is not admissible within these principles. However when in doubt a judge should remember that the admission of similar fact evidence is the exception rather than the rule. To be admissible the evidence must have “a strong degree of probative force” (per Lord Wilberforce in R v Boardman [1975] AC 421 at 444), or “a really material bearing on the issues to be decided” (per Lord Morris of Borth-y-Gest [ibid at 439], citing Harris v Director of Public Prosecutions [1952] AC 694 at 710); it may not be going too far to say that it will be admissible only if it is “so very relevant that to exclude it would be an affront to common sense” (see per Lord Cross in R v Boardman at 456; and see per Lord Hailsham of St Marylebone ibid at 452–3). The question is thus one of degree, and in answering it the judge must apply… [the judge’s] experience and common sense.”

Where the evidence sought to be admitted is criminal or reprehensible the additional danger is that the jury may regard the character of the accused so adversely that they will not fairly weigh the evidence which he might give.

In R v Ellis [2003] NSWCCA 319; 58 NSWLR 700; 144 A Crim R 1 the question was whether, in light of the enactment of s 101(2) of the Act, the requirement stipulated by Mason CJ, Deane and Dawson JJ in Pfennig v R (1995) 182 CLR 461 at 482-3; 77 A Crim R 149 at 165 still applied –

“Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused … Here ‘rational’ must be taken to mean ‘reasonable’ and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.”

Spigelman CJ (with whom Sully, O’Keefe, Hidden and Buddin JJ agreed) considered that the language of s 101(2) substitutes a new and different test, so that the “no rational view” test no longer applied (Ellis at [88]). The statutory test is whether “probative value substantially outweighs prejudicial effect” (ibid at [89]). The Chief Justice pointed out (at [85]) that “the joint judgment in Pfennig identified the ‘no rational view test’ as the means of determining how it is that probative force and prejudicial effect should be balanced against each other” and concluded (at [89]) that this was inconsistent with the statutory test, requiring only that the probative value of the impugned evidence “substantially outweighs” its prejudicial effect. His Honour observed (at [88], [90]) –

“[The] statutory test … expressly requires a balancing process and tilts that process in the same direction as that which the joint judgment in Pfennig suggested, but by the use of different terminology, ie ‘substantially’ .
The Parliament has sought to achieve the same general objective as that which Australian common law had developed by the time of Pfennig, but it did so by the use of precise and different terminology.”

The “‘no rational explanation test’ may result in a trial judge failing to give adequate consideration to the actual prejudice in the specific case which the probative value of the evidence must substantially outweigh” (at [94]). This was not to suggest, however, that “the stringency of the approach, culminating in the Pfennig test, is never appropriate … [as there] may well be cases where, on the facts, it would not be open to conclude that the probative value of particular evidence substantially outweighs its prejudicial effect, unless the ‘no rational explanation’ test were satisfied” (ibid at [96]). Hidden and Buddin JJ agreed with the other members of the Court both as to the order proposed by the Chief Justice and his Honour’s reasons, but commented –

“[104] … Underlying the various formulations of the test for admission of similar fact or propensity evidence in the common law authorities is the recognition that evidence of that kind is likely to be highly prejudicial, and of the need to ensure that it is admitted only when the interests of justice require it. Its admission at common law is exceptional for reasons of policy, not of logic. These considerations should guide the balancing exercise required by the statutory provision, so that the test for admissibility under that provision remains one of very considerable stringency.
[105] In practical terms, that will have the consequence that in many, if not most, cases the application of the common law and the statutory tests will produce the same result.”

Spigelman CJ (Sully and O’Keefe JJ agreeing) responded –

“[99] … I do not agree with their Honours. In my opinion, the statutory formulation should operate in accordance with its terms. There is no need for an assumption that all such evidence is ‘likely to be highly prejudicial’, nor for guidance that the test for admissibility is ‘one of very considerable stringency’.”

With respect, the assumption suggested to be inappropriate was merely general observation about the general character of propensity evidence, one which, in my experience, is entirely justified. It is very rare that such evidence is relatively innocuous. Where its admissibility is contested, it will usually involve the commission of crimes or morally reprehensible acts. Such conduct is indeed likely to be highly prejudicial. To suggest this is so is not to limit or qualify the application of the Act in any way. Moreover, the test is certainly one of considerable stringency: unless the probative value of the evidence substantially outweighs its prejudicial effect, it must be excluded. With respect, I do not think that Hidden and Buddin JJ should be taken as suggesting an approach to the statutory test that did not actually evaluate the prejudicial character of the proposed evidence against its true probative worth. To my mind, their Honours’ remark was implicitly an admonition to take seriously the risk of prejudice where such evidence is sought to be led and not underestimate the potentially powerful undue influence that propensity or coincidence evidence might have. In the result, the significance of Ellis is merely negative, in the sense that, by reason of the statutory test, the “no rational view” test does not answer all cases: as the prejudicial effect of the impugned evidence varies, so too will its probative value in order to satisfy the test. There is nothing in the judgment that suggests that, under the Act, the potential for prejudice should be given any lesser measure than it had under the common law.
Although the process for determining admissibility of tendency evidence is now prescribed by the Act and not the common law, the requirement to weigh the risk of unfair prejudice against probative value is scarcely new. Accepting the Pfennig test is not that of the Act, its underlying rationale, that the potential for unfair prejudice is to be taken seriously and the character of its posited probative worth carefully analysed still applies. In Sokolowskyj, Hoeben CJ at CL said of this requirement –

“[56] … In the present case there was a real risk that, notwithstanding directions to the jury, the jury would see the appellant as a sexual deviant who had no credibility in denying the allegation against him, was not deserving of the benefit of any reasonable doubt and was the sort of person who was likely to have committed the offence alleged against him.
[57] Members of the jury might have so proceeded subconsciously, even accepting that they would have tried to follow the directions given to them. Had …[the trial judge] carried out the weighing exercise required by s 101, he should have concluded that the probative value of the evidence was not high and that it was substantially outweighed by the risk of unfair prejudice. In that regard, the observations of McHugh J in Pfennig v R [1995] HCA 7; 182 CLR 461 at 528-529 are pertinent:
‘39 ... the proposition that the probative value of the evidence must outweigh its prejudicial effect is one that can be easily misunderstood. The use of the term ‘outweigh’ suggests an almost arithmetical computation. But prejudicial effect and probative value are incommensurables. They have no standard of comparison. The probative value of the evidence goes to proof of an issue, the prejudicial effect to the fairness of the trial... If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.’”

It is worthwhile, as it seems to me, to set out McHugh J’s succinct and still relevant explanation of the applicable principle, which immediately precedes the above passage (references omitted) –

“38. But upon what basis should propensity reasoning be admitted?
Plainly, it cannot be admitted merely because it has probative or even
strong probative value. The risk of an unfair trial through the use
of propensity reasoning is too great to allow such a low threshold of
admissibility. Consequently, this Court has insisted that as a matter
of law and not discretion the probative value of the evidence must
outweigh or transcend its prejudicial effect …”

This makes it clear that the test propounded by his Honour in the last sentence of the succeeding, explanatory paragraph, was intended to set a substantial barrier to admission. At the same time it is inconsistent with the terms of s 101(2).

