Franklin (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0020

JEREMY FRANKLIN (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	WALKER, TAYLOR and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2024
DATE OF JUDGMENT:	19 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 213
JUDGMENT APPEALED FROM:	DPP v [Franklin (a pseudonym)] (Unreported, County Court of Victoria, 21 September 2022, Judge Meredith)

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CRIMINAL LAW – Appeal – Tendency evidence – Acts revealed sexual attraction to biological daughters and a willingness to act on that attraction – Features of or about offending establishing common link – Tendency had significant probative value – Acts alleged in relation to one complainant significantly more serious than acts alleged in relation to second complainant – Probative value of serious allegations did not substantially outweigh prejudicial effect of that evidence in relation to the less serious alleged offending – Directions given to jury were not sufficient to manage risk of unfair prejudice – Leave to appeal granted – Appeal allowed in part – Applicant resentenced.

Evidence Act 2008, ss 97 and 101; Jury Directions Act 2015, ss 9–16.

R v Bauer (2018) 266 CLR 56, Hughes v The Queen (2017) 263 CLR 338, McPhillamy v The Queen (2018) 92 ALJR 1045, DPP v Roder (a pseudonym) (2024) 98 ALJR 644, DPP v Pearson (a pseudonym) (2021) 293 A Crim R 179, considered.

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Counsel
Applicant:		Mr D Gurvich KC with Mr A Hands
Respondent:		Mr L McAuliffe
Solicitors
Applicant:	Adrian Paull Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA:

I agree with Boyce JA.

TAYLOR JA:

I agree with Boyce JA.

BOYCE JA:

Introduction

An indictment filed in the County Court charged the applicant with sexual offending against his two daughters ‘AB’ and ‘CD’. The offending against AB was alleged to have occurred on five occasions, between 13 February 2018 and September 2019, when AB was aged about 11. The offending against CD was alleged to have occurred on two occasions, on 5 September 2019, when CD was eight. The indictment also alleged that the applicant had committed the offence of supplying a drug of dependence to a child.
The applicant pleaded not guilty. At the close of the prosecution case the trial judge directed the jury to find the applicant not guilty of the supply a drug of dependence charge. He also directed the jury to find the applicant not guilty of charge 3 — a charge alleging that the applicant had committed the offence of incest against AB. As an alternative to charge 3, the jury were invited to consider a charge of attempted incest.
On 21 September 2022, the jury found the applicant guilty of all remaining charges. On 14 December 2022, the applicant was sentenced as follows.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Sexual penetration of a child or lineal descendant[1]	25 years	8 years	2 years
2	Sexual assault of a child under the age of 16[2]	10 years	42 months	Nil
3	Attempted sexual penetration of a child or lineal descendant[3]	20 years	6 years	1 year
4	Sexual penetration of a child or lineal descendant[4]	25 years	10 years	Base
5	Sexual assault of a child under the age of 16[5]	10 years	3 years	1 year
6	Sexual assault of a child under the age of 16[6]	10 years	3 months	Nil
7	Sexual assault of a child under the age of 16[7]	10 years	42 months	6 months
Total Effective Sentence:		14 years and 6 months’ imprisonment
Non-Parole Period:		9 years imprisonment
Pre-sentence Detention Declared:		84 days
Section 6AAA Statement:		Nil
Other Relevant Orders: 1. Pursuant to s 6F of the Sentencing Act 1991 (Vic), the applicant was sentenced as a serious sexual offender in respect of charges 4, 3, 5 and 6. 2. Pursuant to s 34 of the Sex Offenders Registration Act 2004, the length of the reporting period is life.

[1]Contrary to s 50C(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[2]Contrary to s 49D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[3]Contrary to s 50C(1) of the Crimes Act 1958 and s 321M of the Crimes Act 1958, a statutory alternative to the charged offence, pursuant to s 239(2) of the Criminal Procedure Act 2009.

[4]Contrary to s 50C(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[5]Contrary to s 49D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[6]Contrary to s 49D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[7]Contrary to s 49D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.

The applicant seeks leave to appeal against his convictions. The grounds upon which leave is sought are as follows:
GROUND 1
A substantial miscarriage of justice has occurred in circumstances where the learned trial judge erred in admitting the tendency evidence of [AB] into evidence where [CD] was the victim and admitting the tendency evidence of [CD] into evidence where [AB] was the victim by finding that that evidence had ‘significant probative value’ in relation to each victim.
GROUND 2
A substantial miscarriage of justice has occurred in circumstances where the learned trial judge should have ruled that the tendency evidence of [AB] in relation to the counts where [CD] [sic] was inadmissible under s101(2) of the CPA[8] because the probative value of the evidence did not substantially outweigh any prejudicial effect it may have on the accused. The learned trial judge ruled that any prejudice could be ameliorated by judicial direction.
GROUND 3
A substantial miscarriage of justice has occurred in circumstances where the learned trial judge failed to direct the jury in relation to what tendency evidence supported each count and the use that the jury could and could not make of that evidence.
GROUND 4
A substantial miscarriage of justice has occurred in circumstances where the learned trial judge failed to direct the jury in relation to the charged acts of sexual offending against [AB] and [CD], that before the jury could use that evidence as tendency evidence to support each count, they had to be satisfied beyond reasonable doubt that those charged acts had, in fact, occurred.
[8]Criminal Procedure Act 2009. The notice of appeal referred to s 101(1), but this was plainly a typographical error.
After delivery by the High Court of its decision in DPP v Roder (a pseudonym)[9] on 17 April 2024, the applicant abandoned ground 4.
[9](2024) 98 ALJR 644; [2024] HCA 15 (‘Roder’).
For the reasons that follow, I am of the opinion that leave to appeal against conviction must be granted, the appeal allowed in part and the applicant resentenced.

The prosecution case at trial

AB and CD are the applicant’s biological daughters.[10] The applicant and the mother separated when CD was aged about one and AB around three. The applicant went to live with his mother and father at a location outside Melbourne (‘the first property’). Other siblings of the applicant also resided at the first property. The applicant slept in a caravan at this property. In late 2018, the applicant moved — with his family — to another property (‘the second property’). There, the applicant slept in a campervan parked in a shed on the property.
[10]AB was born on 13 February 2008; CD was born on 29 August 2011.
After the separation, the mother had initial custody of AB and CD. The applicant saw his daughters on weekends. By at least March 2019, and pursuant to court order, the applicant was granted full custody of AB and CD. The mother had access to her daughters one night during the week and one night on the weekend. Later in 2019, these custody arrangements changed by agreement: the daughters stayed with the applicant from Sunday or Monday through to Thursday and the mother looked after the daughters for the remainder of the week.

AB’s evidence

AB’s evidence was recorded by means of a video/audio recording (a ‘VARE’). She was then cross‑examined at a Special Hearing. Her VARE and the Special Hearing were then played to the jury. In fact, AB took part in two VAREs; the first was conducted on 17 September 2019, when AB was 11 years old; the other was conducted on 19 June 2020, when AB was 12 years old.
In AB’s first VARE she said that the applicant would touch her inappropriately by putting his private parts on her private parts. She said that the applicant would use his hand to touch her private parts. AB said that the applicant put his penis in her anus and tried to put his penis in her vagina. She said that this activity started around two years earlier. The touching started with the applicant placing his hand on AB’s vagina over her clothing; but then the applicant’s hand started going under her clothes. The applicant then started putting his penis on top of her clothes. This activity got worse. The touching over the clothes occurred a lot. The touching started when AB was aged about nine turning 10. AB thought that this activity might have commenced in the caravan at the first property.
It was in AB’s first VARE that she spoke about the charge 1 (incest) offending. She said that she was lying on her stomach on the bed in the applicant’s caravan at the first property. The applicant entered the caravan. The applicant pulled down AB’s jeans to her knees. The applicant pulled down his own pants and inserted his penis into her anus. During this act the applicant lay on top of AB with his arms on either side of her holding himself up. AB said ‘no’, told the applicant to ‘get off’, and managed to get the applicant off her. AB said that this was the first occasion that the applicant penetrated her anally.
Concerning charge 2 (sexual assault), AB said in her first VARE that directly after the act of anal penetration just described, the applicant placed his hand underneath her jeans and started to rub AB’s vagina over her underwear.
As to the alternative to charge 3 (attempted incest), AB said in her first VARE that at some point after school she was at the second property with the applicant. They were in the caravan or campervan. AB was 10 years old and wearing shorts and a school top. The applicant produced a box of condoms and asked AB to put a condom on him. AB said ‘no’. The applicant pulled down AB’s shorts as well as his own pants. The applicant placed a condom on his penis. AB said that the applicant ‘was just trying to put it into my hole’ and that ‘he was trying to put it inside of my vagina’. AB said that this was the first time she had seen a condom and the only time that the applicant had used one in her presence. The applicant later threw the condom down the side of the bed.
AB said in her second VARE that she recalled that the applicant used to watch pornography on his phone in the campervan. She said that the pornography depicted persons engaging in anal intercourse. The applicant would ask AB to try what was depicted in the pornography. AB ultimately acceded to this request. AB said that the applicant would put his penis inside AB’s bottom; that this happened ‘lots’. It happened in the campervan at the second property. AB said that the applicant liked to do this and she guessed that it could have occurred on 30 occasions. The applicant did not use a condom.
In support of charge 4 (incest), AB recalled one particular occasion in the campervan at the second property when she awoke to find her father watching pornography. The pornography depicted persons engaging in anal sex. The applicant then penetrated AB anally without a condom.
As to charge 7 (sexual assault), AB described — in her first VARE — an occasion on 6 September 2019 at the second property when AB was in the applicant’s campervan. AB was lying on top of the bed watching television. At about 5:00 pm, after school, the applicant entered the campervan and lay down next to the complainant. AB was wearing a tracksuit. The applicant placed his hand underneath AB’s underpants and touched her vagina.
AB said that the applicant told her not to tell anyone about what he had done to her.
When cross‑examined, AB agreed that she and CD had mostly lived with their mother but that this changed after an occasion when her mother slapped CD. The daughters then spent more time with their father. AB said that she received sex education at school in grades five and six. She denied that she talked to her friends in grade six about getting sex education or condoms. AB said that her nan, pop, two aunts, two uncles and one cousin lived at the second property. She said that she did not tell any of these persons about what the applicant had done to her. AB said that she slept in both the house and the campervan at the second property. She said that she slept more in the campervan.

