Director of Public Prosecutions v Westhorp
[2024] ACTSC 152
•14 March 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Westhorp |
Citation: | [2024] ACTSC 152 |
Hearing Date: | 2 February 2024 |
Decision Date: | 14 March 2024 |
Reasons Date: | 17 May 2024 |
Before: | Taylor J |
Decision: | See [82]. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Tendency Evidence – Pre-trial application – section 97A Evidence Act 2011 (ACT) – presumption that evidence has significant probative value – charged and uncharged conduct |
Legislation Cited: | Crimes Act 1900 (ACT), s 92K(2) Evidence Act 2011 (ACT), ss 55(1), 97, 97A, 101, 137, 192A Legislation Act 2001 (ACT), Dictionary Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT) |
Cases Cited: | Bradley v The Queen (1989) 41 A Crim R 297 DPP v Mastalerz [2024] ACTSC 30 Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233 Hughes v The Queen [2017] HCA 20; 263 CLR 338 IMM v The Queen [2016] HCA 14; 257 CLR 300 MM v The Queen [2012] ACTCA 44; 232 A Crim R 303 R v AN [2000] NSWCCA 372; 117 A Crim R 176 R v ATM [2000] NSWCCA 475 R v BC (No 3) [2020] ACTCA 49 R v Ford (2009) 201 A Crim R 451 R v McNamara [2002] NSWCCA 248; 131 A Crim R 140 R v Thompson [2014] ACTSC 276 TL v The King [2022] HCA 35; 275 CLR 83 Vojneski v the Queen [2016] ACTCA 57; 262 A Crim R 370 |
Parties: | Director of Public Prosecutions Mark Gordon Westhorp ( Accused) |
Representation: | Counsel D Swan ( DPP) S Howell ( Accused) |
| Solicitors ACT Director of Public Prosecutions Hugo Law ( Accused) | |
File Numbers: | SCC 121 of 2023 SCC 122 of 2023 |
Publication Restriction: | Not to be published until the conclusion of the trial. |
TAYLOR J:
Introduction
1․The prosecution seeks an advance ruling under s 192A of the Evidence Act 2011 (ACT) (the Evidence Act) on the admissibility of tendency evidence, pursuant to s 97 of the Evidence Act.
2․By way of indictment dated 5 July 2023, the accused has been charged with the following offences:
(a)Count 1 (CC023/1351): Act of indecency on a young person, contrary to s 92K(2) of the Crimes Act 1900 (ACT) (the Crimes Act), with a maximum term of imprisonment of 12 years (Ms A);
(b)Count 2 (CC2023/1359): Act of indecency on a young person, contrary to s 92K(2) of the Crimes Act, with a maximum term of imprisonment of 12 years (Ms A);
(c)Count 3 (CC2023/1360): Act of indecency on a young person, contrary to s 92K(2) of the Crimes Act, with a maximum term of imprisonment of 12 years (Ms A);
(d)Count 4 (SCC2023/120): Act of indecency on a young person, contrary to s 92K(2) of the Crimes Act, with a maximum term of imprisonment of 12 years (Ms A)
(e)Count 5 (CC2023/1368): Act of indecency on a young person, contrary to s 92K(2) of the Crimes Act, with a maximum term of imprisonment of 12 years (Ms A);
(f)Count 6 (CC2023/1374): Act of indecency on a young person, contrary to s 92K(2) of the Crimes Act, with a maximum term of imprisonment of 12 years (Ms A);
(g)Count 7 (CC2022/7790): Act of indecency on a young person, contrary to s 92K(2) of the Crimes Act, with a maximum term of imprisonment of 12 years (Ms B); and
(h)Count 8 (SCCAN2023/121): Act of indecency on a young person, contrary to s 92K(2) of the Crimes Act, with a maximum term of imprisonment of 12 years (Ms C).
3․On 21 December 2023, the prosecution filed an application to adduce tendency evidence under Part 3.6 of the Evidence Act, relying on a Tendency Notice filed 21 December 2023. The prosecution seeks leave to adduce evidence to demonstrate the following tendencies:
(a)Tendency 1: to have a sexual interest in adolescent females.
(b)Tendency 2: to have a predominant sexual interest in breasts.
(c)Tendency 3: to seek to expose adolescent females to sexualised material or content, including bondage, discipline, sadism and masochism (BDSM) equipment and practices in furtherance of committing sexual acts.
(d)Tendency 4: to act upon his sexual interest in adolescent females.
(e)Tendency 5: to opportunistically commit sexual acts or engage in sexualised behaviour with adolescent or teenage females when they are socialising or residing at his residence.
(f)Tendency 6: to proposition or provide adolescent or teenage girls, while they are socialising or residing at his residence, with money to engage in sexualised behaviour either with or for him.
(g)Tendency 7: to expose adolescent females to sexualised material or content, including BDSM equipment or practices.
4․The application to adduce tendency evidence was before me on 2 February 2024. On 14 March 2024, I made the orders at [82] of these reasons. I indicated to the parties that the reasons would be published at a later date.
Evidence sought to be adduced by the prosecution
5․The prosecution relies on each count on the indictment, in addition to a further nine separate uncharged acts, as tendency evidence.
6․In the alternative, the prosecution submits that the evidence of these incidents is admissible as relationship or context evidence.
7․All incidents are alleged to have occurred at 50 Alston Street, Chisholm, ACT, this being the residence of the accused at the time the incidents occurred. All incidents concern witnesses and/or complainants who were under the age of 18, with the exception of incident 13. The application is made on the basis that each charged act is cross-admissible and that the uncharged conduct is relevant to the proof of each charged act.
Incident Number
Relevant Tendency
Summary of Acts
1
1, 3, 4, 5, 7
Uncharged act: Exposure of Ms A to graphic pornography
On an occasion when Ms A attended the accused’s address in the company of his daughter, they encountered the accused sitting at a computer console. The accused was watching graphic pornography of a woman inserting a wine bottle into her vagina whilst audibly moaning. The accused paused the video, leaving the paused image open and in full view of Ms A, as he spoke to her and his daughter. After Ms A and the accused’s daughter proceeded to the accused’s daughter’s bedroom, Ms A was able to hear the audio from the video recommence playing. Ms A was approximately 13 years of age. The conduct occurred between 31 December 2000 and 1 January 2002.