I acknowledge that I agreed in the judgment of Hoeben CJ at CL, but further reflection has led me to a different opinion about McHugh J’s “fair minded people” test (though not otherwise about the Chief Judge’s reasoning). There is no “fair minded people test” in s 101; nor does it mention the possibility of an unfair trial: the trial will be fair (in relation to tendency evidence) if its prejudicial effect is substantially outweighed by its probative value. If all that is meant by “the risk of an unfair trial” is one in which evidence was admitted whose probative value did not substantially outweigh its prejudicial effect, then plainly enough it is not inconsistent with the Act. But any different kind of risk is immaterial. It follows that I would respectfully disagree with what fell from Sully J (with whom Grove and Howie JJ agreed) in R v RN [2005] NSWCCA 413 (at [11]) that, “the essence of… [the] task” in considering whether the prejudicial effect of the impugned evidence was substantially outweighed by its probative value, was that described by McHugh J in the passage quoted above. (Although his Honour referred to Ellis, it was simply to support the proposition that each case must be decided on its own facts.) Similarly, with respect, the adoption of the “fair minded people” test by Beazley JA (Buddin and Barr JJ agreeing) in PWD at [71] is inconsistent with s 101.
The language of McHugh J seems to echo the reference to affronting common sense in the well known passage from the judgment of Gibbs ACJ in Markby at 116 in which his Honour deals with the various attempts to elucidate the relevant standard, which is still informative (citations omitted) –

“… The first principle, which is fundamental, is that the evidence of similar facts is not admissible if it shows only that the accused had a propensity or disposition to commit crime, or crime of a particular kind, or that he was the sort of person likely to commit the crime charged. The second principle, which is a corollary of the first, is that the evidence is admissible if it is relevant in some other way, that is, if it tends to show that he is guilty of the crime charged for some reason other than that he has committed crimes in the past or has a criminal disposition … It is often difficult to decide whether a particular piece of evidence is or is not admissible within these principles. However when in doubt a judge should remember that the admission of similar fact evidence is the exception rather than the rule. To be admissible the evidence must have ‘a strong degree of probative force’ … or ‘a really material bearing on the issues to be decided’ …; it may not be going too far to say that it will be admissible only if it is ‘so very relevant that to exclude it would be an affront to common sense’ … The question is thus one of degree, and in answering it the judge must apply his experience and common sense. Although the judgment which the judge is required to make is to some extent discretionary, the rule of exclusion is a rule of law and not of discretion, and the principle allowing the admission of the evidence remains subject to the discretionary power to exclude it, even if legally admissible, where its prejudicial effect outweighs its probative value. In applying the test of admissibility to which I have just referred, practical assistance, in many cases, will be obtained by considering whether there is a ‘striking similarity’ between the similar facts and the facts in issue.”

Even though the “striking similarity” test was not considered to apply universally to propensity evidence, substantial similarity was always important. That it would afford “practical assistance in many cases” points implicitly to the likely serious prejudice to which propensity evidence will often give rise; nor is the suggestion inconsistent with s 101.

Ellis has decided only that s 101(2) is to be applied according to its own terms without reference to other tests, in particular in respect of the evaluation of probative weight. It does not suggest that the notion that propensity evidence “has a prejudicial capacity of a high order” (Pfennig at 165) is mistaken. It is to this consideration, which is not a gloss upon, let alone inconsistent with, s 101, that Hidden and Buddin JJ were referring in their comments.
The language of the Act and the character of the test for inadmissibility under s 101 have obvious, longstanding roots in the common law. An example to be added to the excerpts referred to above is the following passage from the judgment of Dawson and Gaudron JJ in B v R [1992] HCA 68; 175 CLR 599 at 617-8; 63 A Crim R 225 at 239 (cited as a “convenient starting point” by Toohey J in Pfennig at 178-9) –

“Evidence that an accused has committed offences other than those with which he is charged ought not be admitted if it tends to show only that the accused has a propensity or disposition to commit criminal offences of a particular type or generally. If a propensity or disposition of that kind is all that the evidence tends to show, then its prejudicial nature must be greater than any relevance which it might have. To admit such evidence would be to invite the jury to proceed upon prejudice or suspicion rather than proof. But if the evidence of other offences goes beyond showing a mere propensity or disposition to commit crime or a particular type of crime and points in some other way to the commission of the offences in question, then it will be admissible if its probative value for that purpose outweighs its prejudicial effect. That is not to say that it may not still be evidence of propensity or disposition, but it will then be evidence of propensity or disposition of a particular kind which in the circumstances has a degree of relevance justifying its admission …” [Citations omitted.]

For all that the “no rational explanation” test no longer applies, it was a response to the need to protect a trial from the distorting effects of unfair prejudice in light of a perception – no less reasonable now – that a jury might well have difficulty in dispassionately considering their verdict without prejudice towards the accused and thus convert suspicion into certainty when the evidence, considered appropriately, did not justify that conclusion. That, too, is the essential function of s 101(2). There is nothing in it which suggests that the risk to which it refers is any less than has always been recognised by the common law, nor is the need that the risk be substantially outweighed by probative value anything new. Its effect is simply that the issue of admissibility is to be decided without applying a predetermined standard of probative value but, rather, one that varies with the degree of potential prejudice.
It is trite that the risk of unfair prejudice might be overcome by appropriate directions. However, it cannot be assumed that they will be effective to obviate it. In Sokolowskyj, Hoeben CJ at CL said, concerning the sufficiency of directions in the particular circumstances –

“[56] A further consideration is this. An assumption that a judicial direction to the jury designed to minimise the risk of unfair prejudice will be completely effective would effectively prevent s101(2) operating as a safeguard against the potential risk of miscarriages of justice arising from the admission of tendency evidence. In the present case there was a real risk that, notwithstanding directions to the jury, the jury would see the appellant as a sexual deviant who had no credibility in denying the allegation against him, was not deserving of the benefit of any reasonable doubt and was the sort of person who was likely to have committed the offence alleged against him.
[57] Members of the jury might have so proceeded subconsciously, even accepting that they would have tried to follow the directions given to them. Had his Honour carried out the weighing exercise required by s101, he should have concluded that the probative value of the evidence was not high and that it was substantially outweighed by the risk of unfair prejudice…”

It is also worth noting the essay by Mirko Bagaric “The community interest in bringing suspects to trial trumps the right to an impartial decision maker – at least in Victoria” (2010) 34(1) Criminal Law Journal 5 at 8 about the issues raised by pretrial publicity and the disinclination of Courts to stay prosecutions for that reason. Mr Bargaric characterised the judicial belief that jury directions can cure negative impressions formed about an accused as “near heroic” and points out that there “is no evidence to suggest that this is anything other than judicial wishful thinking”. He notes that “human memory and cognition is a complex science” and refers to “a body of work [cited in footnote 4] that suggests that once people form an adverse view they cannot simply discard their preconceptions upon command”. An additional aspect of this problem is shown by the recent jury study, Jurors’ Notions of Justice, An Empirical Study of Motivations to Investigate & Obedience to Judicial Directions (September 2013) undertaken by Professor Jill Hunter of the UNSW Law School. Although it focusses on the attitudes of jurors towards obtaining their own information contrary to directions not to do so, it exposes some of the real difficulties that jurors have with understanding the accusatorial nature of criminal trials and their frustrations with what is seen as limiting the discovery of truth.
The conscientiousness with which juries approach their responsibilities is not doubted and, at all events, must be taken for granted. But even conscientious attempts to follow corrective directions may well not be effective. Part of the power of feelings of indignation, disgust or disapprobation is the tendency to overestimate one’s ability to put them to one side and to remain unaware of their subconscious influence. Furthermore, the evidence is given by the victim in the presence of the jury, an emotional context likely to excite sympathy. The particular attitudes that a juror might have to the prejudicial evidence cannot be known and the judge necessarily is driven to rely on his or her experience of ordinary human reactions. Judges, if I may respectfully say so, should be cautious about relying too much on their own experience of detachment, bearing in mind that their judicial duties expose them relatively often to disgraceful, wicked conduct or tragic circumstances, which they must deal with dispassionately. It is worth reflecting that years of doing so might lead to an underestimation both of the emotional impact that the material could have on lay people and the real difficulty of achieving objectivity. Nor, despite conscious attempts (assisted by the need to write a judgment and the often substantial ensuing delay) will even a judge always succeed in achieving objectivity. The canard of the common law Bar that bringing the quadriplegic plaintiff into court is as effective, or almost as much, with a judge as with a jury in putting a thumb on the scales, is the product of long experience and hard-headed realism. In short, it is necessary to be realistic about the actual ability of jurors to put aside indignation, disgust or disapprobation, even when given strongly worded directions. This is not to account for the problem – highlighted in Professor Hunter’s jury study – that the prejudicial material might lead a juror to minimise the importance of the directions or even to disregard them altogether in order to do what is believed to be justice.
This emphasises the importance of carefully assessing both the character and likely effect of the tendency evidence in light of proposed directions and its evidential value.