CD’s evidence

CD made a VARE on 17 September 2019. She was later cross‑examined at a Special Hearing. She said that on 5 September 2019 she was on the bed under the blankets inside the applicant’s campervan at the second property. She was watching television. She said that the applicant entered the campervan and stood near the bed. The applicant reached forward and placed his hand under the blankets. He started rubbing CD’s vagina over her clothing (charge 5 – sexual assault). CD told him to stop and that it felt uncomfortable. CD got off the bed and went to leave the campervan. The applicant said ‘Keep it a little secret’. As CD passed the applicant he squeezed her bottom (charge 6 – sexual assault). CD said ‘don’t’ and the applicant stopped. After this, the applicant took CD to Kmart to purchase her a birthday present. CD said that she later told her mother about what had happened.
During cross‑examination, CD remembered that there was a period when she had lived mostly with her father; but there was a time before that when she had lived with her mother. CD agreed that there was an occasion when her mother had slapped her and AB. She could not remember if the living arrangements changed after that incident. CD said that the applicant lived with his mum, sisters, brothers and niece. She said that she did not get along well with the applicant’s mother. She agreed that she had not told any member of the applicant’s family about what the applicant had done to her. CD said that she had told AB that the applicant had touched her prior to telling her mother about what the applicant had done to her. She said that at the second property she slept mostly in the house whereas AB slept in the campervan.

The mother’s evidence

The mother said that she originally had custody of her two daughters and the applicant had more limited access. There was a time, however, in 2018 when the applicant took the two children and refused to give them back.
The mother spoke of a conversation that she had with CD on 10 September 2019. This conversation concerned an intended visit to a doctor and whether the doctor would need to see or touch CD’s private parts. CD told the mother that the applicant had touched her private parts, namely, her vagina. CD told the mother that the touching was over the top of her clothes and that it had occurred during the previous week. The mother said that CD had told her that she asked the applicant to stop and that she had hit the applicant. CD told her mother that she got off the bed to walk away but then the applicant grabbed CD on the bum. The mother said that CD then turned around, kicked him and took off. The mother said that CD asked whether this was sexual assault. The mother said that she told CD that it was.
The mother said that CD had wondered whether AB was assaulted as well. The mother sought CD’s permission to tell AB about what CD had told her. The next morning the mother said that she spoke to AB. The mother said that when she mentioned to AB what had happened to CD, AB appeared to her to know what the mother was talking about. The mother said that AB was crying and seemed really guilty. The mother said that she asked AB whether the applicant had touched her inappropriately; AB said ‘yes’.
The mother said that she suggested areas of AB’s body that may have been touched by the applicant. AB responded ‘my vagina and my bum’. The mother said that AB was really upset about the reference to her bum.
The mother said that AB told her that the applicant had touched her under and over her clothes with his penis. The mother said that AB did not know what penetration was and so the mother explained to AB that penetration was when ‘a part of one person’s body goes inside another person’s body’. The mother asked whether penetration had happened; AB said ‘yes’. AB told the mother that the applicant had penetrated her mouth, vagina and bum. The mother said that she thought that AB had told her that the applicant had touched her with his hand. The mother asked AB how long this had been going on; AB answered ‘it’s been a long time’. The mother said that she asked AB how many times and AB answered ‘too many’. AB said to the mother that it had occurred ‘almost every day’ when she was with the applicant.
The mother said that AB and CD were hesitant to make a report to the police after they discovered that the applicant would be arrested. The mother said that from the age of eight or nine AB had ongoing urinary tract infections, a kidney infection as well as bacterial vaginosis.
When cross‑examined, the mother denied that she had falsely accused the applicant of having sexually abused AB soon after she and the applicant had separated. The mother said that this earlier accusation was genuine and that she had gone to the police. The mother agreed that she had been involved with the Department of Health and Human Services prior to the court orders of March 2019 which granted custody of AB and CD to the applicant. The mother confirmed that the police had applied for an intervention order against her on behalf of the applicant and the two daughters. This order prevented the mother from attending at the first property and from committing family violence. The mother agreed that the basis for applying for the intervention order was that AB and CD alleged that the mother had slapped them.
The mother agreed that she had not taken AB to a doctor when she came to learn of AB’s disclosures of anal penetration. She said that she did go straight to the police. She did not take AB to a doctor because AB had not been with her father for a few days and AB was not injured so far as she was aware. The mother denied that she had spoken to AB about the results of any DNA testing between the first and second of AB’s VAREs.
The mother rejected defence counsel’s assertion that it was she who had made up the allegations about the applicant and had put these allegations into the mouths of AB and CD in order to get back at the applicant. She said that AB and CD looked a bit shocked when they were told that the applicant might be arrested. She said that AB and CD decided to make statements to the police after she had put their minds at rest.
The mother said that the day after she took the children to the police concerning the present matters, a court order was put in place granting her custody of the children. She denied that she had wanted the applicant not to have access to the children. She said, however, that this was the case now.
In re‑examination, the mother said that soon after CD had made her disclosures the mother sent a number of text messages to one of her friends about what she had been told by CD. She told the friend in the text exchange that CD’s disclosures had been prompted by her conversation with CD about being taken to the doctor. The mother told the friend that she would go to the police but that she would need to speak to AB first. In one of the text messages the mother said:
I don’t know if this is going to look like a tit for tat thing. One of my first thoughts was, what if they think I’ve told her to say this.

The mother said that she had made a report to police about AB being sexually abused when AB was three and this was in ‘probably 2011 or 2012’. The matter did not proceed to court. The mother said that no criminal charges were laid in respect of the allegation that she had slapped CD. The mother said that she had agreed to the terms of the intervention order but did not admit the truth of the allegations that were made in support of the application for that order.

The applicant’s brother’s evidence

The applicant’s brother gave evidence that in September 2019 he was living with the applicant. They lived with their mother, father and siblings. He recalled that AB and CD lived with them as well. He thought that the last time that he saw AB and CD was when they went to Kmart for CD’s birthday.
During cross‑examination, the brother said that AB and CD would normally sleep inside the house at the first property. Sometimes, however, one would sleep inside the house and the other would go out to the caravan. He said that AB and CD didn’t like sleeping in the same room together. He said that the applicant slept in the caravan. The brother thought that it was still light when they left to go to Kmart. At the second property AB and CD would sleep in a garage that was turned into a bedroom. He said that they would sometimes sleep in the campervan. He said that neither AB nor CD complained about their father having touched them in a sexual manner.

The school principal’s evidence

The principal of a primary school attended by AB gave evidence. He said that students would receive sex education in grades five and six; this occurred during the fourth term and would generally run for about six weeks. The principal said that AB received sex education at the school in grade five. He said that tuition concerning condoms was not, at least to his knowledge, given in grade five. He said that AB attended the grade six sex education course. That course ran for six weeks in term four. He confirmed that condom use was taught in the grade six sex education course.

The health educator’s evidence

This witness taught puberty courses at AB’s school. She said that she taught grades five and six. She could not recall the names of students who had attended the grade six class held in term four of 2019. She confirmed that condom use was taught to the grade six class. Only the grade six students were taught about sexually transmitted infections. Both grades five and six were taught about safe sex; this included information about responsible intercourse and prophylactics; however contraception was only taught in grade six. She thought that she taught grade five at the school in 2018.