2
1, 2, 3, 4, 5, 6, 7
Counts 1 and 2: Introducing Ms A to the BDSM photo album and bondage equipment, committing acts of indecency
On an evening when Ms A was present at the accused’s residence, she was socialising and drinking with other girls present and the accused. During the evening, at a time when the accused was alone with Ms A, the accused produced an album containing photographs of men and women wearing bondage equipment which had been fashioned by the accused. After showing Ms A the photographs, the accused suggested that she accompany him to the shed of the property to try on some of the items he had made. Once inside, the accused directed Ms A to undress so that her breasts were exposed. The accused made comments about Ms A’s breasts and nipples as he fitted a bra onto her. The accused proceeded to touch and suck on her breasts before he wrapped roped around Ms A’s breasts. He then proceeded to place nipple clamps on her exposed nipples. Despite Ms A’s protestations that the equipment was causing her pain, the accused told her that it “looked really good” and to “give it a minute”. The accused then assisted with the removal of the equipment from her breasts. The accused continued to touch Ms A’s breasts and kissed her breasts and neck. The accused held her from behind and thrusted his erect penis into her back. She felt the accused “shudder” before he let her go and said that she could get dressed. The accused provided Ms A with $20 for “modelling”. Ms A was approximately 13 years of age. The conduct occurred between 31 December 2000 and 1 January 2002.
3
1, 3, 4, 5, 7
Uncharged act: ‘Preaching to the Perverted’ viewing
On an occasion when Ms A attended the accused’s address, the accused played the film ‘Preaching to the Perverted’ to her and several others. The film contained BDSM-themed content, nudity and adult themes. Ms A was approximately 13 years of age. The conduct occurred between 31 December 2000 and 1 January 2002.
4
1, 2, 4, 5, 6
Count 3: The accused pays Ms A $50 for further ‘modelling’
On an occasion when Ms A was present at the accused’s address, the accused indicated that she should accompany him to the shed so he could show her some “stuff” he had made. Once inside the accused touched Ms A on her breasts and produced $50 and told her that it was hers. Ms A removed her shirt and the accused removed her bra. The accused licked and sucked on Ms A’s breasts and made comments about the taste of her nipples whilst making “grunty” noises. The incident lasted between 5-10 minutes before the accused stopped and Ms A redressed. Ms A was approximately 13 years of age. The conduct occurred between 31 December 2000 and 1 January 2002.
5
1, 2, 4, 5, 6
Count 4: Multiple instances of the accused touching Ms A’s breasts and ongoing payment for ‘modelling’
On another three occasions, Ms A was present at the accused’s address. On each occasion, the accused motioned for her to attend the shed. Ms A attended and undressed, exposing her breasts, before the accused touched, kissed and sucked on her breasts. On each of these occasions, the accused would place money on the workbench, which Ms A would collect at the end of the incident. During one of these incidents, the accused ran a metal whip down the exposed skin of her neck. Ms A was approximately 13 years of age. The conduct occurred between 31 December 2000 and 1 January 2002.
6
1, 2, 4, 5, 6
Counts 5 and 6: Final forceful incident with Ms A and the payment of $70
Ms A attended the accused’s address on a further occasion. She attended after her and the accused’s daughter had advised the accused that they would be attending the cinema, when in fact they had been socialising with others. The accused confronted the girls upon their arrival at the residence and told his daughter to go to her room. The accused then motioned for Ms A to go to the back shed, saying, “now”. Once inside the shed, the accused roughly grabbed at Ms A as she began to remove her top and bra, pulling them from her body. The accused squeezed her breasts with force and pushed his hand down onto her groin before bringing his hand back up again. The accused pulled Ms A into him from behind before she felt him “convulsing”. The accused then let her go before providing her with $70 and a cigarette, telling her “not to do it again”. Ms A was approximately 13 years of age. The conduct occurred between 31 December 2000 and 1 January 2002.
7
1, 3, 4, 5, 6, 7
Uncharged act: The accused discusses the selling of her virginity with Ms A
On occasions when Ms A was present at social gatherings at the accused’s address, the accused raised the prospect of the girls “selling their virginity”. The above discussions occurred on multiple occasions over several months. Ms A was approximately 13 years of age. The conduct occurred between 31 December 2000 and 1 January 2002.
8
1, 3, 4, 5, 6, 7
Uncharged act: The accused discusses the selling of her virginity with Ms B and Ms C
The accused, on multiple occasions over a period of months, discussed with Ms B that she could sell her virginity and that they could make significant amounts of money from doing so. The accused also discussed detailed aspects of this arrangement with her, including the potential identification of a prospective “buyer” and that he would take some payment for making the arrangements. Ms B recalls an approximate figure of $12,000 being raised by the accused, of which an unidentified amount would be kept by the accused. The above discussions occurred on multiple occasions over several months. Ms B was approximately 13 to 15 years of age and Ms C was approximately 14 to 16 years of age. The conduct occurred between 31 December 2001 and 31 December 2003.
9
1, 3, 4, 5, 7
Uncharged act: The accused discusses sexual BDSM equipment and sexual practices
The accused discussed sexual practices and BDSM equipment with adolescent girls whilst they socialised at his address on multiple occasions. This included references to a dominatrix sex worker who would electrocute a male client by placing alligator clips on his testicles. The accused also discussed the male client’s preference for acting like a baby and being placed in a nappy. Ms A, B and C were all under the age of 18. The conduct occurred between 31 December 2000 and 1 January 2005.
10
1, 3, 4, 5, 7
Uncharged act: Showing Ms B the BDSM photo album
On an occasion when Ms B was present at the accused’s residence, he produced a photo album containing photographs of women wearing BDSM equipment he had made, with breasts and genitals exposed in some photographs. Ms B recalls that this occurred in the accused’s lounge room and that the accused’s daughter was present at the time. Ms B was approximately 13 to 15 years of age. The conduct occurred between 6 April 2001 and 5 April 2004.
