Director of Public Prosecutions v Wilson (a pseudonym)
[2023] ACTSC 100
•5 May 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Wilson (a pseudonym) |
Citation: | [2023] ACTSC 100 |
Hearing Date: | 24 April 2023 |
DecisionDate: | 5 May 2023 |
Before: | Berman AJ |
Decision: | See [66] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Pre-Trial Application – Application to Adduce Tendency Evidence – Child Sexual Offences – Where the two complainants are sisters – s 97A of the Evidence Act 2011 (ACT) – Presumption that evidence has significant probative value – Exceptional circumstances – Whether jury would have an emotional or irrational response to the evidence – Whether probative value of the tendency evidence outweighs danger of unfair prejudice |
Legislation Cited: | Evidence Act 2011 (ACT) ss 55, 97A, 97 |
Cases Cited: | Hughes v The Queen (2017) 263 CLR 338 |
Parties: | ACT Director of Public Prosecutions Joseph Wilson (a pseudonym) ( Accused) |
Representation: | Counsel N Deakes ( DPP) K Lee ( Accused) |
| Solicitors ACT Director of Public Prosecutions Tim Sharman Solicitors ( Accused) | |
File Number: | SCC 306 of 2022 |
Berman AJ:
Introduction
1․Allegations that the accused, Joseph Wilson (a pseudonym), indecently assaulted them have been made by two sisters. I will give them the pseudonyms “LO” and “FO”. This judgment determines the admissibility of the evidence of each sister when considering the allegations made by the other. The prosecution says that evidence is admissible as tendency evidence. The accused argues the contrary.
2․The accused knew the sisters through a family connection. The families would visit each other and there is no dispute that the sisters would visit the accused’s home from time to time and that he would visit theirs. The accused was born in February 1993 and so turned 18 in February 2011.
LO
3․LO was born in [redacted]. The allegations made by her concern two specific incidents, between February 2011 and January 2013, which have led to three charges being laid.
4․The first incident alleged by LO occurred when she was seven or eight years of age when she went with other members of her family to the accused’s family home. At one stage, she went to the front room of the home with the accused and her brother. There was a TV there. The accused asked LO to sit on his lap and, after a while, asked if he could tickle her. She agreed and the accused rubbed her arms and legs with his hands. The accused began kissing her arms, then her cheek. The accused asked her to kiss him on the cheek. As she went to do that, he turned his head so that she ended up kissing him on the mouth. The accused placed a hand on the back of her head during the kiss. That is the evidence on which the first charge is based.
5․The second charge arises from what LO says occurred after the events I have just described. After the accused kissed LO, he moved his hands inside the shirt that LO was wearing and placed his hands on her chest and stomach. He moved his other hand inside her leggings and alternated between having his hand on her thighs and inside her underwear touching her genitals. He did not penetrate her. This lasted about 5 to 10 minutes.
6․The second incident, giving rise to the third charge, alleged by LO occurred during a later visit to the accused’s home. Once again she, the accused and her brother went to the front room to watch TV. Her brother played video games sitting on a stool close to the TV. The accused and LO sat on one of the couches at the back of the room. The accused asked LO if he could tickle her to which she agreed. The accused picked up one of her arms and began kissing it and eventually, he was kissing further up her arm over time. When the kisses reached her neck, her brother turned around. The accused said something like he was “blowing air into a balloon” and her brother turned back to face the TV.
FO
7․FO was older than LO. She was born in [redacted]. Her allegations of things which occurred between 2010 to 2018 have led to 6 charges being laid.
8․She also alleges other conduct which is not the subject of a charge, but is sought to be led by the Crown as tendency evidence.
9․The first uncharged acts are alleged to have occurred between 2010 and 2012. At times, the accused would make comments to FO about the size of her breasts and the attractiveness of her bottom. These comments began when she was 14 when the accused would babysit her and her siblings during the school holidays.
10․The first charge concerning FO is based on an allegation that when she was 15 years old, the accused came to her home saying that he intended to borrow her brother’s game console. He pulled her into the front lounge room and held her down. He kissed her neck a number of times and rubbed her genitals over her clothes. She could feel that the accused had an erection.
11․After that incident, the accused tried to pull her to his car but stopped when her brother came outside and asked what they were doing.
12․The second charge concerning FO was alleged to have occurred when she was 15 or 16 at a family friend’s party. Whilst there, the accused touched her buttocks 20 to 30 times. FO asked him to stop on many occasions.