The DNA expert’s evidence

This witness was asked to look at a condom that had been placed — inside out — over a pink highlighter pen. She was also asked to examine a different condom that had been placed — again, inside out — over a black highlighter pen. The witness explained that each condom had been turned inside out (when compared to the manner in which it would originally have been unrolled) before being placed over its respective highlighter pen. This meant that the inside of each condom, as received by the witness, was in fact the outside of the condom as it would have originally presented itself when unrolled.
Insofar as the condom covering the pink highlighter was concerned, there was no semen detected inside the condom, that is, in the state that this condom was received. There was one sperm cell detected on the outside of the condom (as received). There were two DNA samples collected from this condom; one from the inside surface (as received) and one from the outside surface (as received).
The sample taken from the inside surface revealed a mixed partial DNA profile with a minimum of two contributors. The DNA evidence in respect of this sample was 460 million times more likely if the applicant was a contributor compared to if he was not. The DNA evidence for this sample was 83 times more likely if AB was a contributor than if she was not a contributor.
The DNA sample taken from the outside surface (as received) revealed a partial single source DNA profile. AB was excluded from this sample and the DNA evidence was 100,000 times more likely if the applicant was the source of the DNA compared to if he was not.
Insofar as the condom covering the black highlighter pen was concerned, no semen was detected on the inside surface (as received) whereas semen was detected on the outside surface (as received).
In respect of the DNA located on the outside surface, because sperm cells were detected, the sample was split into two fractions: one to collect the sperm cells (the sperm fraction), the other to collect any other biological material (the non‑sperm fraction).
In respect of the sperm fraction, a partial single source DNA profile was obtained, and in respect of the non‑sperm fraction, a partial single source DNA profile was also obtained. Insofar as the sperm fraction profile was concerned, AB was excluded as a source of the DNA whereas the DNA evidence was 3.7 billion times more likely if the applicant was the source of the DNA compared to if he was not. As for the non‑sperm fraction, AB was excluded as a source of the DNA and the DNA evidence was 64 billion times more likely if the applicant was the source compared to if he was not.
The witness then stated that on the inside surface (as received) of the condom covering the black highlighter pen, a mixed DNA profile with a minimum of two contributors was obtained. As to this profile, the DNA evidence was 100 billion times more likely if the applicant was a contributor than if he was not; and the DNA evidence was 100 billion times more likely if AB was a contributor compared to if she was not.
During cross‑examination, the witness agreed that she could not date the deposition of any DNA sample. She also gave evidence about the possibility of DNA transfer. The witness was unable to say what the nature of any DNA sample was that linked AB to a condom. The witness could not say how any DNA sample linking AB may have been deposited.

The informant’s evidence

The informant said that she learned, on 11 September 2019, that the mother of AB and CD had reported to police sexual offending allegedly committed by the applicant. She said that on this day neither AB nor CD were prepared to make police statements. Nevertheless, both AB and CD returned on 17 September 2019 to participate in their respective VAREs.
On 2 October 2019, police searched the applicant’s campervan at the second property. Police located the pink highlighter, encased inside a condom, on a shelf at the back of the campervan. The black highlighter, also encased inside a condom, was located on the shelf at the back of the campervan. The shelf was like a bed‑head that was connected to the double bed. There was a television above the bed. A number of opened condom boxes were found. The informant said that there had been no discussion with AB about forensics. AB refused a medical examination. The informant said that the earlier complaint about sexual abuse of AB — when AB was three — did not proceed to court because AB was too young. The informant said that the complaint about the mother having slapped her children was actually an allegation that the mother slapped CD. This matter did not proceed to prosecution because the applicant withdrew the complaint.
The prosecution tendered the applicant’s record of interview with police through the informant. This interview was conducted on 2 October 2019. In the interview the applicant spoke about how he had earlier obtained full custody of AB and CD by means of court order. The applicant considered that the current allegations made against him were just a continuation of the earlier false complaint which concerned him having sexually abused AB in 2011. This was, he said, a tactic employed by the mother so as to obtain custody of the children. He said that he thought it far from coincidental that the present allegations arose when all parties were soon to be back in court in December. He said that the mother had mental problems.
The applicant denied the offending. He said that CD was the one who was always pinching people on the bum. He said that since separating from the mother he had concentrated on the welfare of his children. He alleged that in August, the year earlier, the mother had kept the children from him for a period of seven weeks. He spoke of the intervention order that had been taken out against the mother. He said that the girls would sometimes sleep in the caravan at the first property. He said that AB would occasionally sleep in the campervan with him at the second property. He said that the condoms that were found in the campervan were from a time when he had had sex with his girlfriend. He explained the presence of the condoms He denied that any of AB’s DNA could be on the condoms. He said that AB had been speaking about condoms as a result of her sex education classes and that, as a result, he had spoken to AB about condoms.
During cross‑examination, the informant said that when AB and CD first went to the police station it did not seem to her that they were upset at the prospect of the applicant being arrested. She said that she did not speak to AB or the mother, between AB’s two VAREs, about any condoms requiring forensic analysis.

The applicant’s sister’s evidence

The applicant’s sister said that she lived at the second property with her mother, her siblings and her child. She recalled that AB and CD used to come and visit. She thought that the last time she saw the children was probably around 2019. She recalled an occasion when the girls went on a trip to Kmart. She recalled that the applicant asked the girls to clean their room before the trip.
During cross‑examination she said that in September 2019 she was living at the second property with the applicant, her younger two brothers, her younger sister and her parents. She remembered a planned trip to Kmart for CD’s birthday. She said that neither AB nor CD complained to her about the applicant having offended against them.

The defence case at trial

The applicant’s evidence

The applicant gave evidence. He said that he separated from AB’s and CD’s mother when AB was three. The separation was provoked by an argument about a car. He said that he subsequently became aware that AB was taken to the police concerning a complaint of sexual assault that was alleged against him. He said that nothing came of this complaint. He said that after the separation he then went to live with his mother. He chose to live with his family in order to protect himself against any further false allegation.
He said that he lived at the first property with his mother, father and siblings. He lived in a caravan at the back of that property. He said that when he was at the first property he would see his children on the weekends. The girls would share a bedroom with bunk beds when they came to stay. He said that occasionally AB or CD would share his bed. This was because, sometimes, there was not enough room.
He denied committing any sexual assault of AB at the first property. He said that he moved to the second property in late 2018. The girls were living with their mother until he took out the intervention order. CD had indicated that she didn’t want to see her mother. There was a period in August 2018 when the girls stayed with him for about six weeks. The police became involved when the mother turned up at his property to try and remove the children from his care. It was because of this that the police applied for an intervention order. The order was taken out for the girls’ safety. The mother had slapped CD. It was after this that the court granted the applicant joint custody of the children with the children to live mainly with him. He agreed that, after that, the custody arrangements changed in around April/May 2019 so that the mother had greater access to the children. There was to be a further court hearing in November/December 2019 for review of the custody orders. Family counsellors were to prepare various reports concerning the matter.
The applicant said that he sold the caravan and purchased a campervan for him to live in at the second property. He denied any offending against AB and CD at the second property. He said that CD used to pinch people on the bottom.
The applicant said that the two condoms, each encasing highlighter pens, had been placed by him in the location they were subsequently found by police. This occurred several weeks before he found out what was alleged against him. He said that he had used condoms when his girlfriend came over. He explained the placement of the condoms over the highlighter pens by saying that they were used in that manner for sexual activity with his girlfriend. However, she was not called to give evidence. He said that he spoke to AB about sex education but didn’t go into detail. He said that AB did sex education in grades five and six. AB would speak to him about what she had learned at school.
Just after CD’s birthday, the applicant told CD that if she cleaned her room she would be taken to Kmart. He took CD to Kmart and bought her a present. After Kmart they all returned home. He said that the last time that he saw AB and CD was in August 2019.
During cross examination, it was suggested to the applicant that there were various inconsistencies between his evidence and what he had said in his record of interview with police. Once such inconsistency, put to the applicant, was that in his record of interview — which, as already indicated, took place on 2 October 2019 — the applicant had said that the two condoms encasing the pens had been used by him in order to penetrate his girlfriend anally. This had occurred, so the applicant said in his record of interview, the weekend prior to the interview, namely, on 28 or 29 September 2019. He was asked how AB’s DNA could have been located on one of the condoms given that AB had not been at the campervan since the weekend before 11 September 2019. The applicant answered that ‘they were there before that’.
The applicant agreed that the essence of his defence was that AB and CD had been influenced to tell falsehoods by the mother so that she could improve her position in respect of the custody of the children.

The applicant’s mother’s evidence

The applicant’s mother said that she lived at the first property with her husband and the applicant as well as the applicant’s siblings. The applicant’s children had their own bedroom with bunkbeds. She said that she knew that AB did sex education at school and that one night AB came to her saying that she had learnt about condoms at school. She said that this happened at the second property. She said that neither AB nor CD complained to her about the applicant having offended against them. She said that CD used to pinch people’s bottom.

Defence counsel’s closing address

In closing to the jury, defence counsel argued that AB and CD had told untruths about the applicant’s offending and that they had done so at the behest of their mother. As it was put:
But I’ve spoken to you about the context in which these allegations are made. Their mother is the one who goes to the police. The girls, when they first go to the police, don't want to pursue the matter. They tell the informant. We don’t want to do this. Now, [the mother] says as soon as I mentioned the word arrest, they went into a panic attack. The informant didn’t say that. So they said to the police we don’t wish to proceed. What happens? They go home with Mum and Mum sits them down and allays their fears about being arrested, that’s what she says. I’m suggesting to you she put the fear of hell into them and they decided to proceed.
So as I said, children in these situations will say things for their own survival sake. It’s a dreadful thing to do. It’s dreadful to commit incest with your children. It’s equally dreadful to make up lies about him having committing incest with his daughters and that’s, it’s the latter that’s happening in this case.
Defence counsel attacked AB’s reliability by reference to the many occasions that AB said that the applicant had had anal sex with her. Counsel argued:
Well 30 times that he had anal sex with [AB] and no injuries and no medical report. It beggars belief but there is the second VARE she comes back and says this because she’s gone home and her mum has ramped her up and said look, I don’t think we’ve got enough. You need to go, you know, make up some more. That’s what happened here.