11
1, 2, 3, 4, 5, 7
Count 7: Showing Ms B BDSM equipment, having her undress and touching her breasts
On an occasion when Ms B was at the accused’s address, he took her to the shed where he then showed her pieces of BDSM equipment he had made and suggested he might make similar equipment for her. The accused asked her to remove her top and bra. Once her top was removed, the accused grabbed and touched Ms B’s breasts for several minutes whilst making heavy breathing sounds. Once the accused ceased feeling her breasts, Ms B dressed and left the shed. Ms B was approximately 12 to 15 years of age. The conduct occurred between 31 December 2001 and 1 January 2004.12
1, 2, 3, 4, 5, 7
Count 8: Showing Ms C BDSM equipment, having her undress and dragging chains across her breasts
On an occasion when Ms C was at the accused’s address, he offered to show her various pieces of BDSM equipment he had made. The accused took Ms C, along with Ms B and his daughter, to the back shed. Once inside, the accused encouraged Ms C to remove her clothing so that her breasts were exposed, explaining that the experience would be “better” if she were naked. The accused told her to close her eyes before taking a collar with chains, dragging the chains across her exposed breasts and placing the collar upon her. Ms C was approximately 14 to 15 years of age. The conduct occurred between 31 December 2001 and 3 October 2003.
13
2, 5, 6
Uncharged act: Offering Ms C $50 to see her breasts
Ms C rented a room at the accused’s residence for a period of approximately 6 months. On one occasion during this period, the accused offered to pay Ms C $50 for her to show him her breasts. When Ms C declined, the accused said words to the effect that he was surprised she “wasn’t already a prostitute”. Ms C was approximately 18 years of age. The conduct occurred between 4 October 2005 and 3 October 2006.
14
1, 3, 4, 5, 7
Uncharged act: Showing Ms D the BDSM photo album
Ms D moved into the accused’s residence in approximately 2005. During the first period in which she lived with the accused, the accused produced a photo album containing photographs of women wearing bondage outfits he had made. They were alone in the lounge room of the accused’s residence when this occurred. Ms D was approximately 16 years of age. The conduct occurred between 8 May 2005 and 7 May 2006.
15
1, 2, 3, 4, 5, 7
Uncharged act: Showing Ms D BDSM equipment, having her undress and placing nipple weights on her
During the first period that Ms D lived with the accused, he showed her various pieces of BDSM equipment he had made. The accused showed her nipple weights and encouraged her to remove her top and her bra, which she did. Ms D believes she told the accused the weight was too heavy and was uncomfortable. The accused stated that he was “trying to get [her] out of [her] comfort zone” and encouraged her to “push through”. Ms D was approximately 16 years of age. The conduct occurred between 8 May 2005 and 7 May 2006.
16
1, 2, 4, 5
Uncharged act: Having Ms D pose topless and filming her
During the second period that Ms D lived with the accused, there was one evening that they were drinking homemade alcoholic ginger beer provided by the accused. The accused encouraged Ms D to remove her top so that her breasts were exposed. The accused produced a home video camera and encouraged Ms D to pose on the bed in her bedroom whilst topless, making “provocative” poses as the accused was directing, saying things such as “a bit more” as she continued to pose. Ms D was approximately 17 years of age. The conduct occurred between 8 May 2006 and 7 May 2007.
17
1, 2, 4, 5, 6
Uncharged act: Offering Ms D free rent (set at $50 per week) in exchange for the accused being able to touch her breasts freely
Ms D paid the accused $50 per week during the second period that she lived with the accused. Following Incident 16, the accused proposed that she could live with him rent free on the proviso that he be allowed to touch her. Ms D agreed. On multiple occasions that followed, the accused touched Ms D on her breasts or shoulders. She would let him touch her on these occasions. The accused never touched her below the waist. The conduct occurred until approximately mid-2007 when Ms D moved out of the residence. Ms D was approximately 17 years of age. The conduct occurred between 8 May 2006 and 7 May 2007.
8․The accused concedes that incidents 2, 4, 5, 6, 11, 12, 13, 15, 16 and 17 (which includes all charged acts) are admissible as tendency evidence under ss 97A(2) and 101 of the Evidence Act. The accused concedes that these incidents support proof of the accused’s tendency to have a sexual interest in children and to act on that interest (tendencies 1 and 4); and proof of such a tendency strongly supports proof of the facts making up the offences charged: Hughes v The Queen [2017] HCA 20; 263 CLR 338 (Hughes) at 356 [41].
9․The accused objects to the admission of evidence about incidents 1, 3, 7, 8, 9, 10 and 14. It is submitted that these incidents do not have significant probative value. The accused submits that tendencies 2, 3, 5, 6 and 7 as particularised do not fall within the scope of the s 97A presumption. Further, the accused submits that the incidents said to support the tendencies are not significantly probative of any such tendency (however particularised) and that, even if they are, such a tendency does not strongly support proof of the facts making up the offences charged.
10․The accused identified several factors, to which I will turn, said to demonstrate unfair prejudice if the prosecution is permitted to extend its tendency case to the nominated incidents.
11․The accused does not oppose evidence about incidents 1, 3 and 10 being adduced by the prosecution as context or relationship evidence. Accordingly, the accused objects to incidents 7, 8, 9 and 14 being led at all by the prosecution.
Background
The prosecution case
12․The accused is charged with eight counts of an act of indecency on a person under the age of 16 years. The offences are alleged to have occurred between 2001 – 2003. There are three complainants, all young girls who were friends with the daughter of the accused at the time the offending is said to have occurred.
13․The three complainants would regularly sleep over at the accused’s residence due to their friendship with his daughter. A number of others in their friendship group, [redacted] and, on occasion, Ms D would also regularly attend the sleepovers.
14․During the sleepovers the accused would permit the girls to ‘party’, which included permitting them to drink alcohol and smoke marijuana. The accused is said to have often supplied the girls with alcohol, poured alcoholic drinks for the girls and been present while they consumed alcohol.
15․In particular, the three complainants spent a significant amount of time at the accused’s residence, arising from their friendship with the accused’s daughter.
16․At least during the time encompassed by the counts on the indictment, the accused had an interest in leathermaking. In the backyard of the single story 3-bedroom residence he occupied, there was a shed which contained materials and equipment for leathermaking.
17․The acts relied upon in support of all eight counts alleging an act of indecency are carefully particularised in the table above, identified as incidents 2, 4, 5, 6 and 12.