Consideration

The reasons of the primary judge were ex tempore and, therefore, it is necessary to focus on the substance of the reasoning, which might not altogether be clearly articulated by the language. Her Honour does not explicitly set out the prejudicial effect the proposed evidence might have, nor the extent of its probative weight. Essentially, her Honour moved straight to the conclusion that directions would adequately deal with the possible misuse of the evidence by the jury reasoning that, because of the number of complainants, the allegations must be true, or otherwise using it “on a basis logically unconnected with the issues in the case”, this being a reference, as I understand it, to the submission by counsel that the jury might draw adverse conclusions, including disbelieving the applicant’s denials, because of disgust of or disapprobation towards him.
The real question in this case, as pointed out by Hoeben CJ at CL in Sokolowskyj at [48], is the danger that the “jury would use the evidence in the way they were directed not to use it”. A child sexual assault trial is inevitably emotionally charged and evidence of the applicant’s promiscuous interest in young children of both sexes would be very likely to inflame the jury with feelings of indignation, disgust and condemnation. As I have said, there was no discussion by her Honour of the prejudicial nature of the evidence itself or its capacity to influence the jury against the applicant; nor as to the risk that directions might not suffice (though her Honour accepted that judicial directions do not cure everything). With respect, the nature of the particular prejudice and the capacity of directions to deal with it required explicit consideration as an essential part of the balancing process required by s 101. So far as D was concerned, the applicant was aged 25 to 28 years and the complainant was 4 and 5 years old. Any allowance that might have been made for the applicant’s relatively young age at the time of the earlier offences was no longer available; the offence was premeditated (on the first occasion the applicant put jam on his penis and told the complainant he could not watch television until he fellated him); D was also male; and he suffered from some mental problems. These offences (counts 19 and 20) were particularly obnoxious and very likely to engender extremely strong feelings of antipathy for the applicant and sympathy for the complainant. This particular example illustrates the necessity for characterising the particular prejudice that might be excited in respect of each charge or set of charges as part of the weighing process and whether it was reasonable to consider that directions would overcome the prejudice or whether, despite strong directions, the prejudice was so great that there could remain a real risk that the jury would continue to be influenced by it. Also likely to be particularly troubling were the offences committed when the applicant was 20 or so (counts 17 and 18). At the other end of the (nevertheless prejudicial) scale might be thought to be the offences contained in counts 1 to 3 when, although the complainant was 5 years old, the applicant was (on the view most favourable to him) aged only 11. (The uncharged offence was also in this class.) The extent to which the feelings engendered by the offences in counts 17,18,19 and 20 would affect not only the jury’s consideration of those offences but also the others for which the applicant was on trial was a difficult question. However, the primary judge did not discuss it and the reasons were little more than a recitation of the requirements of ss 97(1)(b) and 101(2) without analysis of the issues thrown up by the proposed evidence. Simply to state the risk is not to assess it.
An additional difficulty with the reasons of the primary judge, with respect, is they do not contain any balancing of the probative value of the evidence against its prejudicial effect. A finding, as here, that the evidence is “important” does not, with respect, answer the question in s 101(2) whether its probative value “substantially outweighs” its prejudicial effect, though I would readily accept that it answers the question of significance for the purpose of s 97(1). The prejudicial effect of each set of charges is very substantial, increasing as the applicant grew older. That of the evidence supporting charges 19 and 20 is difficult to overestimate: the applicant was about 25 (perhaps 28) years old whilst the complainant, also male, was merely 4 or 5 and suffers from various personality disorders. Its probative value, with that of the other evidence, would need to be very high indeed, if it were to outweigh its appalling prejudicial effect. The Crown case focuses not so much on the applicant’s conduct at particular ages but on the overall pattern, but this avoids the question whether, to take the extremes, the sexual activity of a child does at the age of 11 tell one anything significant about what he or she might do at the age of 24. Or, if one started at the other end, what the sexual conduct of a 24 year old would say about his or likely conduct at the age of 11. The focus on pattern obscures the essential task of identifying the probative weight of the particular tendency demonstrated in each charge or in relation to each of the other charges to which it is said to be relevant. So far as counts 1 to 3 are concerned, accordingly, the issue of doli incapax is an additional complication not, as it appears the primary judge thought, the only question. Difficulties of a similar character, though to a somewhat lesser degree, are presented by the probative value of any tendency shown by the applicant’s alleged sexual conduct when he was 16 (though he might have been 18), in respect of counts 4 to 7, 8 to 11 and 12 to 15, so far as counts 16, 17, 18, 19 and 20 are concerned. Tendency is usually concerned with the acts of an adult demonstrating that adult’s propensity to do certain things. However, it is highly speculative, to my mind, to attempt to deduce the likely conduct of an adult from his or her conduct as a 16 year old, let alone from his conduct as an 11 year old or even that of a 16 year old from his conduct as an 11 year old. This was the problem engaged by counsel for the applicant’s reference to disparate ages; and, to my mind, it is one of significant difficulty requiring explicit consideration. With respect, it appears to me that the primary judge’s failure to consider this aspect of the case and, instead, focus on the contended for pattern was to omit highly relevant factors in weighing the probative value of the evidence. It may be that the emphasis placed by both prosecution and defence on the problem of doli incapax had the effect of deflecting her Honour from considering the more important issue raised by the applicant’s age at the commencement of the series of offences.
Although I have posed the question of weight as one of significance, the real question is posed by s 101, namely whether the probative worth of the evidence substantially outweighed its prejudicial effect. Whether it did so required an analysis of the nature and extent of the likely prejudice and the evidentiary weight of each class of evidence. It is only when this task had been undertaken that the question whether and, if so, what directions would have been adequate to avoid the risk of unfair prejudice could be answered by the primary judge. With respect, the primary judge did not either in terms or in substance undertake the duty reposed in her by s 101(2). It follows that the discretion as to whether there should have been separate trials miscarried, leave to appeal should be granted and ground 2 upheld.

It is not necessary to consider the other grounds of appeal since, in the event that error was demonstrated, the Court was invited by the parties to consider the question of separate trials itself, rather than remit the issue to the District Court, a course with which I agree.

Conclusion

It is as well to set out explicitly the fundamental reason why the evidence of other sexual activity may be regarded as relevant to a particular charge under consideration. I found the following passage from the judgment of Leonard v The Queen [2006] NSWCCA 267; 164 A Crim R 374 a helpful explanation –

“[49] … It seems to me that, where a man is charged with particular sexual assaults against a complainant, evidence that he committed similar assaults against the complainant on other occasions could be relevant in at least three different ways, only one of which would be as tendency evidence:
(1) It may be relevant to the extent of removing implausibility that might otherwise be attributed to the complainant’s account of the assaults charged if these assaults were thought to be isolated incidents, in particular implausibility associated with the way each party is said to have behaved on these particular occasions.
(2) It may be relevant in supporting an inference that the accused was sexually attracted to the complainant, so that he had a motive to act in a sexual manner towards the complainant.
(3) It may be relevant in supporting an inference that the accused not only had the motivation of sexual attraction, but also was a person who was prepared to act on that motivation to the extent of committing sexual assaults.
[50] Categories (1) and (2) depend entirely on the other sexual assaults being committed against the same person. Category (3) does not depend entirely on that, although generally evidence used for this purpose can have strong probative value only if the other assaults are against the same person.
…
[68] … I would accept that, even if there are theoretical distinctions between purposes (2) and (3), they may be considered of little practical significance where the complainant is a young child: sexual feelings of adult males towards young children are considered abnormal, and the ordinary motivational force of sexual feelings referred to in (2) cannot easily be kept distinct from a perception that a person having such feelings towards a young child is a particular kind of person who is likely to act on these feelings (engaging purpose (3)). Thus, evidence in such cases is not like evidence that a person charged with stealing (say) a rare stamp has a keen interest in such stamps, which would not be considered tendency evidence: it is unrealistic to liken evidence linking the ordinary human motivation of sexual feelings to a particular child, to evidence linking the ordinary human motivation of avarice to a particular kind of object such as a rare stamp, because as soon as one suggests that an adult male has sexual feelings towards a young child, one almost inevitably suggests that the person in question is the kind of person who is likely to assault the child.”