Tendency

The tendency notice

Prior to the commencement of the trial, the prosecution filed a Tendency Notice (‘the notice’) pursuant to s 97(1)(a) of the Evidence Act 2008 (‘the Act’). The notice set out that the prosecution sought to rely on the applicant’s tendency to have a particular state of mind, namely, ‘to have a sexual interest in his biological daughters and willingness to act on it’.
The notice also set out that the prosecution sought to rely on the applicant’s tendency to act in a particular way, namely, to:
(a)Groom the complainant[s’] by increasing physical intimacy and normalising sexualised physical contact between them … ;
(b)      Touch the complainants’ vaginas over their clothing;
(c)      Touch the complainant, [CD’s] bottom over clothing;
(d)     Touch the complainant, [AB’s] vagina under her clothing;
(e)      Putting his penis on the complainant, [AB’s] body;
(f)      Penetrate the complainant, [AB’s] anus with his penis;
(g)      Penetrate the complainant, [AB’s] vagina with his penis.
The notice stipulated that the issues in the case to which tendency reasoning applied were ‘whether the acts constituting each of the alleged offences … occurred’. The notice stated, also, that the tendency identified was ‘relied upon in support of the following charges as making more likely the facts founding those charges’. The notice then made reference to each of the charges.
The notice detailed the evidence that was said to give rise to the tendency, the features of the evidence that was said to establish the tendency and the relevant witnesses who gave this evidence. The notice described, in this regard, the evidence the subject of charges as well as evidence of various uncharged acts. The uncharged act evidence all related to AB and included her evidence that, prior to the commencement of the charged offending, the applicant would touch AB’s vagina over her clothes and put his penis on top of her; it included, also, that AB said that the applicant engaged in anal sex with her on approximately 30 occasions.

Pre-trial argument concerning the notice

Before the empanelment of the jury, the prosecution outlined that it intended to rely on evidence of context and tendency. Insofar as context evidence was concerned this related solely to AB and to the evidence that she gave of having been offended against prior to the charged acts. Insofar as tendency was concerned the prosecution relied on the particular tendency described in the notice and submitted that this tendency was ‘cross admissible’ as between each complainant. The prosecution abandoned any reliance on ‘grooming’. The notice was thus amended by the deletion of subparagraph (a): the part of notice that particularised a contention of grooming.
The prosecution contended that the tendency evidence possessed ‘significant probative value’ in the sense that it demonstrated a ‘pattern of offending’. Insofar as there were obvious differences in the applicant’s alleged offending when it came to the evidence of AB on the one hand and CD on the other, the prosecution relied upon what was said to be common as between the two complainants. Such commonality was said to arise from the applicant’s sexual interest in his biological daughters and his willingness to act upon that interest. The prosecutor submitted:
It’s the pattern first of all of… testing the waters of the touching over clothing, which then evolves to touching under clothing, and then in the case of [AB] then moves on to instances of sexual penetration, and it’s testing to see to what extent the reaction of the complainant.
So we would say it demonstrates a pattern of offending that’s applicable to both [CD] and to [AB] in those circumstances. It’s also a case in both cases it’s the touching of intimate body parts over clothing and then under clothing.
…
And so we would say that this demonstrates an overall pattern of behaviour in terms of acting out of a sexual interest in his biological daughters.

The prosecutor also submitted that the tendency evidence gained in probative value because the defence asserted that the mother had influenced her daughters to make false complaints. The prosecutor submitted that judicial direction would remove any unfair prejudice that the applicant might experience due to the jury being invited to reason along tendency lines. The prosecutor argued that any imbalance in seriousness in the applicant’s offending as between the evidence of AB and CD could be appropriately moderated by judicial direction.
The applicant submitted that it was unrealistic to ask the jury to differentiate between context and tendency evidence in this case. Secondly, the applicant pointed to the danger of AB’s evidence overwhelming the jury when it came to their consideration of CD’s evidence. Thirdly, it was submitted that there was no ‘common feature’ between the versions of AB and CD; there was ‘no single feature that links the two of them’. In answer to that submission, the judge commented:
Well, in response to that, if it’s put: (1), he’s their biological father; (2), the conduct alleged, touching, is common to both; (3), much, if not all, of the conduct occurs in his caravan or his campervan, whatever it is; (4), [they] are approximately of a similar age; (5), the alleged offending occurs over a broadly simultaneous timeframe. By that I mean I appreciate [CD] is limited to one day only, but it’s proximate in time to when it’s said that it’s occurring to [AB]. It’s not a case for example like whatever it was, McPhillamy, where there were ten years before whatever it was between…

The judge’s ruling on tendency

In a careful and considered ruling, the judge ruled that the prosecution was permitted to rely on context evidence in the case of AB. The judge ruled, also, that the prosecution would be permitted to rely on tendency reasoning in a manner that was cross‑admissible as between AB and CD.[11]
[11]DPP v [Franklin (a pseudonym)] (Ruling) (County Court of Victoria, Judge Meredith, 8 September 2022).
After summarising the prosecution case, the judge noted that the defence to the charges would involve a denial of ‘any sexual activity whatsoever’ between the applicant and his children. The judge recognised that the applicant will argue that the complainants’ allegations ‘have been orchestrated by their mother in the context of a Family Law dispute’. Importantly, the judge noted that:
Irrespective of the outcome of these arguments [defence counsel] indicates that he will rely upon the allegations of some 30‑odd occasions of anal penetration of [AB] as being inherently improbable, and use this to cast doubt upon her credibility and/or reliability. Further he does not wish to sever the charges relating to the respective complainants as he seeks to raise a reasonable doubt by arguing both complainants have a common motive to lie, namely they have been put up to this by their mother.[12]
[12]Ibid 29.
The judge considered that in the instance of AB, and the offences that she described, the whole history of the applicant’s offending against her was admissible as context evidence. The judge was cognisant, nevertheless, that the admission of this evidence had the capacity to taint the jury’s consideration of CD’s evidence. Thus the judge observed as follows:
I am of the view that with appropriate directions defence counsel’s concerns can be adequately addressed.[13]
[13]Ibid 30.
The judge considered whether the evidence relied upon by the prosecution gave rise to the nominated tendency as described in the notice and whether that tendency possessed ‘significant probative value’ in respect of proof of facts that were in issue. The judge noted that:
Here, the likely issues to which the tendency will be directed are whether or not the alleged offending occurred, and whether or not a reasonable doubt exists as a result of alleged collusion, and in regard to [AB], improbability.[14]
[14]Ibid 31–2.
The judge took into account that in making the necessary assessment of the evidence relied upon to ground the tendency, it was necessary to ‘assume that the evidence of each complainant is accepted by the jury’. The judge ultimately concluded, after referring in some detail to the High Court’s decision in Hughes v The Queen,[15] that the tendency evidence possessed ‘significant probative value’. His Honour reasoned as follows:
Here, when due regard is had to similarities in the conduct relevant to establish the tendency, significant probative value is established, in my view. These include that both complainants are the [applicant’s] daughters; that he is a father of mature years said to evidence a sexual interest in his young daughters; that both are, broadly speaking, of a similar age; that the alleged offending conduct occurs contemporaneously with each other in the sense that [CD’s] allegations occur whilst the offending conduct is still taking place in regard to [AB]; and both involve allegations of touching, and the alleged offending occurs during access visitations.
…
Here, it is a refined degree of sexual interest alleged, in the sense that, it is a parent and his female biological children. Whilst differences in the acts forming the basis of the alleged tendency and as between the charged offences mean that the probative value of the evidence is not as high as if the acts all were identical, it is not, however, necessary for there to be a close similarity as between the individual acts relied upon as a whole to establish a tendency.
Whilst it cannot be denied that the evidence of sexual activity alleged in regard to [AB] is more frequent and more serious than that alleged in regard to [CD], and that as regards [CD], the evidence of [AB] is likely to be more significantly probative in rebutting any argument of collusion and the establishment of the asserted tendency.
The prosecution case in regard to [AB] will also turn upon a consideration of her credibility and reliability. [CD’s] evidence does, in my view, also possess significant probative value in terms of rebutting any assertions of fabrication or improbability regarding [AB]. I am of the view that [CD’s] evidence possesses significant probative value in terms of a jury’s assessment of the charges referable to [AB], as well as vice versa.[16]
[15](2017) 263 CLR 338; [2017] HCA 20 (‘Hughes’).
[16]DPP v [Franklin (a pseudonym)] (Ruling) (County Court of Victoria, Judge Meredith, 8 September 2022) 32–4.
Then, after close consideration of this Court’s decision in DPP v Pearson (a pseudonym),[17] the judge concluded that in accordance with s 101(2) of the Act the probative value of the tendency evidence substantially outweighed any prejudicial effect it may have on the applicant. As the judge put it:
Here I am of the view that with appropriate judicial direction a jury will properly evaluate the respective evidence of each complainant. Their respective evidence is not complicated, the sexual activity referable to each [is] readily apparent, and this is not a case where there is an overlap of acts in the sense of them involving both complainants together, and a jury can be directed that they can rely on tendency reasoning in regard to the evidence of each complainant in considering a particular complainant’s case.
In short I am of the view that whilst there is a risk that [AB’s] evidence of sexual activity may be given disproportionate weight in assessing [CD’s] charges in light of appropriate judicial direction this risk is not significant and can be ameliorated. It follows that I would allow the prosecution to rely on tendency reasoning as sought in this trial.[18]
[17](2021) 293 A Crim R 179; [2021] VSCA 336 (‘Pearson’).
[18]Ibid 36–7.