18․The accused was present when a search warrant was conducted on his home on 19 October 2021. Under caution, he said the following things:
(a)He did not have sex with “any of these girls”;
(b)Ms B and C had lived with him at different stages when they couldn’t live with their parents;
(c)They sometimes drank alcohol at his house;
(d)Ms D had showed him a video of herself receiving oral sex from her boyfriend;
(e)He did not touch Ms D’s breasts or make a video with her;
(f)He had a photo album of women in bondagewear, intended to be a catalogue of items;
(g)He used to try to make bondage equipment that he could sell, and to make it into a business, but it never eventuated. He had males and females pose for photographs for him in the bondage items and he showed the photo album to police;
(h)He did not have any recollection of making bondage items with Ms B, Ms D or Ms C, but it was possible Ms D had made the “mace” item at the house, but it had nothing to do with bondage;
(i)That it was possible that Ms D had taken some of the items once he had stopped making the bondage equipment and gave it all away, but that she would have been over the age of 18 at the time;
(j)That he had shown the girls a dress he had made, and that the accused’s daughter had worn the dress to school one day with clothing on underneath it;
(k)That he had no recollection of placing a leather collar around Ms C’s neck when she was around 15 years old, while she was bare-chested, and said “I don’t think that happened, I don’t know”, but he had seen her bare-chested once when she was sunbathing with his daughter;
(l)He did not touch Ms B’s breasts for approximately 15 minutes in the shed, saying “no, didn’t happen. No”, but that he might have had her in the shed by herself because he spent a lot of time in the shed;
(m)That it was possible he had suggested to the girls that they should make BDSM items for extra pocket money, but he did not remember; and
(n)That while he did not speak to Ms B about selling her virginity, he could not recall if he ever spoke to the girls about whether they were virgins; but if he had spoken to them about it, the conversation would have been instigated by them.
Legislation
Tendency evidence
19․The application is brought pursuant to s 97 of the Evidence Act. That section provides:
97The tendency rule
(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
(2) Subsection (1) (a) does not apply if—
(a) the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or
(b) the evidence is presented to explain or contradict tendency evidence presented by another party.
Note The tendency rule is subject to specific exceptions about the character of and expert opinion about accused people (s 110 and s 111). Other provisions of this Act, or of other laws, may operate as further exceptions.
20․In this instance, the complainants and tendency witness were, with the exception of Ms C in incident 13, children being under the age of 18 years (as defined in the Dictionary in the Legislation Act 2001 (ACT)) at the time of the incidents. Accordingly, s 97A of the Evidence Act applies to those incidents involving children as defined, which creates a presumption in relation to “significant probative value”:
97AAdmissibility of tendency evidence in proceedings involving child sexual offences
…
(2)It is presumed that the following tendency evidence about the defendant will have significant probative value for section 97 (1) (b) and section 101 (2):
(a)tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest);
(b)tendency evidence about the defendant acting on a sexual interest the defendant has or had in children.
(3)Subsection (2) applies whether or not the sexual interest or act to which the tendency evidence relates was directed at a complainant in the proceeding, or any other child or children generally.
(4)Despite subsection (2), the court may determine that the tendency evidence does not have significant probative value if it is satisfied that there are sufficient grounds to do so.
(5)The following matters (whether considered individually or in combination) are not to be taken into account when determining whether there are sufficient grounds for subsection (4) unless the court considers there are exceptional circumstances in relation to those matters (whether considered individually or in combination) to warrant taking them into account:
(a)the sexual interest or act to which the tendency evidence relates (the tendency sexual interest or act) is different from the sexual interest or act alleged in the proceeding (the alleged sexual interest or act);
(b)the circumstances in which the tendency sexual interest or act occurred are different from circumstances in which the alleged sexual interest or act occurred;
(c)the personal characteristics of the subject of the tendency sexual interest or act (for example, the subject’s age, sex or gender) are different to those of the subject of the alleged sexual interest or act;
(d)the relationship between the defendant and the subject of the tendency sexual interest or act is different from the relationship between the defendant and the subject of the alleged sexual interest or act;
(e)the period of time between the occurrence of the tendency sexual interest or act and the occurrence of the alleged sexual interest or act;
(f)the tendency sexual interest or act and alleged sexual interest or act do not share distinctive or unusual features;
(g)the level of generality of the tendency to which the tendency evidence relates.
21․In criminal proceedings, s 101 of the Evidence Act also applies:
101Further restrictions on tendency evidence and coincidence evidence presented by prosecution
…
(2)Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.
22․Even where context evidence is admissible, it may still be excluded under s 137 of the Evidence Act:
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
Principles
23․It is useful to set out the relevant principles that guide the approach to be taken to the admissibility of tendency evidence and context or relationship evidence.
Tendency evidence
Tendency reasoning
24․In Vojneski v the Queen [2016] ACTCA 57; 262 A Crim R 370, Murrell CJ and Refshauge J observed (at 382 [47]):
In criminal proceedings, tendency evidence is often called to show that, at the time of the alleged offence, the accused tended to think or act in a particular way that makes it more likely that he or she committed the offence because the behavioural or mental tendency of the accused conformed to the offending behaviour. Or, to put it another way, evidence may support an inference that the accused tended to behave or think in a particular way which makes it more likely that the accused did so at the time of the offence: R v Cittadini (2008) 189 A Crim R 489 at [22]-[23] and Elomar v The Queen (2014) 300 FLR 323 at [359]. In IMM v The Queen (2016) 257 300 at [204] Gageler J said.
The evidence is adduced in order to provide a foundation for an inference that the accused has or had a tendency to act in that way or to have a particular state of mind, the existence of which tendency makes it more probable that the accused acted in a particular way or had a particular state of mind at the time or in the circumstances of the alleged offence. Tendency evidence is thus evidence of the relevance of which lies in its capacity indirectly to affect the assessment of the probability of the existence of a fact in issue of the accused’s actual state of mind at the time when the circumstances of the alleged offence.
25․In Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233 Simpson J considered the relevance of tendency evidence and summarised it as follows at 260 [124]:
Underlying s 97 is an unstated but obvious premise. That is that proving that a person has a tendency to act in a particular way or to have a particular state of mind in some way bears upon the probability of the existence of a fact in issue. The fact in issue is the conduct, or state of mind, on a particular occasion relevant to the issues in the proceedings, of the person whose tendency is the subject of the evidence tendered. That is, evidence that a person has or had a tendency to act in a particular way or to have a particular state of mind is not tendered in a vacuum. It is tendered for the purpose of further proving (or contributing to proving) that, on a particular occasion, that person acted in that way or had that state of mind. Proof of the tendency is no more than a step on the way to proving (usually by inference) that the person acted in that way, or had that state of mind, on the relevant occasion.