It will be recalled that the Crown relied on and the primary judge accepted that the applicant’s conduct depicted what was submitted to be a pattern of conduct. Essentially, the tendency relied on as probative was the fact, if true, that the applicant had “consensual” sexual contact of various kinds, mostly involving fondling and fellatio and, on one occasion, penile intercourse, with very young children with whom he came in contact when, for some reason or other, he was an invitee in their homes. It is obvious that, although the primary judge did not explicitly refer to it in this context, by far the most significant feature of the course of conduct is that the applicant was significantly older than the complainants. Indeed, were it not for this factor, the evidence of his conduct could not be considered to have any probative worth: if the applicant were the same age, more or less, as the complainants, his conduct would be evidence of no more than unremarkable sexual activity; a mere interest in or, even, obsession with sex would not have any probative worth. The focus of the analysis of probative value must encompass, therefore, not only the ages of the complainants but also the age of the applicant.
I would be prepared to accept, for the purposes of s 97, that the evidence of sexual conduct as an adult (as alleged in counts 16, 17, 18, 19 and 20) will have significant probative value, enlivening the question posed by s 101(2). However, so far as counts 1, 2 and 3 (and the evidence in respect of E) are concerned, I am not satisfied that it would have significant probative value in proof of any of the other counts, given the applicant’s young age at the time of the former conduct. Aside from the difficulty of predicting with any sufficient degree of likelihood from what the applicant did when he was a child of 11 or 13 years what propensities he might have as an adult, I do not think it to be sufficiently understood – and common sense is not an adequate guide – whether the alleged sexual conduct of the applicant at that age is “abnormal” in the relevant sense. Moreover, conduct committed at a time when a perpetrator may be too young to appreciate that what he or she is doing is seriously wrong is fundamentally different from what is otherwise the same conduct committed when its character is fully understood. This is not to give weight to the fact that, as it happens, the doctrine of doli incapax might apply to the earlier acts, since that is material only in the technical sense that it involves an additional element which the Crown must prove should the perpetrator be charged.
I have already mentioned the very great prejudicial effect that evidence of sexual interference by an adult or even a teenager of a young child is likely to produce, particularly where the child is of the same sex. It is scarcely possible to overstate the emotional power of the label “paedophile”. It is inevitable that such evidence is very likely to engender the strongest feelings of disgust and disapprobation towards an accused and, on the other side, strong feelings of sympathy for the complainant. Obviously, this will make the task of dispassionately weighing the evidence of the complainant and of the accused (were he to give evidence) very much more difficult than if these strong emotions were not in play. One must accept that appropriate directions might ameliorate the prejudice to a degree but whether they would be likely to be sufficient to obviate real or substantial risk that the tendency evidence would be unfairly used against the accused, so that the probative value of the evidence will substantially outweigh its prejudicial effect, is a difficult question. The directions, in substance, will instruct the jury that they must not reason from the fact that the accused has a tendency, if they so find, to have sexual contact with young children where, by happenstance, he is able to do so, to his guilt of any particular charge and that the Crown must prove beyond a reasonable doubt, not only the charges said to be evidence of the tendency, but that he gave in to that tendency and committed the other alleged sexual acts. They must put aside any feelings of emotion, either towards the complainant or against the accused, and consider the evidence objectively and dispassionately. The tendency, if proved, is a relevant fact to be taken into account but the jury must carefully weigh up the evidence of the particular charge.
Counts 4 to 7 (involving B) and 8 to 11 and 12 to 15 (involving A) were allegedly committed when the applicant was 15, 16, 17 or 18 years of age. It is appropriate, for present purposes to assess its probative weight as tendency evidence for relevance to the other alleged charges on the basis he was 16 years old. Even accepting (which I doubt) that this conduct would be significantly probative (vide s 97) of the charges allegedly committed when he was aged 19 (count 16), 20 (count 17), between 21 and 23 (count 18) and between 25 and 28 (counts 19 and 20), its probative weight, to my mind, is relatively slight when weighed against its prejudicial effect or, to use the language of s 101, does not substantially outweigh its prejudicial effect, even assuming that strong directions against misuse are given.
Taking counts 1 to 3, 8 to 11 and 12 to 15 as a distinct category in light of the applicant’s age at the time they were allegedly committed, if a joint trial of all offences were to be conducted, it would be necessary to instruct the jury that the evidence on counts 1 to 3 could not be used to establish a tendency in proof of the other counts, although it could be used as relationship evidence. As to counts 8 to 11 and 12 to 15, the probative weight of one offence could be used, in my view, as establishing a tendency relevant to the other counts since, to my mind, its probative weight would substantially outweigh its prejudicial effect. The complicating feature is that it would be vital for the jury to understand that the evidence of counts 1 to 3, if accepted by them, could not be used as tendency in considering the other counts. Count 16 is in a separate class, since the applicant was about 19 years old at the time it was allegedly committed. In accordance with the view expressed above as to the significance of the applicant’s age at the time of the earlier offences, the evidence of those offences cannot be used as tendency evidence in support of this last offence since their prejudicial effect is not outweighed by their probative value. However (together with that of counts 1 to 3), that evidence would be admissible as relationship evidence in relation to count 16. Leaving aside difficulties that the jury might have in understanding and applying directions to this effect, the prejudicial effect of the evidence is very great and there is a substantial or, at least, real risk that, despite the directions, the jury will consciously or unconsciously use their conclusions as to counts 8 to 11 and 12 to 15 as tendency rather than relationship evidence or, assuming they find count 16 proved, wrongly use that finding in considering the earlier counts. It cannot be assumed that the jury will consider the counts in numerical or chronological order. It follows, as it seems to me, that there must be a separate trial of counts 1 to 3, counts 8 to 11 and counts 12 to 15 on the one hand and count 16 on the other. Alternatively, there could be a trial of all the counts involving offences against A on the basis that the evidence of the sexual conduct was relationship or context evidence and not tendency evidence.
So far as the counts involving B are concerned (4 to 7 and 18), the evidence of the offences should not be used as tendency evidence given the disparity in the ages of the applicant on each occasion giving rise to the counts. Although the evidence of counts 4 to 7 is relevant as relationship evidence in respect of count 18, for the same reasons as concern the charges involving A, the evidence proving count 18 is extremely prejudicial; it has slight probative weight in respect of the other counts and therefore cannot be used as tendency evidence in proof of them. The risk of prejudice, to my mind, is so great that despite appropriate directions, counts 4 to 7 must be tried separately to count 18. Otherwise, again, the charges could be tried together if the evidence were to be available only as relationship or context evidence.
The question which then arises is whether there should be a joint trial of counts 4 to 7 with counts 8 to 11 and 12 to 15, which are alleged to have occurred when the applicant was about 16 years of age. In this event, the tendency alleged would be to the effect that, as a 16 year old, the applicant had a propensity to engage in “consensual” sexual activity with prepubescent children of either sex. If counts 1 to 3 were to be tried with these counts (as I have already said, I would permit a joint trial of those counts with counts 8 to 11 and 12 to 15), the complicating feature would be that the evidence of the earlier counts would be inadmissible either as relationship or tendency evidence in respect of counts 4 to 7. It is highly prejudicial and I do not think that directions would be sufficient to ensure it would not be unfairly used. Accordingly, I would separate the trials of counts 1 to 3 on the one hand and 4 to 7, 8 to 11 and 12 to 15 on the other.
That leaves counts 17 to 20, all of which were allegedly committed when the applicant was an adult but involving three complainants, of whom two are female and one male. C and D were about 5 years old at the time, whilst B was 10. In respect of the offences involving C and D, it seems to me that the probative worth of the evidence concerning them does substantially outweigh its prejudicial effect. This is not so clear so far as the offence against B is concerned but, on balance, I think the fact that she was prepubescent and the applicant was 21, 22, or 23 are sufficient, with the surrounding circumstances, to give the evidence of this offence sufficient probative value in respect of the other alleged offences as to substantially outweigh its prejudicial effect. I would not order separate trials of these offences, subject to resolving the issue of concoction or contamination, which arises because counts 17 and 18 concern C and B, who are sisters.