The judge’s directions on tendency

As summarised above, AB and CD were both called at the applicant’s trial. Towards the end of the trial the judge delivered his charge to the jury. In respect of tendency evidence, the judge directed the jury as follows.
Now an example of inferential reasoning which is relied upon in this case by the prosecution, is that the prosecution invite you, having regard to the whole of the evidence, except that of the allegations of sexual abuse said to have been made in 2011, to infer that the [applicant] had a tendency to act in a particular way, namely he had a tendency to have a sexual interest in his biological daughters. And if you are satisfied of the existence of this tendency, the prosecution argue you can then find it more likely that he acted in conformity with it and committed each of the charged offences.
So this form of reasoning relies upon the prosecution establishing from the whole of the evidence, that the [applicant] had a tendency to have a sexual interest in his biological daughters and that he acted in conformity with that tendency, in regard to the particular charge which you are considering. Now as the prosecutor has argued, it is alleged that the [applicant] has demonstrated a tendency to act in a particular way, or in other words, a pattern of behaviour has been demonstrated. That tendency or pattern of behaviour is said to be that he was sexually attracted to his daughters and that he would act on this attraction by abusing them in the manner alleged.
In this regard, both complainants are his daughters, all occasions of sexual abuse are said to have occurred during the currency of him having access to them. Both children are proximate in age, namely about eight and eleven. The alleged sexual conduct is said to have occurred proximate in time to each other, namely he is alleged to have abused [CD] whilst he was said to be actively abusing [AB] and aspects of the alleged abuse in regard to each child, concern the touching of them.
Now it is further argued by the prosecution that the [applicant] was willing to act in this way, in conformity with his tendency on the occasions alleged in each of the charges. If you do conclude that he had a tendency to act in this particular way, that is, to be sexually attracted to his daughters in the manner that I have outlined, that conclusion or inference can be used by you to make it more likely that on the occasion alleged in the charge that you are considering, that he was willing to act in conformity with this tendency and to have committed the offence.
To prove this tendency, the prosecution rely on the evidence given by each of the two complainants. The prosecution are entitled to argue that taken together, these acts of sexual misconduct establish the accused having a sexual interest in his daughters and that he was prepared to act on this. The prosecution are entitled to argue that this tendency or interest of the [applicant] in his daughters, makes it more probable that he committed the act alleged in each charge.
Now you are entitled to, and indeed you must look at the whole of the evidence and that of course includes the [applicant’s] evidence in his interview and decide what you do accept. The prosecution argue that if on the evidence you accept, you have reached the inference or conclusion that the [applicant] had a sexual interest in his daughters in the way alleged, then you can use that conclusion to reason that on the particular charged occasion you are considering, he was willing to act on that interest.
Now defence counsel of course argue, well that is all well and good, but you do not get to first base here because you could not exclude the reasonable possibility that this is all a put up job as a result of the children’s mother prevailing upon them. So in that sense, the defence argument is, well there is no tendency here because you cannot be satisfied that this happened in the way alleged.[19]
[19]Emphasis added.
The judge’s directions then turned to the question of context evidence led in respect of the complainant AB. Concluding on the subject of context and tendency, the judge gave the jury the following directions.
So in summary, I have just outlined for you, how you may use the whole of the alleged evidence of sexual activity, aside from that alleged to have occurred in 2011, in order to establish that the [applicant] had a tendency to act in a particular way and that you may use this in regard to the charges dealing with [AB], to establish the context in which the charged offending, referable to that particular complainant occurred.
Now this evidence can only be used in the manner or ways which I have directed you. You cannot use it in any other way. Now this evidence forms only part of the evidence in the trial and you must not decide this case based on prejudice arising from what you have heard about the [applicant] and as I have said, this evidence is led for the limited purpose of helping you understand the circumstances surrounding the commission of the charges relevant to [AB] and to show that the [applicant] had a sexual interest in and was prepared to act on this, in regard to his daughters.
You must still consider each charge separately, even if you do find that the [applicant] has engaged in sexual activity with a complainant. You must assess each of the individual charges on its merits. Even if you were to accept that the [applicant] has a tendency to have a sexual interest in his daughters, you need to consider whether or not he acted in conformity with that sexual interest, on the occasion of the particular charged offence which you are considering.
You are concerned with the particular and precise occasion alleged in each of the seven charges. If you do find that the [applicant] had the tendency alleged by the prosecution, well it may indicate that the particular allegations are true, but remember, you are required to find that each specific charge is proven beyond reasonable doubt, before you can find him guilty.

Ground 1

By ground 1, the applicant contended that the tendency evidence relating to AB did not have ‘significant probative value’ in relation to the charges concerning CD, and that the tendency evidence relating to CD did not have ‘significant probative value’ in relation to the charges concerning AB, and therefore that such evidence should not have been ruled cross‑admissible under s 97(1) of the Act.

Applicant’s submissions on ground 1

The applicant submitted, by reference to dicta of this Court in Harris (a pseudonym) v The Queen,[20] that the tendency expressed in the notice essentially fell foul of circular reasoning because it drew so heavily upon the charged acts themselves.[21] It was submitted that where the offending described by AB was so different to what was described by CD it was important to consider whether there was ‘some feature of or about the offending which links the two together’. The fact that both complainants were the biological children of the applicant was not sufficient to provide the necessary link.
[20][2024] VSCA 43 (‘Harris’).
[21]Ibid [56]–[57] (Niall, Boyce and T Forrest JJA).
The applicant did not dispute that the evidence relied on by the prosecution was sufficient to give rise to the nominated tendency. It was at the next stage that issue was drawn: it was submitted that the tendency was not ‘significantly probative’. The tendency nominated by the prosecution was expressed, it was submitted, at an overly high level of generality; this was so despite the similarities that could be drawn between the evidence of each complainant. The highest that the tendency nominated by the prosecution could realistically be put was simply that the applicant was sexually interested in his biological daughters and had acted on that interest in some non‑specific way. It was submitted that it was not a matter of attacking the judge’s ruling; it was conceded that it was permissible to ‘look beyond’ the notice to the evidence, and that — particularly where there was no issue as to joinder — the issue under ground 1 was to be assessed by reference to the directions that the judge gave to the jury concerning tendency evidence.
The applicant sought to demonstrate the deficiency in the tendency relied upon by comparing it to other cases where tendencies had been held to be ‘significantly probative’. The applicant, in this respect, made reference to the cases of Hughes v The Queen,[22] R v Ford,[23] Danny (a pseudonym) v The Queen,[24] Buchanan (a pseudonym) v The Queen,[25] DPP v Pearson(a pseudonym)[26] and Gustav (a pseudonym) v The Queen.[27]
[22](2017) 263 CLR 338; [2017] HCA 20.
[23](2009) 201 A Crim R 451; [2009] NSWCCA 306.
[24][2018] VSCA 223.
[25][2022] VSCA 130.
[26](2021) 293 A Crim R 179; [2021] VSCA 336.
[27][2023] VSCA 141.
It was accepted, however, that in circumstances where the defence had not taken issue with the joinder of each complainant in the one indictment, the question whether there had been a substantial miscarriage of justice involved analysis of whether the judge’s directions to the jury on tendency were in error.

Respondent’s submissions on ground 1

The respondent submitted that ‘similarity’ or ‘striking similarity’ was not required in order to establish that the tendency evidence be ‘significantly probative’. It was argued that the nominated tendency evidence gained in probative value because the defence had suggested that the mother had influenced the complainants to tell falsehoods about the applicant.
It was submitted that the contention that the applicant had ‘a sexual interest in his biological daughters and a willingness to act on it’ provided the necessary link in respect of each complainant. But there were further links: the offending took place in the applicant’s caravan or campervan; the complainants were relatively close in age when they said that they were offended against; there was a degree of contemporaneity in the offending in the instance of each complainant; and the offending in both cases occurred on access visits.

Consideration of ground 1

89Section 97(1)(b) of the Act provides that evidence of a tendency that a person has (or had) to act in a particular way, or to have a particular state of mind, is not admissible unless the evidence has ‘significant probative value’. The section is in the following terms:
The tendency rule
(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
...
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

Consideration must be given to two interrelated matters. First is the extent to which the evidence relied upon supports the nominated tendency. If the evidence supports this tendency then there must be analysis of the extent to which the proved tendency makes more likely the facts that make up the offence.[28] As recorded above, in this case it was not disputed that the evidence supported the nominated tendency. The applicant’s contention was, rather, that the tendency evidence did not possess ‘significant probative value’.
[28]Hughes (2017) 263 CLR 338, 356 [41] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20. See, also, McPhillamy v The Queen (2018) 92 ALJR 1045, 1050 [26] (Kiefel CJ, Bell, Keane and Nettle JJ), 1052 [35]–[36] (Edelman J); [2018] HCA 52 (‘McPhillamy’) and TL v The King (2022) 275 CLR 83, 96 [31] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ); [2022] HCA 35 (‘TL’).
Tendency evidence will have ‘significant probative value’ if it could rationally affect the assessment of the probability of a fact in issue to a ‘significant extent’;[29] or if it could make a fact in issue ‘significantly more likely’.[30] Tendency evidence is likely to have a high degree of probative value where the evidence by itself, or taken together with other evidence, strongly supports proof of a tendency and the tendency strongly supports the proof of a fact that makes up the offence charged.[31] To possess significant probative value, the evidence must be ‘important’ or ‘of consequence’ to the assessment of the probability of a fact in issue.[32] It is not necessary that the evidence have this effect by itself; it is sufficient if the evidence has this effect when taken together with other evidence.[33]
[29]Hughes (2017) 263 CLR 338, 348–349, [16], 356 [40] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20.
[30]Ibid 356 [40] (Kiefel CJ, Bell, Keane and Edelman JJ).
[31]Ibid 356–357 [41] .
[32]TL (2022) 275 CLR 83, 95 [28] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ); [2022] HCA 35.
[33]Hughes (2017) 263 CLR 338, 356 [40], 362 [61] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20; TL (2022) 275 CLR 83, 95 [28] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ); [2022] HCA 20.