26․The admission of tendency evidence gives effect to tendency reasoning. Where it can be established that on one or more occasions a person acted in a particular way or had a particular state of mind, the trier of fact can be satisfied that a person has, or had, a tendency to commit those acts or have that state of mind. Once satisfied that the tendency exists, the trier of fact can use the tendency when determining whether the person acted in that way or had that state of mind.
27․As the prosecution highlight, the law in relation to the admissibility of tendency evidence has developed, particularly in light of the Royal Commission into Institutional Responses to Child Sexual Abuse, to facilitate a wider scope for the admission of this category of evidence.
28․That said, there are constraints on the scope of admissibility imposed by the operation of the provisions extracted above which govern the circumstances in which tendency evidence can be adduced. Namely, that the evidence said to demonstrate the tendency has “significant probative value” (s 97) and that the probative value of the evidence said to demonstrate the tendency, outweighs its prejudicial effect.
The probative value of tendency evidence
29․The threshold of significant probative value was considered in IMM v The Queen [2016] HCA 14; 257 CLR 300 (IMM), where it was observed at 314 [46]:
…The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of the fact-finding.
30․An assessment of the probative value of the evidence requires the Court to take the evidence “at its highest” and assume that the evidence will be accepted by the tribunal of fact: TL v The King [2022] HCA 35; 275 CLR 83 at 95 [28]; IMM at 312 [39] and 315 [52]. Further, considerations of credibility or reliability are not taken into account for the purposes of deciding the admissibility of tendency evidence, other than in exceptional cases, for example where the evidence is “incredible, fanciful or preposterous”: IMM at 312 [39]. The terms of s 97 of the Evidence Act direct the Court to consider the probative value of the evidence in light of the “other evidence presented or to be presented”. The strength of the tendency evidence sought to be adduced is not assessed in isolation. The entirety of the evidence must be considered when determining the probative value of a particular piece of tendency evidence.
31․In Hughes at 356-357 [41], the High Court explained that an assessment of whether tendency evidence has significant probative value “involves consideration of two interrelated but separate matters”:
… The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence … In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
32․The two questions to be asked then are:
(i)Does the evidence by itself or together with other evidence strongly support proof of a tendency?; and
(ii)Does the tendency strongly support the proof of fact that makes up the offence charged?
33․Helpfully, in DPP v Mastalerz [2024] ACTSC 30, Baker J identified a number of factors which may be relevant to the assessment of the probative value of tendency evidence in a criminal trial at [36]:
(a)The number of incidents establishing the tendency: Hughes at 371 [91];
(b)The temporal distance between the tendency incidents and the alleged acts: McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 at [30] – [32]; TL v The King [2022] HCA 35; 275 CLR 83 at 98 [37] (see further at [39] below);
(c)Any similarity in conduct and circumstances between the tendency incidents and the alleged acts, and among the tendency incidents: TL at 95 [29] (see further at [37] below);
(d)Whether the tendency alleged is unusual: Hughes at 393 [155];
(e)The specificity (or generality) of the tendency alleged: TL at 95 [29]; Hughes at 363 [64] (see further at [38] below);
(f)Whether tendency evidence involves a single complainant, or more than one complainant: The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 at 82 [48], 83 [50] and 88 [60] (see further at [38] below);
(g)The nature of the tendency alleged (including whether “logic and human experience” suggest that the tendency is such as to be probative of the facts in issue: Hughes at 356 [40]);
(h)The extent to which the tendency as particularised will assist in determining the fact(s) in issue: TL at 95 [29];
(i)The issue that the tendency evidence is sought to establish (for example, whether the tendency is adduced to support a witness’ credibility or to establish identity; whether the evidence is adduced to explain or contradict tendency evidence adduced by another party; and/or whether the tendency evidence is adduced to demonstrate a critical fact in the prosecution case): Hughes at 355 [39], but see TL at 96 [30] – [31]); and
(j)The other evidence to be presented: s 97(1)(b) of the Evidence Act.
34․Similarity in conduct or circumstances need not be striking for the evidence to have the character of significantly probative. Of course, similarity between the charged acts and the tendency evidence may well enhance the probative value of the evidence, but it is not necessary for it to be considered significantly probative and therefore admissible: Hughes at 366 [39].
Assessment of the prejudicial effect of tendency evidence
35․Notwithstanding the presumption contained in s 97A, tendency evidence is prohibited if the prejudicial effect to the accused of using such evidence outweighs the probative value of the evidence: s 101(2) Evidence Act. There is no longer a requirement for the probative value to “substantially” outweigh the danger of unfair prejudice after the Royal Commission recommendations in relation to its removal were enacted in the ACT in 2020: see Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT).
36․It is important to bear in mind that prejudice that is unfair refers to the danger that a jury might make improper use of the evidence: R v BC (No 3) [2020] ACTCA 49 (BC (No 3)) at [32]. This is distinct from evidence that might make it more likely that the accused would be found guilty of the charged acts. The unfair prejudice contemplated by s 101 includes the evidence being given more weight than it deserves; the jury being diverted from its task; the jury applying an illegitimate form of reasoning in evaluating the evidence; or use of the evidence that is illogical or irrational: BC (No 3) at [40].
37․When contemplating the balancing task under s 101(2) the Court must consider the actions available to mitigate the risk of unfair prejudice including directions that may be given: R v Thompson [2014] ACTSC 276; BC (No 3) at [37]. The Court must also identify the kinds of prejudicial effect the evidence for which admission is sought may give rise: R v Ford (2009) 201 A Crim R 451 at [64].
Context or relationship evidence
Assessment of the probative value of context evidence
38․Evidence determined to be inadmissible for tendency purposes may nonetheless be admitted if it is relevant as context or relationship evidence. Such evidence must be relevant to the issues before the jury: R v ATM [2000] NSWCCA 475 at [72]. The prosecution submits that evidence of the uncharged acts (incidents 1, 3, 7, 8, 9, 10, 13, 14, 15, 16 and 17) is admissible as context or relationship evidence.