Concoction and contamination

In AE v R [2008] NSWCCA 52 the Court (Bell JA, R S Hulme, Latham JJ) said –

“[44] The happening of the assaults against PNE and CNE was in issue at trial. This was a matter that was significant to the assessment of the probative value of the evidence demonstrating the relevant tendency evidence as well as by way of coincidence reasoning. The Judge approached the matter by considering whether the Crown had excluded the possibility of joint concoction. He found that it had. If two or more persons make similar allegations about another in circumstances in which no possibility of joint concoction exists the allegations may possess significant probative value for the reasons that are explained in Hoch v The Queen (1988) 165 CLR 292 at 296 per Mason CJ, Wilson J and Gaudron J at 296. If the possibility of joint concoction cannot be excluded the evidence does not possess the same probative value since there exists another explanation for the circumstance that each complainant has made like allegations. Hoch was concerned with the admission of similar fact evidence under the common law and propounded the “no other rational view” test that was adopted in Pfennig v The Queen (1995) 182 CLR 461 at 482-483 per Mason CJ, Deane J and Dawson J. This is not the test for the admission of tendency or coincidence evidence under the Act: R v Ellis [2003] NSWCCA 319. However, it was not an error to consider the possibility of joint concoction in assessing the probative value of the evidence. To the extent that his Honour did so, it was an error to find that there was no possibility of joint concoction: the complainants were sisters and were in contact with one another at the time each made her complaint. Insofar as the Judge assessed the probative value of PNE’s allegations as being substantial in proof of the allegation that the appellant assaulted CNE his Honour erred.
[45] The evidence of the assaults on PNE was not admissible on the trial of the counts involving CNE unless its probative value substantially outweighed any prejudicial effect that it may have had on the appellant. The prejudicial effect is likely to have been great. This is so notwithstanding that the jury acquitted the appellant on 12 of the counts which depended on PNE’s evidence. The jury may have accepted PNE as truthful but considered that her recall of the offences was not sufficiently reliable to establish beyond reasonable doubt the happening of the events as they were particularised in the indictment. The risk that the jury would be overwhelmed by the evidence of the long course of sexual misconduct against PNE in considering whether the Crown had proved the counts charging offences against CNE was real. We consider that the Judge erred in concluding that the probative value of PNE’s allegations as evidencing a tendency to sexually molest young female members of the appellant’s household substantially outweighed any prejudicial effect the evidence might have on the appellant’s case.”

It is clear from the test applied in [45] that their Honours were considering the significance of the issue of concoction for the purposes of applying s 101, accepting that it was relevant to weighing the probative value of the evidence for tendency purposes. The possibility of concoction, by this reasoning, reduces the value of the evidence and may lead to its exclusion as (with the other evidence) not substantially outweighing the prejudice it engenders. However, as distinct from the position before the Act, the possibility of concoction does not ipso facto so reduce its probative value as to mandate its exclusion.

In BP v R; R v BP [2010] NSWCCA 303 Hodgson JA (Price and Fullerton JJ agreeing) said –

“[110] One matter that powerfully affects both the probative value of tendency evidence and the possibility of prejudicial effect is the risk of concoction or contamination of evidence. If the evidence of tendency from different witnesses is reasonably capable of explanation on the basis of concoction, then it will not have the necessary probative value: Hoch v The Queen (1988) 165 CLR 292. However, this will be so only if there is a real chance rather than a merely speculative chance of concoction: R v Colby [1999] NSWCCA 261 at [111], R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433 at [74], [112]. The onus is on the Crown to negate the “real chance” of concoction: OGD at [74], R v F [2002] NSWCCA 125; (2002) 129 A Crim R 126 at [48].
[111] Relevant to consideration of concoction are the factors mentioned in Hoch at 297, namely relationship, opportunity and motive. One of these on its own is not sufficient to base a finding of a real possibility of concoction: R v RN [2005] NSWCCA 413 at [15], OGD at [111] – [112].
[112] In my opinion, subject to the question of concoction, to which I will return, features of the appellant’s conduct described by each complainant were sufficiently similar and sufficiently unusual for the evidence of each of them to have significant probative value in showing the specified tendencies …
[115] Turning to the question of concoction, in my opinion no error is shown in the trial judge’s finding that there was no real possibility of concoction.
…
[123] [In relation] to the submission that there was a risk of contamination] … it is not a risk of any contamination whatsoever that would necessarily require the exclusion of evidence: it must be a risk of contamination that goes to the substance of the evidence, and not merely to incidental details of no materiality. I accept that, unless the Crown negates a real chance of contamination going to the substance of the evidence, then the evidence of other witnesses should not be admitted as tendency evidence. However, the risk of unconscious influence as to incidental details would not in my view necessarily require the evidence to be excluded.
[124] Whether or not this view is correct, in my opinion, having regard to the circumstances I have referred to, no error is shown in the trial judge’s finding that there was no real possibility of contamination in this case.”

No reference was made to AE and, although Ellis was cited (at [109]), this was not a propos either Pfennig or Hoch v The Queen [1988] HCA 50; 165 CLR 292. However, BP (as with AE) appears to be authority at least for the proposition that evidence suggesting the [real] possibility of contamination or concoction is relevant to the assessment of probative weight: see also FB v R; R v FB [2011] NSWCCA 217; cf BJS v R (No 1) [2011] NSWCCA 239, BJS v R (No 2) [2013] NSWCCA 123 and Jones v R [2014] NSWCCA 280 preferring the approach of AE to the significance of Hoch. Neither Court in BP or AE considered the possible application of R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 (perhaps because it was concerned with s 137 of the Act and not s 101 although, as Spigelman CJ pointed out (at [57]), the approach to both sections was “similar”), which held that, except in “limited circumstances”, issues of credibility or reliability are not relevant in the question of admissibility; rather, the evidence must be taken at its highest: [51]-[57]. This followed from the meaning of “probative value” in the Dictionary, defined by reference to the extent to which the proposed evidence “could” rationally affect the relevant assessment.