While tendency evidence may exhibit some similarity with facts that are in issue, the admission of tendency evidence is not conditioned upon a court’s assessment of the ‘operative features of similarity with the conduct in issue’.[34] A need for ‘close similarity’ may arise, however, in a case where identity is in issue, and where the identity of the perpetrator is ‘at large’, and where there is little or no other evidence of identity apart from the tendency evidence.[35] Similarity is relevant to, but ‘not determinative of’, probative value.[36]
[34]Hughes (2017) 263 CLR 338, 355–6 [39] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20. It ought not be assumed that ‘close similarity’ is required: TL (2022) 275 CLR 83, 96 [30] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ); [2022] HCA 35.
[35]TL (2022) 275 CLR 83, 96 [30] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ); [2022] HCA 35.
[36]Ibid 95 [29].
Tendency evidence that is pitched at a high level of generality may establish no more than relevance, whereas the probative value of tendency evidence expressed at a greater level of particularity will more likely be significant.[37]
[37]Hughes (2017) 263 CLR 338, 363 [64] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20; TL (2022) 275 CLR 83, 95–96 [29] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ); [2022] HCA 35.
Tendency evidence is likely to be ‘influential’ in determining whether there exists a reasonable possibility that a complainant has ‘misconstrued innocent conduct or fabricated his or her account’.[38]
[38]Hughes (2017) 263 CLR 338, 356 [40] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20.
Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value.[39]
[39]McPhillamy (2018) 92 ALJR 1045, 1050 [27] (Kiefel CJ, Bell, Keane and Nettle JJ); [2018] HCA 52.
In contradistinction to a single complainant case,[40] in a multi‑complainant case of alleged sexual offending, where the issue is whether the fact that an accused committed sexual acts upon one complainant is ‘significantly probative’ of him having committed sexual offending against another, ‘there must ordinarily be some feature of or about the offending which links the two together’.[41]
[T]he mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against the other complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.[42]
[40]R v Bauer (a pseudonym) (2018) 266 CLR 56, 88 [60] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2018] HCA 40 (‘Bauer’).
[41]Ibid 87 [58] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[42]Bauer (2018) 266 CLR 56, 87 [58] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2018] HCA 40; See, also, McPhillamy (2018) 92 ALJR 1045, 1051 [31] (Kiefel CJ, Bell, Keane and Nettle JJ); [2018] HCA 52.
In assessing whether tendency evidence possesses ‘significant probative value’ the evidence must be taken at its highest[43] and this inquiry is productive of only ‘one correct answer’.[44] The task that confronts the court is ‘open textured’ and ‘evaluative’ and is undertaken:
by application of the same well‑known principles of logic and human experience as are used in an assessment of whether evidence is relevant.[45]
[43]Bauer (2018) 266 CLR 56, 91–2 [69]–[70] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2018] HCA 40; TL (2022) 275 CLR 83, 95 [28] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ); [2022] HCA 35.
[44]Bauer (2018) 266 CLR 56, 88–9 [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2018] HCA 40.
[45]Hughes (2017) 263 CLR 338, 357 [42] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20.
A determination of whether a trial miscarried on account of the admission of tendency evidence is concerned with ‘the use made of the evidence at the trial’ regardless of the reasons that informed the trial judge’s decision to admit the tendency evidence in the first place.[46]
[46]McPhillamy (2018) 92 ALJR 1045, 1048 [11] (Kiefel CJ, Bell, Keane and Nettle JJ); [2018] HCA 52.
What one notices about the judge’s directions to the jury, as opposed to the terms of the notice, is that the directions were not couched in terms of the applicant having a tendency to act upon his sexual interest in his biological daughters in any specific or particular way beyond what could be said to be common to all of the offending or could link the evidence of AB and CD. The jury were not told that they could find, for instance, that there was a tendency on the applicant’s part, common to both complainants, to sexually penetrate them. In this sense although the applicant initially attacked the notice on the basis of circularity, this particular criticism — as I understood it — did not carry through to the directions. Consistent with the applicant’s concession that the evidence gave rise to ‘common features’ or a ‘link’ between the two complainants which grounded a relevant tendency, the point made by the applicant was that these ‘common features’ or ‘links’ were essentially too general, and thus lacking in sufficient particularity, in order to be ‘significantly probative’. This was so, also, in light of the obvious differences that existed between what each complainant described.
Although not mentioned by the judge in his directions, but conceded by the applicant to be at least relevant in considering whether there existed a sufficient ‘common feature’ in respect of, or ‘link’ between, each complainant, was the fact that the offending occurred in either the applicant’s caravan or campervan, that is to say, the location where the applicant usually slept.
Applying ‘logic’ and ‘human experience’, the issue is whether the common features or links that were able to be drawn between the evidence of each complainant, as isolated and described by the judge to the jury, gave rise to evidence of a tendency on the applicant’s part that was ‘significantly probative’ of the assessment of the probability of facts that were in issue at trial.
Applying the legislative test in light of the relevant principles enunciated by the High Court expressed above, in the end I am persuaded that there was enough that was common, of or about the offending, in the instance of each complainant that was sufficient to link the evidence of AB and CD together so as to make the tendency relied upon by the prosecution ‘significantly probative’ of the facts making up the offences. In particular:
(a)both complainants were the applicant’s biological daughters, and it is unusual for a man to have a sexual interest in his biological daughters and to demonstrate a willingness to act on that interest, as the applicant accepted in oral argument;
(b)all occasions of sexual abuse were said to have taken place in the applicant’s isolated sleeping quarters in the caravan or campervan parked on his parents’ property; and
(c)both girls were proximate in age, namely eight and 11.
(d)Further, there was some contemporaneity in the offending in the case of each complainant, in that the alleged offending against CD was said to have occurred during the longer period when the applicant was alleged to be offending against AB. In that sense, the case can be distinguished from MacPhillamy, where there was a 10 year interval between the tendency evidence and the alleged offending.
(e)Finally, although there were significant differences in some of the offending alleged in relation to AB, as compared with the offending alleged in relation to CD, there was a similarity in relation to some of the allegations, namely touching the complainants’ vaginas over their clothing.
In light of these matters the judge was correct to conclude that the evidence of AB and CD, which the applicant accepted proved the tendency in question, was significantly probative of the facts making up the offences and to admit the evidence for that purpose. His Honour’s directions were not erroneous on this issue.

Ground 2

By ground 2 the applicant contended that AB’s evidence was inadmissible as tendency evidence in relation to the counts concerning CD by reason of s 101(2) of the Criminal Procedure Act because the probative value of that evidence did not substantially outweigh its prejudicial effect.

The applicant’s submissions on ground 2

Under ground 2 the applicant emphasised the danger of disproportionate weight being given by the jury to the evidence of AB when it came to the jury’s consideration of CD’s evidence. This danger arose from the vastly more serious nature of AB’s allegations made against the applicant. The applicant focused upon this Court’s decision in Pearson. The applicant submitted that the difference in gravity between the evidence of AB and CD was ‘stark’. It was put that the risk of unfair prejudice that tainted the jury’s consideration of CD’s evidence could not be remedied by means of judicial direction. He also submitted that the directions that were given by the trial judge were ineffectual to deal with the disparity between the alleged offending in relation to AB and the alleged offending in relation to CD. He submitted that ‘the admission of [AB’s] tendency evidence made the applicant’s conviction on the counts involving [CD] a foregone conclusion’.

The respondent’s submissions on ground 2

Under this ground the respondent relied on the general principle expressed in Pearson, namely, that ‘it is not the case that evidence of more grave offending is never admissible as tendency evidence in relation to charges involving less grave offending’.[47]
[47]Pearson (2021) 293 A Crim R 179, 203 [98] (T Forrest and Walker JJA) (citation omitted); [2021] VSCA 336.
The respondent was unable to point to any specific direction given by the trial judge which warned the jury that when considering CD’s evidence in light of the tendency evidence they were to take particular care not to become overwhelmed by the comparative gravity of what AB had said about what the applicant had done to her. But the respondent submitted that the very terms of the tendency direction in effect carried with it the substance of such a warning. This was, it was submitted, because the tendency direction in its terms appealed only to what was able to link the evidence of each complainant together and did not refer to the particularity of acts that AB described such as the alleged acts of anal penetration.
The respondent submitted that, in any event, the judge directed the jury that they had to consider each charge separately and only find a charge proved if they were satisfied that the particular act making up the charge had occurred. The jury were warned against reasoning that simply because they found that the applicant was guilty of one charge he was thereby guilty of any other. The jury were told to remain dispassionate and not allow feelings of bias or prejudice to influence their judgment. Moreover, the jury were instructed as to the precise use that they could make of the tendency evidence and told that there was no other use to which this evidence could be put.