39․Proper use of this evidence is not a pathway for the application of tendency reasoning. Rather, context evidence is evidence that may provide an explanation for the actions of a complainant or complainants in response to, or arising from, the alleged conduct. Evidence of this kind might also provide the tribunal of fact with a picture of the broader circumstances within which the accused’s state of mind are assessed.
40․The admission of context or relationship evidence is concerned with ensuring the tribunal of fact is not called upon to decide the facts in issue in a vacuum, but rather has access to all the evidence that might assist in their determination, including that evidence which might explain what might otherwise be inexplicable. As Jagot J (as her Honour then was) observed in MM v The Queen [2012] ACTCA 44; 232 A Crim R 303 at 330-331 [103]:
It is not difficult to understand that in some cases evidence of the relationship between the accused and the complainant may satisfy the test of relevance and thus be admissible for a non-tendency purpose. Such evidence has been admitted in many cases where, on the particular facts, the relationship evidence explains what might otherwise be inexplicable, implausible, merely surprising or, indeed, might otherwise raise any question in the minds of the jury about the conduct of the accused and/or the complainant. Ultimately, the test is as articulated in s 55(1) of the Evidence Act, namely, whether the evidence could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. In a case such as the present evidence of the relationship may, for example, simply make the complainant’s version of events “more capable of belief” than would be the case without the evidence (WFS v The Queen at [87]). This too would suffice to make the evidence relevant and, subject to exclusion under s 137 or otherwise, admissible. In other words, the explanatory capacity of the relationship evidence need not reach any threshold other than the capacity to rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue. In the present case it is a given that this capacity must not result from tendency reasoning. It must result from some rational connection between the circumstances of the offence charged and the circumstances of the relationship about which the evidence is sought to be adduced.
41․Care may be required to constrain the extent of the evidence said to provide context to that which enables the jury to set the allegations in their proper perspective, which may involve limiting the “full story” in an effort to balance evidence relevant to a charged act and relationship evidence: R v AN [2000] NSWCCA 372; 117 A Crim R 176 (per Kirby) at 183-184 [48] citing Bradley v The Queen (1989) 41 A Crim R 297 at 302, endorsed in R v McNamara [2002] NSWCCA 248; 131 A Crim R 140.
42․Section 137 applies to context or relationship evidence presented by the prosecutor in a criminal trial. The Court must refuse to admit such evidence if “its probative value is outweighed by the danger of unfair prejudice to the defendant”. The considerations outlined above at [35]-[37] in relation to “unfair prejudice” under s 101 of the Evidence Act are equally applicable to s 137.
Determination
Tendency evidence
43․All of the incidents upon which the prosecution seek to rely, except incident 13, involve an individual, either complainant in a charged act or witness, under the age of 18 years of age. The terms of s 97A make plain that it is presumed that tendency evidence about the accused having a sexual interest in children and/or acting on a sexual interest in children will have significant probative value for the purposes of ss 97(1)(b) and 101(2). Section 97A applies to criminal proceedings where an act that constitutes, or may constitute, a child sexual offence is a fact in issue.
44․The accused contends that incidents 1, 3, 7, 8, 9, 10 and 14 do not come within the ambit of s 97A on the basis that they do not reveal tendency evidence that demonstrates the accused has or had a sexual interest in children or acted on a sexual interest in children.
45․I turn now to each of the asserted tendencies.
Tendency 1 and Tendency 4: to have a sexual interest in adolescent females and to act upon his sexual interest in adolescent females
46․The accused conceded that with respect to incidents 2, 4, 5, 6, 11, 12, 13, 15, 16 and 17, both tendencies have significant probative value. The accused did not seek to displace the s 97A presumption. Further, it was conceded that the probative value of this tendency evidence outweighs the danger of unfair prejudice to the accused: s 101 Evidence Act.
47․The prosecution seeks to include incidents 1, 3, 7, 8, 9, 10 and 14 as evidence in support of the two asserted tendencies. The prosecution accepted the presumption at s 97A and do not seek to rely on incident 13 as proof of tendencies 1 and 4, given the witness was over the age of 18 when the incident is said to have occurred.
48․In my view, the concessions by the accused are properly made. I am satisfied that the incidents particularised above at [46]: (i) strongly support the proof of tendencies 1 and 4; and (ii) that the tendencies strongly support proof of a fact that makes up the charged offences.
49․Having already determined that tendencies 1 and 4 strongly support proof of a fact that makes up the offence charged, I am satisfied that incidents 7, 8, 9, 10 and 14 strongly support the proof of tendencies 1 and 4 and that they ought to be included in the evidence presented by the prosecution in support of the tendencies.
50․I do not consider that incident 1 and incident 3 strongly support the tendency. Incident 1 is an occasion where the accused is said to have been watching adult pornography on his computer when his daughter and the complainant entered the room, at a time when they were around 13 years of age. The prosecution alleges that the accused paused the footage to speak with the girls and continued to play the footage when they left the room. There is no suggestion of any pre-planning on the part of the accused, or any conduct deliberately designed to ensure that the teenage girls observed the footage. The girls approached the accused without any apparent encouragement or direction from him. Incident 3 involves the accused playing a ‘R’ rated film that included imagery of BDSM practices and nudity to a group of teenagers at his residence, including one of the complainants and his own teenage children. In my view, these incidents do not demonstrate a sexual interest in children nor a tendency to act on that interest, and accordingly the presumption in s 97A does not apply. The incidents are not significantly probative of the tendency as particularised, even taken together with other evidence to be presented by the prosecution. These incidents are not admissible for the purposes of establishing tendency 1 and 4.
51․Each of the remaining incidents (7, 8, 9, 10 and 14) involve conduct against females under the age of 18 and reflect a sexual interest of the accused in girls under the age of 18, as well as acts in furtherance of that interest. Each incident occurred around or within the same time period that the charged acts are alleged to have been committed. In each instance, the young girls were guests or temporary residents in the accused’s home and friends with the accused’s daughter.
52․Incidents 7 and 8 involves the accused talking with young teenage girls about selling their virginity in specific detail including with respect to the prospect of the accused facilitating or brokering the sale of their virginity at a time when the witnesses were between 13 and 16 years of age and the accused was between 42 and 44 years of age.