13․The third and fourth charges concerning FO are alleged to have occurred when she was close to 17 years old and at the accused’s family home. As she walked to the bathroom the accused grabbed her and pulled her into his room. He pushed FO down onto his bed and tried to kiss her. He succeeded in kissing her neck on a number of occasions. This conduct has led to 2 charges.
14․The next relevant allegations are more uncharged acts. FO recalls being pulled by the accused into his room when she visited the family home on a number of occasions, between when she was 12 and 17, and being pushed onto the bed during one or two of them. FO recalls the accused hugging her and running his hands up and down her back.
15․The next allegation has led to a charge being laid. When FO was around 17 years old she, the accused, his sister and his sister’s boyfriend were watching a movie in the theatre room of the accused’s family home. After the accused’s sister and her boyfriend left the room at the suggestion of the accused, he picked FO up and put her down on the couch, holding her down so that she could not move. He then kissed her neck and moved his hand between her inner thighs and rubbed her genitals over the top of her clothes. She told the accused that she was uncomfortable and did not like what he was doing, to which he responded by asking her to be quiet a number of times. The incident ended when the accused’s sister and her boyfriend returned to the room.
16․The final charge faced by the accused was alleged to have occurred in 2017 when FO was 21. She and the accused went to the accused’s sister’s wedding which was held overseas. Whilst there, the accused flirted with FO but she rebuffed these advances telling the accused she was not interested in him.
17․After the wedding was over, a reception event was held at the accused’s family home in Canberra. The accused’s mother became intoxicated, so FO offered to take her to her bedroom. As she left the bedroom the accused was standing outside. They had a conversation after which the accused pushed her up against the wall, grabbed her breasts and squeezed them.
Tendency application
18․The prosecution has filed and served an amended notice of intention to adduce tendency evidence dated 12 April 2023 concerning the counts referred to above, together with the uncharged allegations that the accused made comments to FO about the size of her breasts and the attractiveness of her bottom when she was 14 and the occasions when he pulled her into his bedroom between when she was 12 and 17.
19․Mr Lee, who appears for the accused, has no objection to tendency evidence being relied on by the prosecution insofar as it relates to the evidence of that particular complainant being used when considering the allegations of that complainant, but does object to the evidence of one complainant being admissible when the evidence of the other complainant is considered, and vice versa. In effect, Mr Lee says there should be two trials and the prosecution says there should be one.
20․There is a helpful identification of the appropriate process for determining whether the prosecution will be permitted to adduce tendency evidence in a particular matter in R v QX (No 5) [2021] ACTSC 247 at [71] where Loukas-Karlsson J says:
Following the amendments to the Evidence Act, the process for determining whether the prosecution will be permitted to adduce the tendency evidence is as follows:
(a) Establishing that the evidence is relevant pursuant to s 55 of the Evidence Act;
(b) Determining the preliminary threshold in s 97 of the Evidence Act:
(1) Whether the prosecution has provided sufficient notice: s 97(1)(a);
(2)Whether the evidence has significant probative value: s 97(1)(b). At this stage of the analysis, consideration must also be given as to whether the presumption in s 97A(2) of the Evidence Act applies in the proceeding and whether there are any sufficient grounds to rebut the presumption pursuant to ss 97A(4) and (5);
(c)If the evidence satisfies s 97 of the Evidence Act, then proceeding to determine whether the probative value of the evidence outweighs the danger of unfair prejudice to the defendant: s 101(2).
(d)Additionally, a final further step may be consideration of whether the Court should use the discretion to refuse to admit the evidence pursuant to s 135 or whether the Court must refuse to admit the evidence pursuant to s 137.
21․Accordingly, the first step is to determine whether the evidence is relevant.
Relevance
22․Section 55 of the Evidence Act 2011 (ACT) provides:
55Relevant 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)In particular, evidence is not taken to be irrelevant only because it relates only to –
(a) the credibility of a witness; or
(b)the admissibility of other evidence; or
(c) a failure to present evidence.
23․For reasons which I will explain when dealing with the question of whether the evidence has significant probative value, I am satisfied that the evidence of LO can rationally affect the assessment of the most fundamental fact in issue as regards to the allegations made by FO, namely did the accused do what FO said he did.
24․Additionally, for reasons which I will also explain later, I am satisfied that the evidence of FO can rationally affect the assessment of the most fundamental fact in issue as regards to the allegations made by LO, namely did the accused do what LO said he did.
25․Indeed, it is difficult to conceive of a situation where evidence would have significant probative value but not be relevant.
26․Accordingly, I find that the evidence of LO is relevant to a consideration of the complaints made by FO and that the evidence of FO is relevant to a consideration of the complaints made by LO.