Consideration of ground 2

For evidence to be admissible as tendency evidence, that evidence must not only clear the threshold set by s 97(1)(b) of the Act. The evidence must also satisfy the test set out in s 101(2). The probative value of the evidence must substantially outweigh any prejudicial effect that it may have. Section 101(2) is expressed in the following terms:
101Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
...
(2)Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
Yet the applicant’s ground 2 was somewhat confined. It complained only that AB’s evidence was inadmissible as tendency evidence when it came to the jury’s consideration of the charges involving CD. This was so because, in accordance with s 101(2) of the Act, the probative value of AB’s evidence, as tendency evidence, did not substantially outweigh any prejudicial effect that it may have on the applicant. It was not ultimately submitted, and nor did ground 2 allege, that s 101(2) meant that CD’s evidence was inadmissible as tendency evidence when it came to the charges where AB was the complainant.[48]
[48]The applicant in chief submitted orally that the prejudicial effect of AB’s evidence also infected the jury’s consideration of the charges where AB was the complainant, but in reply the applicant sought to ‘walk back’ from that position.
During the pre‑trial hearing, the imbalance between AB’s and CD’s evidence was appropriately recognised. As related above, AB described being sexually penetrated, both vaginally and — on numerous occasions — anally, by the applicant. CD complained of being sexually touched twice on one occasion. By dint of this imbalance, and the consequent fear that AB’s evidence might unfairly overwhelm the jury’s ability properly to consider the evidence of CD, the judge noted in his ruling that he would give ‘appropriate’ judicial directions.
It is unfair prejudice with which s 101(2) of the Act is concerned. In Pearson this Court said:
As the High Court observed in Bauer, although, unlike s 137, s 101(2) does not include the word ‘unfairly’ before ‘prejudicial’, the provision is concerned with the same idea: harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way.[49]
[49]Pearson (2021) 293 A Crim R 179, 197 [67] (T Forrest and Walker JJA) (citations omitted); [2021] VSCA 336.
Whether the risk that AB’s evidence might overwhelm the jury’s consideration of CD’s evidence was an unfair one cannot be examined free from an appreciation of the stance that was adopted by the defence at trial, nor an understanding of the directions that were given by the judge at trial which were calculated to lessen the risk of unfair prejudicial effect falling upon the applicant.
As is recorded in the trial judge’s ruling,[50] it is apparent that defence counsel would not have opposed the joinder of each complainant in the one indictment even had he succeeded in persuading the judge that the tendency evidence was not cross‑admissible. Moreover, the ruling betrays that defence counsel saw a forensic advantage in AB giving evidence — at a joint trial — of the applicant having committed upon AB perhaps the worst acts that she described, namely, the 30 or so uncharged acts of anal intercourse. The relevant portions of defence counsel’s closing that are extracted above reveal that defence counsel did seek to impugn AB’s reliability by reference to the 30 or so alleged acts of anal intercourse that she described.[51] It would be expected, however, that, had defence counsel succeeded in having the judge rule AB’s evidence inadmissible as tendency evidence in relation to the counts concerning CD, the judge would instead have given an anti‑tendency direction in respect of the use that could be made of AB’s evidence in relation to those counts.
[50]See above at paragraph 75.
[51]See above at paragraph 65.
AB’s evidence of the applicant having penetrated her (including anally) in part provided the evidential foundation for the tendency that the jury were asked to consider. But the actual tendency relied upon by the prosecution was not a tendency on the applicant’s part to engage in acts of penetration (including anal penetration). There was not a common feature of, or link between, AB and CD’s evidence such that it could be said ‘of or about’ the applicant’s offending that he had engaged in penetrative acts with both his daughters.
As to the ‘appropriate’ protective directions that the judge considered in his ruling that he would give concerning the imbalance between the evidence of AB and CD, it is not apparent precisely what his Honour had in mind.
As the respondent submitted, the judge did give the jury directions that went some distance towards protecting the applicant from unfair prejudice. A separate trials direction was given as well as a direction that warned the jury that even if the jury were to find the tendency established, they were to assess each individual charge on its merits. The jury were directed that they were concerned with the particular and precise occasion alleged in each charge and were required to find each specific charge proven beyond reasonable doubt prior to finding the applicant guilty.
The judge told the jury to ignore all feelings of sympathy or prejudice. They were to remain dispassionate. Indeed, insofar as the context and tendency evidence adduced at trial was concerned, the judge warned the jury about the limited purposes of this evidence. The judge told the jury that this evidence could be used for those purposes only. The tendency was precisely described[52] and its use circumscribed.[53] As already noted, the jury were not invited to reason that the applicant possessed a tendency to engage in penetrative acts. The judge said to the jury:
[T]his [tendency] evidence can only be used in the manner or ways which I have directed you. You cannot use it in any other way.
[52]See above at paragraph 80.
[53]See above, paragraphs 80 and 81.
However, the judge might have given, but did not give, the sort of direction that this Court considered was required in Pearson — a case like here, where there was an imbalance in gravity between the evidence of complainants that were included on the one indictment. [54] Appropriately tailored to the circumstances of the present case, such a direction would have been one ‘where the jury [are] directed that they can rely on tendency reasoning, but must ensure that they do not permit… [AB’s]… evidence to improperly influence their decision in relation to’ the charges where CD is the complainant.[55] The Crown accepted that no directions expressly addressed to this imbalance were given.
[54]Pearson was a case, however, where defence sought severance of the multi‑complainant indictment due to the evidential imbalance.
[55]Pearson (2021) 293 A Crim R 179, 203 [97] (T Forrest and Walker JJA); [2021] VSCA 336. Here no direction warning against ‘improper influence’ was sought; nor was any exception taken to the judge’s charge based on any failure to give such a direction. It may be granted that the applicant’s position as to the cross‑admissibility of AB’s evidence was that no judicial direction could sufficiently have remedied the risk of unfair prejudicial effect. But if a direction such as the one considered necessary in Pearson might have been thought to have assisted in removal of that risk, the fact that this direction was not sought does suggest that counsel — in the end — considered that what the judge had told the jury constituted sufficient protection of his client.
In the end, however, and with great respect to the trial judge, I am unable to conclude that the tendency evidence — insofar as it included the evidence of AB — substantially outweighed the unfair prejudicial effect that it may have on the applicant when it came to the jury’s assessment of the prosecution case concerning CD. The conduct alleged in relation to AB was so abhorrent, and so much more serious than, the conduct alleged in relation to CD that it could have caused the jury to reason, improperly, that, if the applicant had committed the offences against AB, he must also be guilty of committing the offences alleged in relation to CD. That is, the admissibility of AB’s evidence as tendency evidence was not only prejudicial to the applicant, it had the potential to be unfairly prejudicial in the instance of CD.

The applicant could, and perhaps should, have sought a protective direction of the kind contemplated in Pearson to ameliorate the risk of unfair prejudice when it came to the jury’s use of AB’s evidence as tendency evidence in their consideration of the charges where CD was the complainant. But the imbalance in severity between what AB described, as opposed to the evidence of CD, was so extreme that that even had such a direction been given it could not, in my view, have sufficiently ameliorated the risk of unfair prejudice to the applicant when it came to the jury’s consideration of the charges involving CD.
I would therefore uphold ground 2. The jury were invited to employ tendency reasoning in respect of the charges where CD was the complainant and it is, in my view, impossible not to conclude that there has been a substantial miscarriage of justice when it comes to the verdicts on those charges. The applicant’s convictions on those charges must therefore be quashed.[56]
[56]As recorded above (footnote 48), the applicant initially sought to suggest that the consequence of this conclusion would be that his convictions on all charges must be quashed. However, at the conclusion of the hearing counsel for the applicant informed the Court that, in light of the scope of ground 2 (as to which no application to amend was made), the applicant no longer pressed that submission.
Ground 3
By ground 3, the applicant contended that the trial judge failed to direct the jury as to which of the tendency evidence supported which charge, and as to the use that the jury could make of the tendency evidence.

Applicant’s submissions on ground 3

Under ground 3, the applicant submitted that the directions given by the trial judge concerning tendency evidence were inadequate in that they failed sufficiently, or at all, to link the use of the tendency evidence to the issues in the case. It was submitted that the tendency directions given in the present case suffered from a vice similar to the problem identified by Nettle J in the directions that were given at trial in Hughes. Adopting Nettle J’s phraseology, it was submitted that in this case the tendency directions:
failed to engage with the task of explaining to the jury, in relation to each count, in terms which the jury would have been likely to understand, what use could and could not be made of each witness’s evidence in relation to the proof of each count.[57]
[57]Hughes (2017) 263 CLR 338, 402 [171] (Nettle J); [2017] HCA 20.
It was accepted that there had been no relevant exception to the judge’s directions; it was conceded, also, that no direction, such as was now submitted ought to have been given, had been sought pursuant to s 12 of the Jury Directions Act 2015.

Respondent’s submissions on ground 3

Under this ground the respondent submitted that the directions given by the trial judge were not erroneous. It was submitted that the directions that were given were standard in both form and substance. Indeed, it was put that the directions on tendency that were given in the present case complied fully with the requirements considered necessary by the High Court in cases such as Roder.[58]

Consideration of ground 3

[58](2024) 98 ALJR 644; [2024] HCA 15.