Later in the judgment her Honour applied s 97(1)(b) in a manner consistent with Fletcher (as explained by DSJ No 1) before concluding that the evidence “will have significant value in the jury’s deliberations”. Thus her Honour did not find that the allegations were “similar”. Instead her Honour had regard to the similarities between the allegations as part of the assessment of whether the test in s 97(1)(b) was made out. This approach was entirely orthodox (see R v PWD [2010] NSWCCA 209; 205 A Crim R 75; “PWD”).
Nevertheless I would not dismiss this ground on the basis that it is a challenge to a finding that was not made but instead treat it as a challenge to her Honour’s ultimate finding that the evidence satisfied s 97(1)(b). Such a finding can only be challenged in this application on the grounds stated in House v R [1936] HCA 40; 55 CLR 499 at 504 to 505 (DAO v R [2011] NSWCCA 63; 278 ALR 765, at [70] per Spigelman CJ; at [81] per Allsop P; at [157] and [171] per Simpson J; at [210] per Kirby J and [211] per Schmidt J). Given that it was accepted that the correct test was applied and the submissions do not point to any relevant matter that was omitted or irrelevant matter that was taken into account, other than the issue raised by ground 1, this ground reduces to a contention that her Honour’s finding that s 97(1)(b) was satisfied was “unreasonable” because the allegations were too disparate in nature for them to have significant probative value in relation to any of the counts.
The written submissions in support of this ground contended that the acts commenced with “touching” and progressed and that the type of touching, being under the complainant’s clothes, was “commonplace” as was the occurrence of the events in the applicant’s home. They further contended that the “striking feature” about these allegations is the “degree of dissimilarity” between them in that two of the complainants were male, two were female, there is only one allegation of sexual penetration namely the alleged offence involving B, only one of the complainants is alleged to have a cognitive impairment, namely D, and in the case of B there was evidence that she was later in a consensual relationship with the applicant when she was 16. The last of these matters is irrelevant to the present issue which is directed to the similarities between the conduct the subject of the offending. The applicant’s relationship with B took place well after the time he is alleged to have committed offences against her. Otherwise none of the other matters raised warrants any interference with the trial judge’s assessment that the similarities in the allegations supported a determination that the evidence had significant probative value. Some features may be “commonplace” with allegations of this kind but that does not deny them some significance to a determination of whether s 97(1) was satisfied.
In oral submissions Senior Counsel for the applicant, Mr Stratton SC, further contended that there was no “pattern” to the offending and that it was not correct that the offences took place in the “complainant’s house” in that counts 1 to 3 took place in the complainant’s home, count 16 occurred in bushland and counts 4 to 7, 8 to 11, and 18 to 20 occurred at a place where they were both living. However this overlooks the significance that her Honour attributed to the location of the alleged offending, namely that it was indicative of the applicant having occupied some “wider position of trust” vis-à-vis the complainants. As noted by the Crown “in all cases the [alleged] conduct commenced when the applicant was a guest [at the relevant] house at the invitation of the complainant’s parents”.
The effect of the trial judge’s assessment was that the evidence sought to be led was capable of demonstrating “a pattern of behaviour, modus operandi, system or pattern and common threads ... in the [applicant’s] conduct” (PWD at [35] per Beazley P). The allegations had a number of common or similar features, namely the young age at which some of the complainants were first abused and then abused later when they were older, the complainants were each known to the applicant, the above occurred in a context where he was trusted to exercise some form of supervision of them, and he did not force himself on the complainants but sought their consent or made a request. True it is that not all features were present with all complainants but that was not necessary.
Subject to considering the remaining grounds of appeal, no basis has been demonstrated for interfering with the trial judge’s assessment as to the existence of similarities between the conduct the subject of the allegations or the significant probative value of the evidence in support of them.
I would reject ground 4 of the appeal.

Grounds 2 and 3: Application of Section 101 of the Evidence Act

Ground 2 of the application contends that the trial judge did not apply the correct test for the admission of tendency evidence. Ground 3 contends that the trial judge incorrectly found that there was (in effect) no danger of unfair prejudice. The submissions in support of ground 2 confirm that the relevant test that was said not to have been applied was that set out in s 101(2) of the Evidence Act 1995. These grounds can be dealt with together.
Although it is set out in the judgment of Adams J, it is necessary to repeat the submission on prejudice that was made on behalf of the applicant to the trial judge:

“It is my submission that the primary … unfair prejudice is that a jury, despite any direction that the Court could give, may well reason, ‘Well they couldn’t all be lying, they couldn’t all be making it up’. And that’s impermissible reasoning in relation to one complainant, but lay people could well reason that way.
And if your Honour would say, ‘You shouldn’t reason that way’, it’s exactly as Hoeben [CJ at CL] said in … Sokolowskyj [v R [2014] NSWCCA 55] … [that] one of the dangers of unfair prejudice was that the jury would use the evidence in the way they were directed not to use it, to show [in that case] that the appellant was the sexual deviant who, as a result, was the sort of person who was likely to have committed the offence alleged against him.
The second danger was that the jury would be so emotionally affected by the evidence that they would disregard the appellant’s account in the police interview and disregard the directions to assess the evidence in an unemotional manner. The third danger was that the jury might be disinclined to give the appellant the benefit of any reasonable doubt.”

It can be seen that this submission reflected the passage from Sokolowskyj extracted above. The trial judge addressed this contention as follows:

“It was submitted that the jury would misuse this evidence, but counsel had some difficulty in actually elucidating how a jury would misuse this evidence.
For example, it was suggested that they would misuse the evidence by incorrectly reasoning that, if there were so many complainants, then the allegations must be true.
Where there is a tendency argument, such a consideration would always be something that a judge would give strong directions against, and it is, indeed, part of the standard directions that a judge gives in relation to tendency evidence.
The jury are clearly told that they have to be satisfied, firstly beyond reasonable doubt in relation to each of these particular events, and then must be satisfied beyond reasonable doubt in relation to each of the particular events as to whether it does, or the corollary, does not, show that the accused has a tendency as the Crown will submit. It is a two stage process that the jury are given to understand they must undertake.
It was suggested to me that judicial directions cannot cure everything. Well that is certainly the case, and that is why the Court would have to be satisfied that there is no unfair prejudice, nor a danger that a tribunal of fact will use the evidence on a basis logically unconnected with the issues in the case.

The first type of prejudice that is identified in the extract at [105] above is that the jury might reason that “they couldn’t all be lying, they couldn’t all be making it up” which is said to be “impermissible reasoning”. Although it is not entirely clear it appears that her Honour accepted that contention as identifying a possible form of prejudice but stated that it could be overcome by a direction. If anything this was only an error in the applicant’s favour. If the jury were to have regard to the number of complainants giving evidence of the occurrence of similar events over a number of years that would not per se be impermissible. The jury would be entitled to give weight to that matter as part of the assessment of whether the events said to demonstrate the tendency occurred. This is reflected in the standard direction for tendency evidence in the bench book which contemplates the jury being instructed that in making a finding that a particular act said to be evidence of the alleged tendency occurred the jury should “not consider each of the acts in isolation but consider all the evidence and ask yourself whether you are satisfied that a particular act or acts relied upon actually took place”.
Otherwise the forms of prejudice that were identified to the trial judge in the extract set out above at [105] were directly reliant on the passage from Sokolowskyj at [48] discussed above at [78] to [81]. For the reasons there stated that passage was taken out of context and was inapposite. In those circumstances the trial judge was correct to observe that there was a difficulty in identifying the prejudicial effect of the tendency evidence sought to be adduced. No relevant form of prejudice was in fact identified. In substance the effect of the submission made to her Honour was that it would be prejudicial to treat evidence tendered to demonstrate the applicant had a particular tendency as tendency evidence. In fact the only relevant form of prejudice that pertained was the risk of the jury reasoning in the impermissible manner that is always present with such evidence and which the standard directions warn against.
The written submissions in support of these grounds contend that the passage from the trial judge’s reasons set out at [106] reveals an error of the kind identified by Hoeben CJ at CL in the following passage from Sokolowskyj at [52]:

“That error was compounded when his Honour came to consider the s101 question in that there was no attempt to assess the prejudicial effect of the tendency evidence and to balance that against its probative value. What his Honour did was to assume that a judicial direction to the jury designed to minimise the risk of unfair prejudice would be completely effective. He did that without ever having assessed the risk of unfair prejudice.”