Notice
27․The next step is to consider whether the prosecution has provided sufficient notice. Section 97(1)(a) of the Evidence Act 2011 (ACT) provides that tendency evidence is not admissible unless the party “seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence”. Mr Lee concedes that it has. Section 97(1)(a) is satisfied.
Significant probative value
28․That brings me to an assessment of whether the evidence has significant probative value. It is here that there is a dispute between the parties.
29․The starting point of my consideration of the issue in dispute is s 97A of the Evidence Act 2011 (ACT), a provision introduced following the report of the Royal Commission into Institutional Responses to Child Sexual Abuse.
30․Section 97A of the Evidence Act 2011 (ACT) provides:
97AAdmissibility of tendency evidence in proceedings involving child sexual offences
(1) This section applies in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue.
(2)It is presumed that the following tendency evidence about the defendant will have significant probative value for 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:
tendency sexual interest or act(a) the sexual interest or act to which the tendency evidence relates (the alleged sexual interest or act) is different from the sexual interest or act alleged in the proceeding (the );
(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.
31․I note of course that FO was not a child (that is someone under the age of 18) at the time of the incident, the subject of the last count. I will return to the significance of that circumstance later in this judgment.
32․Of particular importance to the present matter are two aspects of the new s 97A. Firstly, there is the presumption that tendency evidence about a sexual interest in children, or acting on that interest, is presumed to have significant probative value. Secondly, s 97A(5) lists a series of matters which I am to ignore in determining whether that presumption has been rebutted unless there are “exceptional circumstances”. Logically, I can only assess whether the presumption of significant probative value has been rebutted once I have determined what factors may be taken into account in making that decision.
Are there are exceptional circumstances?
33․Thus, before I can decide whether the presumption in favour of significant probative value has been rebutted, I need to determine which matters I can take into account in making that assessment. Mr Lee argues that there are exceptional circumstances in the present matter because the allegations involving LO are insufficient in themselves to establish any tendency involving FO and are in any case quite different to the allegations involving FO in this respect: the allegations of LO relate to a time when she was pre-pubescent whereas the allegations involving FO do not. In his oral submissions, Mr Lee described the “real issue” in the present matter as being that a sexual interest in the older sister is quite different to a sexual interest in the younger sister.
34․LO was either seven or eight years old and the accused was 18 years old at the time of the allegations made by her. However, the age gap between FO and the accused at the time her allegations relate to is much narrower, only three years, and although sexualised comments were made to FO when she was 14, it was not until she was 15 that she first alleges an act of indecency.
35․I am satisfied that those circumstances are exceptional for the purposes of s 97A(5). There is a very big difference between an 18-year-old indecently assaulting a girl of 7 or 8 years old and a 17 year old making sexualised comments to a 14 year old girl and then as an 18 or 19 year old committing acts of indecency on a girl 3 years younger than him. The former has the flavour of paedophilia, while the latter was described by Mr Lee as an adolescent male acting on a sexual attraction to an age-appropriate friend.
36․That means that I will take into account the factors referred to in s 97A(5)(b), (c), (d) and (g). I will take into account that the circumstances are different. I will take into account that the personal characteristics of the subject of the tendency sexual interest or act are different to those the subject of the alleged sexual interest or act, as is the relationship between them. I will take into account the relevant ages and the differences in the nature of the relationship. The relationship of the accused to LO, ignoring the allegations of indecency, could be characterised as an “older brother” type of relationship but the relationship with FO, again ignoring the allegations of indecency, was more in the nature of a friendship. I accept that there is a significant difference between a sexual interest a high school age teenager may have in a teenager only three years younger and an unnatural and unusual sexual interest towards a pre-pubescent child. Finally, I will take into account the generality of the tendency to which the tendency evidence relates.
Consideration on significant probative value
37․However, even taking into account those exceptional features, I am not satisfied that the presumption of significant probative value has been rebutted. For those allegations which concern FO when she was not a child (so that s 97A does not apply), I am satisfied that the prosecution has demonstrated significant probative value.
38․I will explain why I have reached that conclusion.
39․The way in which to evaluate the probative value of evidence which is asserted to be tendency evidence is as explained in Hughes v The Queen (2017) 263 CLR 338 at [40]:
In the trial of child sexual offences, it is common for the complainant's account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford: “the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged”. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.
40․And in Hughes at [41], it is emphasised that there are two interrelated but separate matters:
The assessment of whether evidence has significant probative value in relation to each count 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. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi”. 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.