53․Incident 9 involves multiple occasions in which the accused discussed BDSM equipment as well as specific and graphic sexual practices with three teenage girls at his residence at a time when all three were under the age of 18 and the accused was between 41 and 46 years of age. Incidents 10 and 14 involve uncharged acts where the accused is said to have shown two separate females under the age of 18 a BDSM photo album, when another teenage girl was present for incident 10 (when the witness was between 13 and 15 years of age) and when they were alone together at his home for incident 14 (when the witness was 16 years of age). The albums included images of women dressed in BDSM equipment revealing their breasts and genitals.
54․Accordingly, incidents 7, 8, 9, 10 and 14 are admissible as tendency evidence.
Tendency 3: to seek to expose adolescent females to sexualised material or content, including BDSM equipment and practices in furtherance of committing sexual acts; and
Tendency 7: to expose adolescent females to sexualised material or content, including BDSM equipment or practices
55․The prosecution relies on incidents 1, 2, 3, 7, 8, 9, 10, 12, 14 and 15 to establish tendencies 3 and 7. The accused submits that neither tendency as particularised reveal a sexual interest in children or a tendency to act on that interest and so do not come within the scope of s 97A. I do not agree.
56․Both tendencies express a specific form of a tendency to have a sexual interest in children (tendency 3) and a tendency to act on a sexual interest the accused had in children (tendency 7). In my view the presumption is invoked. There is no basis for the application of s 97A(4). The tendency evidence has significant probative value.
57․For the reasons above at [50], I do not consider that incidents 1 and 3 strongly support the tendency.
58․I am satisfied that incidents 2, 7, 8, 9, 10, 12, 14 and 15 strongly support the proof of tendencies 3 and 7 and that those tendencies strongly support proof of a fact that makes up the charged offences. Accordingly, the incidents are admissible as tendency evidence.
Tendency 5: to opportunistically commit sexual acts or engage in sexualised behaviour with adolescent or teenage females when they are socialising or residing at his residence.
59․The prosecution relies on all incidents in support of this tendency. The accused contends that the tendency as particularised does not demonstrate a tendency to act on a sexual interest in children and accordingly the s 97A presumption does not apply. I do not agree. I consider the tendency as particularised to be a specific form of a tendency to act on a sexual interest in children for all incidents relied upon, except incident 13.
60․For the reasons above at [50] I do not consider that incidents 1 and 3 strongly support the tendency.
61․Leaving incident 13 aside, all other incidents involve teenage girls under the age of 18. All incidents occurred in the accused’s residence when the complainants were either guests or temporary residents. All incidents reflect the accused seizing upon the circumstances of their presence at his residence to act upon a sexual interest in them, all adolescent girls, either by committing sexual acts upon them or engaging in sexualised behaviour in their presence. All incidents are demonstrative, in my view, of the asserted tendency. There is no basis for the application of s 97A(4).
62․While incident 13 does not fall within the scope of s 97A because the complainant was not under the age of 18 when the incident allegedly occurred, the accused conceded that this incident is significantly probative of tendency 5: s 97 Evidence Act.
63․I am satisfied the incidents relied upon (except for incidents 1 and 3) strongly support the proof of tendency 5 and that the tendency strongly supports proof of a fact that makes up the charged offences. Accordingly, all incidents except 1 and 3 are admissible as tendency evidence.
Tendency 6: to proposition or provide adolescent or teenage girls while they are socialising or residing at his residence with money to engage in sexualised behaviour either with or for him.
64․The prosecution relies on incidents 2, 4, 5, 6, 7, 8, 13 and 17 in support of tendency 6. The accused contends that the tendency as particularised does not demonstrate a tendency to act on a sexual interest in children and accordingly the s 97A presumption does not apply. I do not agree. In my view, the tendency as particularised is a specific form of a tendency to act on a sexual interest in teenage girls, except in relation to incident 13 for the reason already identified. The incidents are demonstrative of that tendency. There is no basis for the application of s 97A(4) of the Evidence Act.
65․The use of financial inducement in order to facilitate and encourage complainant participation in sexual acts is a recurring theme in the charged acts, being Counts 1 – 6 on the indictment (incidents 2, 4, 5, and 6). While incident 13 does not fall within the scope of s 97A because the complainant was not under the age of 18 when the incident allegedly occurred, the accused conceded that this incident is significantly probative of tendency 6: s 97 Evidence Act.
66․I am satisfied the incidents relied upon strongly support the proof of tendency 6 and that the tendency strongly supports proof of a fact that makes up the charged offences.
Tendency 2: to have a predominant sexual interest in breasts.
67․The particularisation of the tendency as asserted by the prosecution is not, in my view, significantly probative. As framed, it is certainly not tendency evidence that falls within the scope of s 97A. It is not the role of the Court in determining the status of tendency evidence to augment the terms of an asserted tendency to facilitate the admissibility of evidence the prosecution seeks to adduce. The accused’s objection to the tendency as generically framed by the prosecution was not without force.
68․That said, it was fairly conceded by the accused that the true nature of the tendency the prosecution was seeking to establish was a tendency to have a predominant interest in the breasts of adolescent females. Further, that if the tendency was expressed in that way the incidents relied upon (2, 4, 5, 6, 11, 12, 15, 16 and 17) supported the tendency, with the exception of incident 13. In light of that position, I consider it appropriate to deal with the determination of this part of the application on the basis that the particulars of the tendency will be amended to confine and clarify the scope of the tendency.
69․Confined to a predominant interest in the breasts of adolescent females, the tendency is one which reflects a tendency on the part of the accused to have a sexual interest in adolescent females. All incidents, except for incident 13, involve the accused directing his attention to the breasts of complainants under the age of 18. Incidents 2, 4, 5, 6, 11, 12, 15, 16 and 17 reveal a preoccupation by the accused in the complainants’ breasts, either through physical contact, requests for exposure or both. The tendency, as amended, is one which attracts the presumption in s 97A. The tendency evidence has significant probative value. Incident 13 does not fall within the scope of the amended tendency. I have already determined incident 13 to be admissible for a tendency purpose in relation to tendencies 5 and 6.
70․I am satisfied that the incidents relied upon (except incident 13) strongly support the proof of (an amended version) of tendency 2 and that the tendency (as amended) supports proof of a fact that makes up the charged offences. Accordingly, incidents 2, 4, 5, 6, 11, 12, 15, 16 and 17 are admissible as tendency evidence.