I do not accept this submission. Her Honour sought to engage with what was submitted to be the prejudicial effect of the evidence but struggled to do so because it was based on an appeal to a passage in Sokolowskyj that was taken out of context. In this case, and unlike Sokolowskyzj, there was no particular prejudice identified or apparent. In those circumstances there is no error in the approach taken by her Honour of dealing with the general risk of prejudice that arises from the adducing of tendency evidence by pointing to the directions that will be given to the jury. The position was explained by Latham J (with whom Giles JA and Rothman J agreed) in R v SK; SK v R [2011] NSWCCA 292 at [34]:

“ … the applicant did not identify how the risk of misuse of the evidence by the jury could arise. It is no answer to make general statements about the arousal of prejudice. A jury's antipathy towards an accused, assuming that the accused is guilty and failing to properly consider a defence are all potential by-products of tendency evidence. In that sense, the nature of tendency evidence is inherently prejudicial, hence the need for strong directions, including the requirement that the tendency evidence be proved beyond reasonable doubt. It is not however, prejudicial simply because it tends to prove the commission of the offences. That constitutes, subject to proper directions, appropriate use of the evidence, not its misuse.”

It follows that I would reject grounds 3 and 4.

Ground 5: Reasonable possibility of concoction

Ground 5 of the application contends that her Honour erred in determining whether or not there was a reasonable possibility of concoction. This ground relates to the evidence of B and C, who are sisters. As there is some controversy as to whether a suggestion of concoction should be dealt with at the point of considering s 97(1), s 101(2) or at all, I have considered this ground separately.
The applicant’s written submissions to the trial judge contended that there was “a real possibility of contamination or concoction involving” B and C’s evidence although they did not state whether that matter should be considered at the point of considering s 97(1)(b) or s 101(2). On the voir dire and after B and C had given oral evidence, counsel for the applicant submitted that it was for the “prosecution to prove [that there is] no reasonable possibility of concoction or contamination”. This appears to be a reference to the test stated in Hoch v The Queen [1988] HCA 50; 165 CLR 292 (“Hoch”). Counsel submitted that the events surrounding the creation of their statements meant they had the opportunity to collude (although they denied having done so). Ultimately Counsel submitted that the Crown had not “negated … a reasonable possibility” of concoction and contamination.
Her Honour addressed this contention at length in the following passage:

“In relation to the issue of concoction, [if] it is a reasonable possibility that the evidence has been contaminated or concocted, then it should be withheld from the jury. In this case it is suggested only, in relation to the sisters [B and C], that there has been the opportunity of concoction because they are sisters and their statements were taken at the same place, same time, but of course, in different rooms. It is suggested that there is the possibility of concoction because there was a phone call between the sisters beforehand.
Both sisters gave evidence in court today and they were cross-examined at length in relation to the conversations that they had. The answers to the questions that were put to them were not exactly the same for each witness. Both witnesses were clear, however, that neither of them had discussed the evidence that the other was to give, or the allegations in general in relation to what they were going to see the police about.
In fact, it is perfectly clear that the younger sister, [C], only had one complaint to make about when she was five years of age, and the complaint that she made is the most minor of all of the complaints by all of the complainants.
The older sister makes much longer and much stronger complaints over a longer period of time, and her complaints are far more serious.
It is clear on the cross-examination that I heard on the evidence that the girls gave that they have not discussed the evidence, and if there was any opportunity to do so, they did not take that opportunity. The older sister gave a reason for that, and she made it perfectly clear that her reasons were both personal and based on what she had been told. In relation to the younger sister, her evidence of being told something in general terms by her older sister again was clear, and [it] was clear that she had not discussed this matter with the older sister. Where it was put to her she had, she took the time to consider her evidence very carefully, it is clear that she thought about what she wanted to say, it is clear that she was trying to recall a conversation, and she said quite clearly that, yes, she had discussed whether she would be a part of the court case with her sister, she said that only occurred towards the end of the conversation, after she had responded to her sister, ‘Me too’, when told about who the allegation was about.
Whilst there has perhaps been the opportunity for concoction, there is no motive for concoction, and there is absolutely no evidence of concoction; in fact there is evidence to the contrary.” [emphasis added]

In the written submissions in support of the appeal it was accepted that the “real possibility” test stated in Hoch had no application in respect of the admission of tendency evidence under the Evidence Act (see R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [95]). However it was nevertheless submitted that her Honour erred in finding that “there was no evidence of concoction, rather than considering whether or not there was a reasonable possibility of concoction”.
This contention seeks to agitate an underlying issue about the relevance, if any, of a suggestion of concoction or contamination between witnesses to the admission of tendency evidence under s 97(1)(b) and its possible rejection under s 101(2). On one view suggestions of concoction raise matters that are relevant to credibility and reliability and as such are matters solely for the jury and not the trial judge (R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228) with the result that “… the suggestion that the possibility of concoction is a factor which must be taken into account in determining whether particular evidence has significant probative value should not be accepted” (McIntosh v R [2015] NSWCCA 184 at [47] per Basten JA with whom Hidden and Wilson JJ agreed). However that approach sits uneasily with the observation of this Court in AE v The Queen [2008] NSWCCA 52 at [44] that “it was not an error to consider the possibility of joint concoction in assessing the probative value of the evidence” and that “to the extent that his Honour did so, it was an error to find that there was no possibility of joint concoction”. Until the issue of the relevance of the possibility of concoction is finally resolved, these statements may perhaps be reconciled by accepting that the possibility of concoction is a matter that may, as opposed to must, be taken into account in considering s 97(1)(b).
In relation to s 101(2) in BJS v Regina [2011] NSWCCA 239 at [24] Basten JA (with whom R.S. Hulme and Hall JJ agreed) stated that “[n]o doubt the reasonable possibility of concoction is a factor which must be taken into account in assessing the ‘prejudicial effect’ of the evidence, but a more nuanced approach is now required under s 101(2), dependent on the circumstances of the particular case (cf Ellis at [96])”.
In Jones v R [2014] NSWCCA 280 (“Jones”) at [88] to [90], Bellew J (with whom Gleeson JA and Schmidt J agreed) reviewed the authorities dealing with concoction and stated (at [90]):

“It is conceivable that there may be cases in which evidence of concoction and contamination gives rise to competing inferences [and thus be relevant to an assessment of whether the evidence has significant probative value]. It may be that in such a case, those inferences are relevant to a determination of the probative value of the evidence. However, the evidence in the present case does not give rise to such inferences. For the reasons set out below, his Honour’s conclusion that there was no evidence of concoction or contamination was one which was well open to him.” (emphasis added).

This aspect of Jones was followed in DJW v R [2015] NSWCCA 164 by R.A. Hulme J (with whom Simpson and Bellew JJ agreed). His Honour acted on the basis that he was “prepared to assume that the issue of possible concoction or contamination in the present case could give rise to a competing inference in the assessment of whether there was significant probative value” (at [44]) but held that it was open to the trial judge in that case to find that that there was not “any real possibility of concoction or contamination” (at [46]).
It is not necessary to attempt to resolve the effect of these authorities (or the further authorities referred to in that part of the judgment of Adams J that deal with this topic). The opening part of the extract in [114] appears to misstate the approach to this issue by invoking Hoch but that was only an error favourable to the applicant and it was based on the erroneous submission of his counsel. Further, the findings of the trial judge in that extract amount to an acceptance of the opportunity for concoction but otherwise constitute a finding that there is “no evidence” of concoction. In Jones, such a finding was sufficient to avoid any suggestion that a competing inference of concoction should have been considered in determining whether the proposed evidence had significant probative value. There is no authority that this Court was referred to, including AE or BJS, for the proposition that a trial judge is obliged to consider whether the mere existence of an opportunity for concoction is relevant to determining whether proposed tendency evidence satisfies s 97(1)(b) or should be excluded under s 101(2).

I would reject ground 5.