41․I note that the complainants are sisters and, obviously, part of the same family which has a friendly relationship with the accused’s family. The demonstrated tendency is much more than a tendency relating to children or young women generally. It is a tendency to have a sexual interest in girls from a particular family and to act on that sexual interest from time to time.
42․There is a similarity as well in the circumstances in which the alleged offences occurred. The first similarity is that the offences, apart from one, were alleged to have occurred either at the accused’s home or the home of the complainants.
43․All the offences are alleged to have been committed when other people, particularly family members, are nearby. That aspect of the complaints by the two sisters is particularly probative. To engage in the behaviour described by the complainants when family members are nearby, sometimes even in the same room, is clearly risky, and a jury may well view descriptions of such behaviour with some circumspection. But a jury’s doubts about the credibility of such allegations will be clearly affected by evidence from another source of similar behaviour. There is much similarity between this aspect of the present case and Hughes where the tendency evidence demonstrated “that the appellant was a person with a tendency to engage in sexually predatory conduct with underage girls as and when an opportunity presented itself in order to obtain fleeting gratification, notwithstanding the high risk of detection” (Hughes at [56] and see also [56]-[60]).
44․What is not alleged is important too. The allegations do not involve any form of penetrative sexual activity and neither complainant alleges that she was forced or even encouraged to have any contact with the accused’s genitals.
45․In Taylor v The Queen [2020] NSWCCA 355, Bell P (as he then was) helpfully summarised the propositions and principles which are to be considered when determining the admissibility of tendency evidence. One matter of present relevance is at [122(vii)] which observes:
the closer the degree of similarity, the more significant and more probative the evidence is likely to be…
46․While there are differences, particularly in regard to the ages of the people involved, the similarities I have described above are notable, something which increases the probative value of the evidence.
47․Mr Lee submits that the two incidents relied on by the prosecution concerning LO were closely related in time and had not been repeated, these factors affecting the probative value of evidence regarding those incidents when considering the evidence of FO. Certainly the evidence of LO would be more probative had she alleged similar misconduct over a lengthy period, but a tendency can be demonstrated from evidence of isolated misconduct and in any case, there remain those similarities which I have referred to earlier, namely the two sisters coming from the one family, the offences (apart from one) occurring in the home of one of the two families, the offences not involving penetration or forced stimulation of the accused’s penis, and the conduct being engaged in when other people, usually family members, are nearby.
48․Mr Lee is correct to identify the circumstance that the conduct alleged by LO has not been repeated in the decade since as being a relevant factor in deciding the probative value of her evidence (see McPhillamy v The Queen [2018] HCA 52). But that factor is not determinative. In McPhillamy there was not only the ten-year gap but also the consideration that the offending against the complainants described as “B” and “C” occurred in different circumstances to the allegations made by “A”. In this case, the circumstances in which the alleged offences against the sisters were committed were not dissimilar at all.
49․As Hughes at [41] makes clear, I must decide whether the evidence supports the tendency alleged. Of course, that must be done for each complainant separately.
LO consideration
50․I have already mentioned that LO alleges two separate incidents, perhaps closely together in time, which have not been repeated. She alleges acts of indecency committed upon her in her home whilst a family member is present, those acts of indecency involving kissing and touching. Such evidence supports the tendency particularised by the prosecution which can be broadly summarised as a tendency to have and act on a sexual interest in children by engaging in opportunistic acts of indecency. Conduct such as she described is unusual, particularly the allegation that the accused has taken the opportunity to do what he did in the presence of a family member.
51․The next step is to consider the extent to which the evidence of LO makes it more likely the allegations made by FO occurred. It is here that the similarities I have mentioned above at [41]-[44] are of particular importance. The evidence of LO makes it substantially more likely that the accused did what FO alleges.
FO consideration
52․I must now take the same steps in considering the proposed use of the evidence of FO when considering the allegations made by LO.
53․FO alleges repeated acts of indecency occurring over a considerable time. She alleges kissing and touching on multiple occasions when family members, of her family or that of the accused, are nearby. As with LO, the evidence of FO supports the tendency particularised by the prosecution. Conduct such as FO described is unusual, particularly the allegation that the accused has taken the opportunity to do what he did in the presence of a family member.
54․Again, when I consider the extent to which the evidence of FO makes it more likely the allegations made by LO occurred, it is here that the similarities I have mentioned above, at [41]-[44] are of particular importance. I conclude that the evidence of FO makes it substantially more likely that the accused did what LO alleges.
55․That is why I have decided that even taking into account the exceptional features relied on by the accused, I am not satisfied that the presumption of significant probative value has been rebutted. For those allegations which concern FO when she was not a child (so that s 97A does not apply) I am satisfied that the prosecution has demonstrated significant probative value.