Context or relationship evidence
71․Given the view I have formed in relation to the tendency evidence and the incidents the prosecution can properly rely upon as part of the tendency case they allege against the accused, there remains two incidents to consider with respect to context evidence, namely incidents 1 and 3. While the accused opposed the admission of incidents 1 and 3 for a tendency purpose (a position endorsed by the findings I have made), the accused does not oppose these incidents being led as context evidence with respect to Ms A, the complainant for Counts 1, 2, 3, 4, 5 and 6. In my view, incidents 1 and 3 are properly admitted for the purposes of providing context to the nature and circumstances of the ‘relationship’ between Ms A and the accused and, accordingly, are relevant for the purposes of s 55(1) of the EvidenceAct.
72․The accused concedes that if incident 10 is not admitted for a tendency purpose it is nonetheless admissible for a context or relationship purpose with respect to complainant Ms B, the subject of Count 7.
Does the probative value outweigh the danger of unfair prejudice?: s 101(2) of the Evidence Act
73․Having determined that incidents 7, 8, 9, 10, and 14 are tendency evidence in support of tendencies 1, 3, 4, 5, 6 and 7, I turn to consider s 101(2). The accused highlights several factors said to apply globally to incidents 7, 8, 9, 10 and 14, in support of the submission that their probative value does not outweigh the danger of unfair prejudice and accordingly, they should not be admitted for a tendency purpose: s 101(2) Evidence Act.
74․Those factors are said to be:
(i)the peripheral nature of the incidents to the central issues in the trial and that they generally reflect poorly on the accused; and
(ii)that the evidence may be given undue weight and lead to the jury being overwhelmed in light of the more probative evidence which was conceded should be adduced; and
(iii)that the evidence of the incidents may be distracting in that none of them go to the “core tendencies” relevant to the proof of the charged conduct; and
(iv)that the evidence may cloud the jury’s ability to assess the evidence dispassionately; and
(v)evidence of the incidents will compound the accused’s forensic disadvantage arising from the requirement for him to respond to numerous uncharged acts occurring 20 years ago.
75․In my view, while the incidents identified as giving rise to an unfair prejudice are less serious in nature than other uncharged and charged acts, they are not entirely peripheral to the facts in issue. Indeed they are an important feature of the case the prosecution seeks to make against the accused. The number and nature of the incidents combine to give the evidence significant probative force.
76․The prosecution seek to demonstrate that the accused was conducting himself in such a way as to socialise and normalise the topic of sexual activity and behaviour as between himself and the teenage girls at his residence, in order to facilitate their participation in the more serious acts captured by the counts on the indictment. Incidents 7, 8, 9, 10 and 14 are significantly probative of the basis for the accused’s comfort in progressing toward more serious sexual acts in the face of the reaction he observes in each of the adolescent girls when discussing sexual activity and/or exposing them to BDSM practices. The incidents individually, though more so collectively, provide the foundation for the accused to move on to physical contact of a sexual nature with the complainants of the charged acts, there being no outward signs of outrage, fear or revulsion in response to the alleged conduct he engages in for incidents 7, 8, 9, 10 and 14. In this sense, these incidents could be seen as the accused ‘testing the waters’ with a view to escalating his conduct.
77․That the incidents generally reflect poorly on the accused is a consequence of the nature of the incidents. I accept that there is a danger they may be a source of prejudice to the accused. In circumstances where more serious conduct forms part of the body of evidence supporting the tendencies, I do not consider that prejudice to be such that the jury might make improper use of the evidence.
78․I do not consider the danger of undue weight being placed upon the evidence, or of it being overwhelming and/or distracting to the jury, to be significant in the circumstances when the nature of each incident is to be considered as part of the specific tendency it is said to support. In my view, careful directions can be crafted to assist the jury to understand the significance of the tendency evidence to their task in relation to each count on the indictment. Further, the jury will be given clear directions emphasising the need for all of the evidence, including the tendency evidence, to be assessed dispassionately, without emotion.
79․Given the tendency incidents involve less serious conduct as compared to the charged acts, it is difficult to accept that the incidents may be responsible for clouding the ability of the jury to put emotion aside and apply rational, reasoned thought processes. In and of themselves, the incidents do not involve conduct that would inevitably result in an emotional or irrational response. The same can be said for their collective effect, in my view.
80․I have carefully considered the forensic disadvantage said to flow to the accused by the extension of the prosecution’s tendency case to include incidents 7, 8, 9, 10 and 14. I accept that their inclusion will necessarily broaden the scope of matters the accused will be required to consider, and account for, to test the prosecution case. The allegations relate to a period of time many years ago. There are a multiple incidents. To the extent that a forensic disadvantage necessarily exists because of the historical nature of the allegations, I accept that the addition of further incidents reflecting less serious conduct may well have a compounding effect on that disadvantage. In my view, the conduct reflected in the additional five incidents does not tip the prejudice into the category of unfair.
81․The evidence of incidents 7, 8, 9, 10 and 14 has significant probative value. I am satisfied that the probative value outweighs the danger of unfair prejudice to the accused.
Orders
82․Accordingly, I make the following orders:
(1)Incidents 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 are admissible as tendency evidence as proof of tendencies 1 and 4.
(2)Incidents 2, 7, 8, 9, 10, 12, 14, and 15 are admissible as tendency evidence as proof of tendencies 3 and 7.
(3)Incidents 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 are admissible as tendency evidence as proof of tendency 5.
(4)Incidents 2, 4, 5, 6, 7, 8, 13 and 17 are admissible as tendency evidence as proof of tendency 6.
(5)Incidents 2, 4, 5, 6, 11, 12, 15, 16 and 17 are admissible as tendency evidence as proof of (amended) tendency 2 which will now be particularised as a tendency to have a predominant interest in the breasts of adolescent females.
(6)Incidents 1 and 3 are not admissible as tendency evidence. Incidents 1 and 3 are admissible with respect to complainant Ms A and Counts 1, 2, 3, 4, 5, and 6 as context evidence.
(7)This judgment is not to be published until the conclusion of the trial.
| I certify that the preceding eighty-two [82] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor Associate: Date: 17 May 2024 |
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