Ground 1: The issue of Doli Incapax was not taken into account

Ground 1 of the Application contends that the trial judge erred because the “issue of doli incapax was not taken into account”.
As noted the Applicant was between 11 and 13 years old at the time that the offences the subject of counts 1 to 3 were allegedly committed. It follows that a rebuttable presumption of doli incapax arises, namely that the applicant was incapable of committing the offences the subject of those counts because he lacked an understanding of the difference between right and wrong. As a consequence, in relation to those counts not only must the Crown prove beyond reasonable doubt that the applicant did the acts charged with the necessary intent, the Crown must also prove that the applicant knew that conduct was seriously wrong, as distinct from an act of mere naughtiness or mischief (BP v Regina, SW v Regina [2006] NSWCCA 172).
In submissions before the trial judge counsel for the applicant contended:

“ … it would be very unfair to [the Applicant] to have to be required to defend a matter where there’s a presumption that he couldn’t form any criminal intent and defend other charges when he’s over the age of 14 and for a jury to be directed to, in effect, disregard the other charges or other counts because they’re different, there’s different legal issues in relation to them, to separately consider whether or not at that age, in all the circumstances, he could form a – or did form a criminal intent. It would make it complex and different …”

Her Honour addressed this argument as follows:

“In relation to counts 1, 2 and 3, there may be another fact in issue, that is, whether the accused had the capacity at the time the events allegedly occurred … to understand that his actions were wrong, and seriously so. That is a matter that the Crown will have to address, and that is a hurdle that the Crown will have to leap over to the required criminal standard. That is a matter that does not bother me at this stage of the proceedings. It may bother me at the end of the Crown case …
I turn now to what is probably the final claim, and that is that when the first three counts are alleged to have occurred, the accused was perhaps 12 or under 12 years of age. The Crown would have the obligation, therefore, to prove beyond reasonable doubt that the accused had the required capacity and understanding that, if a jury find that he did the touching alleged, that he understood to the required standard that he knew the things that he was doing were wrong, and seriously so.
That is a matter that the Crown is alive to. They say that they have evidence in support of it. I am told there is no school records or anything that is generally put before the Court in relation to such issues, but they say that the evidence that they will rely on relates to the request for secrecy, the attempt at privacy and the stopping of the actions when there was perhaps an adult drawing near. Depending on how the evidence comes out, that may or may not be sufficient for the jury, but that is a matter that we will wait to see.”

Both the submission to the trial judge and her Honour’s response are difficult to grapple with. As best as I can determine the point being made to her Honour was that there was some form of unfairness in the combined trial of 20 counts where three of them had this extra element. It was contended that having an additional element for one set of counts would make the jury’s task complex. Her Honour’s response appears to have been that there was no such unfairness because the Crown’s case to rebut the presumption was solely confined to the applicant’s (alleged) conduct in relation to only counts 1 to 3, namely “his request for secrecy, the attempt at privacy and the stopping of actions when there was perhaps an adult drawing near” (see BP v Regina, SW v Regina [2006] NSWCCA 172 at [29] to [30]). Implicit in her Honour’s approach was that the Crown case (and the jury’s reasoning) would be confined in that regard by appropriate direction, if necessary. Further her Honour expressly did not address whether the direct evidence in support of counts 1 to 3 would be sufficient to rebut the presumption but instead would consider that at the “end of the Crown case”. No error is apparent in this approach.
The written submissions in support of these grounds contended that a trial of counts 1 to 3 with the remaining counts would occasion unfairness to the applicant because with those counts he would be “entitled not to give evidence in these matters and require the Crown to rebut the presumption in its case”, whereas “if all the matters are heard together he may be forced to give evidence about the matters generally”. This contention was not raised before the trial judge and thus no error arises from her Honour’s failure to address it. In any event, as noted by the Crown, the fact that the evidence relied upon to rebut the presumption is solely the evidence of the very events that give rise to counts 1 to 3 “significantly weakens the applicant's argument that tactically he would have to meet a different case on that issue compared with the rest of the case”. In particular, it is difficult to see how any decision by the applicant to give evidence in his own case is affected by the further element the Crown must prove in relation to counts 1 to 3. If the applicant chooses to give evidence denying these events he would, in doing so, deny the evidence said by the Crown to rebut the presumption.
The other matter raised in the written submissions in support of this ground is that the jury might use evidence that the applicant committed sexual offences when he was an adult (specifically, charges 16 to 20) to reason backwards that he may have had an understanding when he was under 14 that his actions were wrong. No complaint of prejudice to this effect was made to the trial judge. In my view, the risk of a jury reasoning in this manner is very slight but even so it can be addressed by an appropriate direction.
I would reject ground 1.

Conclusion

No material error in the trial judge’s judgment having been demonstrated, I would grant leave to appeal but dismiss the appeal.
The orders that I propose are that leave to appeal be granted but the appeal be dismissed.

**********

Decision last updated: 22 December 2015

Medium Neutral Citation:	BC v R [2015] NSWCCA 327
Hearing dates:	12 August 2015
Decision date:	18 December 2015
Before:	Simpson JA at [1]; Adams J at [2]; Beech-Jones J at [72].
Decision:	1. Leave to appeal granted. 2. Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal – application under s 5F of the Criminal Appeal Act 1912 (NSW) – separate trials – admission of tendency evidence – offences committed between ages 11 and 28 years old – whether evidence of charges admissible as tendency evidence – whether charges should be tried separately CRIMINAL LAW – appeal – application under s 5F of the Criminal Appeal Act 1912 (NSW) – tendency evidence – complainants are sisters – possibility of concoction – relevance of concoction in assessing probative value under s 101(2) of the Evidence Act 1995 (NSW) – whether probative value of evidence outweighed by prejudicial effect
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 5F Criminal Procedure Act 1986 (NSW), s 306B Evidence Act 1995 (NSW), ss 55, 97, 101, 135
Cases Cited:	AE v R [2008] NSWCCA 52 B v R [1992] HCA 68; 175 CLR 599; 63 A Crim R 225 BJS v R (No 1) [2011] NSWCCA 239 BJS v R (No 2) [2013] NSWCCA 123 BP v R; R v BP [2010] NSWCCA 303 DAO v R [2011] NSWCCA 63; 278 ALR 765 DJW v R [2015] NSWCCA 164 DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758; 215 A Crim R 349 DSJ v R; NS v R [2014] NSWCCA 77 Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206 FB v R; R v FB [2011] NSWCCA 217 Festa v R [2001] HCA 72; 208 CLR 593; 185 ALR 394 Harris v Director of Public Prosecutions [1952] AC 694 Markby v R (1978) 140 CLR 108 Hoch v The Queen [1988] HCA 50; 165 CLR 292 House v R [1936] HCA 40; 55 CLR 499 JG v R [2014] NSWCCA 138 Jones v R [2014] NSWCCA 280 Leonard v The Queen [2006] NSWCCA 267; 164 A Crim R 374 McIntosh v R [2015] NSWCCA 184 Pfennig v R (1995) 182 CLR 461 at 482-3; 77 A Crim R 149 R v Dupas (No 3) [2009] VSCA 202; 26 VR 380 R v Ellis [2003] NSWCCA 319; 58 NSWLR 700; 144 A Crim R 1 R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75 R v RN [2005] NSWCCA 413 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 R v SK; SK v R [2011] NSWCCA 292 R v XY [2013] NSWCCA 121; 84 NSWLR 363 Sokolowskyj v R [2014] NSWCCA 55
Texts Cited:	Professor J Hunter, “Jurors’ Notions of Justice, An Empirical Study of Motivations to Investigate & Obedience to Judicial Directions”, September 2013, UNSW Law School M Bagaric, “The community interest in bringing suspects to trial trumps the right to an impartial decision maker – at least in Victoria”, (2010) 34(1) Criminal Law Journal 5
Category:	Principal judgment
Parties:	BC (Applicant) Regina (Respondent)
Representation:	Counsel: J Stratton SC (Applicant) N Adams SC/ H Roberts (Respondent) Solicitors: Laith Lawyers (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2014/19938; 2014/199400; 2014/175052
Publication restriction:	Non-publication of any information or material that may lead to the identification of the offender and victim (s 15A Children (Criminal Proceedings) Act 1987 (NSW))
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 9 June 2015 Before: Syme DCJ File Number(s): 2014/19938; 2014/19940; 2014/175052