Prejudicial effect
56․Returning to the steps identified in R v QX(No 5), it is now my task to determine whether the probative value of the evidence outweighs the danger of unfair prejudice to the accused.
57․In Taylor v The Queen at [122(xxiii)], Bell P identified a number of matters from which unfair prejudice might arise:
unfair prejudice might arise from:
(a) the nature or quality of the conduct the subject of the tendency evidence;
(b) whether or not it has been established or the subject of admissions;
(c)where it involves a plethora of factors that might give rise to a confusion or distraction;
(d) whether it is corroborated;
(e)an underestimation by the jury of the number of persons who share the tendency: see Hughes at [17];
(f)where there has been no past conviction or admission as to the past conduct, the need for an accused to answer uncharged conduct potentially stretching back over many years: see Hughes at [17]; and
(g) a jury's emotional or irrational response to particular tendency evidence; or
(h) any combination of the above (non-exhaustive) factors;
58․It is the prospect of the jury having an emotional or irrational response to the evidence of LO which was raised in this matter. Mr Lee submitted that there was a particularly grave risk of unfair prejudice to the accused in the circumstances of this case. If the allegations of FO were heard without reference to the evidence of LO, then the jury would only hear allegations of the accused acting in an indecent way towards a post-pubescent child who was a mere three years younger than the accused. The admission of evidence from LO as tendency evidence would introduce the allegation that the accused was a person who molested a pre-pubescent child who was much younger than him. That, said Mr Lee, is the sort of evidence which could engender an emotional or irrational response on the part of the jury which may not be overcome by an appropriate direction.
59․Mr Lee makes a good point but not too much should be made of it. After all, trials for sexual offending against children, much worse than alleged against LO, are regrettably commonplace and the criminal justice system operates on the basis that jurors are capable of following judges’ directions by putting emotion aside and deciding their verdicts after coldly analysing the evidence before them.
60․In Taylor v The Queen at [122(xxv)], Bell P observed that:
acceptance of the proposition that juries generally follow directions given to them by trial judges, and that that obedience will often solve problems of prejudice against an accused person, has its limits, and judicial directions to juries are not to be thought of as an unfailing panacea for all forms of prejudice …
61․And further at [122(xxvi)]:
there will be cases … where directions to a jury, even coupled with an assumption that they will be conscientiously followed, will be incapable of overcoming or ameliorating prejudice …
62․However, any emotional reaction on the part of a juror in hearing the allegations made by LO is not likely to be so extreme that appropriate directions are unable to achieve an unemotional consideration of the evidence by that juror. The physical acts alleged by LO are of relatively minor assaults which are much less disturbing than many other allegations considered in Courts of Australia on a daily basis.
63․It is worth noting that if it was the case that jury directions could not overcome or ameliorate the risk of a jury acting illogically or emotionally upon hearing LO’s evidence, then no trial of any of her allegations would be a fair one. I do not believe that the accused could not get a fair trial of those counts involving LO.
64․A further, related, submission made by Mr Lee is that “there is a real danger that the jury will improperly use [the evidence of LO] to find the respondent has a sexual interest in children more broadly, without considering the differences in a sexual interest in a pre-pubescent child and the alleged sexual offending against [FO]”. I have little doubt that such differences would be a substantial part of the arguments advanced on behalf of the accused at trial and that, together with appropriate directions from the trial judge, would leave the jury in no doubt as to the importance of examining such differences to see the extent to which their consideration of counts involving FO is assisted by the counts involving LO.
65․I am satisfied that the probative value of the evidence outweighs the danger of unfair prejudice to the accused, whether that is using the evidence of LO in the case of FO or vice versa. I do note however that the prejudicial effect referred to by Mr Lee could only potentially arise if the prosecution was allowed to use the evidence of LO to make more likely the allegations of FO. There can be little or no unfair prejudicial effect arising from the fact that the tendency evidence is of child sexual assault offences where the allegations of FO are used to make more likely the allegations of LO. That is because the allegations of LO are themselves allegations of child sexual assault which would be put before the jury anyway.
Orders
66․Accordingly, the orders that I make are:
1.Leave is granted to file the amended notice of intention to adduce tendency evidence dated 12 April 2023.
2.The prosecution be permitted to adduce tendency evidence as notified in the amended notice of intention to adduce tendency evidence dated 12 April 2023.
| I certify that the preceding sixty-six [66] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Berman. Associate: Date: 1 August 2025 |
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