The essence of the applicant’s case under this ground concerns the level of specificity required of a trial judge’s directions to a jury on tendency in the instance of a multi‑complainant indictment in circumstances where the tendency evidence is cross‑admissible. This ground concerns how a judge is required to charge on tendency evidence assuming that it is open to a jury to conclude the existence of the tendency in the first place.
Under this ground of appeal the applicant impugns the judge’s instructions to the jury concerning how, if the jury found the identified tendency established, that tendency might be used in proof of each offence with which the applicant was charged. As appears in the extract set out above,[59] the judge first identified the relevant tendency — namely, to be ‘sexually attracted to his daughters’ and to ‘act on this attraction by abusing them in the manner alleged’. His Honour then told the jury that if they concluded that the tendency was established, it could be ‘used by [the jury] to make it more likely that on the occasion alleged in the charge that [the jury] are considering, that [the applicant] was willing to act in conformity with this tendency and to have committed the offence.’ The judge told the jury that ‘the prosecution are entitled to argue that this tendency or interest of the [applicant] in his daughters, makes it more probable that he committed the act alleged in each charge’ and that the jury ‘can use that conclusion to reason that on the particular charged occasion you are considering, [the applicant] was willing to act on that interest’. There was no complaint (either at trial or on the appeal) about the manner in which the judge identified the tendency, and on the appeal the applicant accepted that the evidence was capable of proving that tendency.
[59]See paragraphs 80–81 above.
As can be seen, having first identified the tendency that the jury were being invited by the prosecution to conclude was in existence, the judge described to the jury how it was that they were to use that tendency in respect of any particular charge that they were considering. In my view what the judge said in this respect was sufficient to bring home to the jury how the tendency evidence was to be used. Having identified the alleged tendency it would, in my view, have been unnecessarily and unduly repetitive to have repeated this designation, again and again, in reference to every single individual charge (as the applicant submits ought to have occurred).
To the extent that the applicant relied, under this ground of appeal, on the dicta of Nettle J in Hughes,[60] it must first be recognised that his Honour was in dissent in Hughes. It is not apparent that the criticisms levelled by Nettle J at the directions given at trial in Hughes found favour with the majority justices in that case.[61] It may well be, it seems, that Nettle J’s criticisms of the trial directions in Hughes are a reflection of his Honour’s opinion that the particular tendency relied upon in Hughes was not ‘significantly probative’ in respect of all of the counts that were included on the Hughes indictment.
[60]See paragraph 124 above.
[61](2017) 263 CLR 338 (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20.
To that extent, it is perhaps productive to consider the particular dicta of Nettle J relied upon by the applicant in the context of what immediately followed that dicta as revealed in his Honour’s reasons. The criticism made by Nettle J of the trial directions concerning tendency evidence that were given in Hughes were that those directions:
failed to engage with the task of explaining to the jury, in relation each count, in terms which the jury would have been likely to understand, what use could and could not be made of each witness’s evidence in relation to the proof of each count.[62]
[62]Ibid 402 [171] (Nettle J).
It was not sufficient, according to Nettle J, that the trial judge had simply told the jury that they must be ‘concerned with the particular and precise occasion alleged by each of the complainants in relation to each count’.[63] But his Honour located a further difficulty with the directions. This further problem was to suggest that even had the judge told the jury correctly which part of each witness’s evidence was admissible in proof of each particular count, ‘it was highly likely that the jury would have been incapable of adhering to the directions’.[64] As Nettle J observed:
That difficulty arises from the inclusion on one indictment of a plethora of counts involving disparate sexual offences against disparate classes of complainants in disparate circumstances, with the consequence that, while some of the evidence admissible in relation to some counts was also admissible in relation to some other counts, a considerable percentage of it was not. As a result, even if the jury had been properly directed as to which parts of the evidence were admissible in relation to each count and which parts were not, the process of reasoning conscientiously in accordance with those directions would have been so complex as to result in a high probability of the jury simply dealing with all of the evidence as a job lot relevant to each and every count; a process which in this case was likely to result in a conclusion that the appellant was, generally, a sexual deviant.[65]
[63]Ibid 402 [171] (citations omitted).
[64]Ibid 402–3 [172].
[65]Ibid (citations omitted).
In a case, unlike the present, where one identified tendency was not ‘significantly probative’ in respect of all charges included on an indictment, but where the evidence of certain complainants was cross‑admissible as tendency in respect of only a limited number of other complainants, then the kind of specificity or particularity described by Nettle J in Hughes may well be justified.[66] But the present was not this type of case. In this case there was one nominated tendency, evidence of which was relied upon in relation to all the charges. That is, this case proceeded on the basis that that tendency — erroneously, as I have decided — was admissible in respect of all charges that were included on the indictment (even though this was a multi‑complainant indictment).
[66]Although in such a case, as Nettle J reasoned, severance may be the safer option: Hughes (2017) 263 CLR 338, 402–3 [172] (Nettle J); [2017] HCA 20.
In respect of directions ordinarily to be given to juries about tendency evidence in the instance of a single complainant case involving sexual offences, the High Court in Bauer observed that:
Where evidence is admitted on that basis, the trial judge should direct the jury that the Crown argues that the evidence establishes that the accused had a sexual interest in the complainant and a tendency to act upon it which the Crown contends makes it more likely that the accused committed the charged offence or offences. If the Crown also relies on the evidence as putting the charged offence or offences in context in some other identified fashion or respects, the trial judge should further direct the jury that the Crown contends that the evidence serves also to put the charged offence or offences in context and identify the manner or respects in which the Crown contends that it does so. The trial judge should stress that the evidence of uncharged acts has been admitted for those purposes and, if the jury are persuaded by it, that it is open to the jury to use the evidence in those ways, although no other. The trial judge should further stress that it is not enough, however, to convict the accused that the jury may be satisfied of the commission of the uncharged acts or that they establish that the accused had a sexual interest in the complainant on which the accused had acted in the past; it remains that the jury cannot find the accused guilty of any charged offence unless upon their consideration of all of the evidence relevant to the charge they are satisfied of the accused’s guilt of that offence beyond reasonable doubt.[67]
[67]Bauer (2018) 266 CLR 56, 97–8 [86] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (emphasis added); [2018] HCA 40.
The judge’s tendency directions in this case appear to have been closely modelled on this dicta. And it may legitimately be asked: why, in a multi‑complainant case of sexual offending where a single tendency is relied on that is admissible on all charges, the directions to the jury should in substance be any different from those described by the High Court in Bauer?
Further light is shed on the appropriate approach to tendency directions by the more recent decision of the High Court in Roder. That was a case where it was alleged that the accused had committed sexual offending upon the two children of the accused’s former domestic partner. It was conceded in Roder that, in accordance with the tendency notice that had been filed in that case, both the charged and uncharged evidence of each child was cross‑admissible as tendency evidence. The principal question raised in Roder concerned, like the applicant’s ground 3, how the jury were to be instructed concerning the tendency evidence. The issue in Roder was whether the jury were required to be instructed that in order to conclude or infer the nominated tendency from charged acts, those acts had to be established beyond reasonable doubt. The trial judge had ruled that the jury did need to be directed in this fashion. The High Court held to the contrary.
But the High Court in Roder was required to consider an alternative submission. This submission was that the jury were also required to be directed that when considering an accused’s guilt on each particular charge on the indictment ‘they could not use the direct evidence of the corresponding charged act as part of the body of evidence relied on by the prosecution to support the alleged tendency’. The High Court rejected this submission on the basis that such a direction would make the ‘jury’s task vastly more difficult’.[68] In dealing with the alternative submission, the Court reflected upon the nature of tendency directions that ordinarily ought be given in multi‑complainant cases of alleged sexual offending. In words that seem directly against the applicant’s case under ground 3, the Court observed that:
In the ordinary course, the jury receive a separate tendency direction and then directions emphasising the necessity to be satisfied of each element of each offence charged beyond reasonable doubt.[69]
…
It follows that, if, instead of giving a single separate tendency direction, a jury were directed that they had to reconsider whether an accused possessed the alleged tendency at each point in their deliberations when addressing whether the accused was guilty of a particular charge, then the jury would still consider the same body of evidence in determining whether the tendency was established with the same result. Contrary to the guiding principles of the Jury Directions Act, this approach would make the summing up repetitive and confusing. It would also carry a much greater danger of undermining the jury’s understanding of the necessity to establish the elements of the offence to the requisite criminal standard than giving the jury a single separate tendency direction. The means to address that danger with a single separate tendency direction has already been noted.[70]
[68]Roder (2024) 98 ALJR 644, [63] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot & Beech‑Jones JJ); [2024] HCA 15.
[69]Ibid.
[70]Ibid 653 [36] (citation omitted).
Then, in considering the ‘content of directions’ to be given to the jury in a case where tendency evidence is relied upon, the Court stated further:
As this case concerns Victoria, the primary point of reference for determining the content of the appropriate directions in relation to tendency evidence is the Jury Directions Act. That said, it follows from the nature of tendency evidence that, in a case where the prosecution relies on both uncharged and charged acts to establish an alleged tendency of the kind under consideration here, a single separate tendency direction should ordinarily be given. Such a direction should not direct or invite the jury to make findings in respect of charged conduct, but instead should indicate the evidence relied on to support the alleged tendency, direct the jury to consider whether they are satisfied of the alleged tendency and then advise the jury that, if they are so satisfied, they can use that tendency in considering whether it is more likely that the accused committed the specific offences with which he or she is charged. Careful directions should be given to the jury as to the requisite onus and standard of proof as well as to the contents of the elements of the offence and the need for separate consideration of each charge.[71]
[71]Ibid 653 [37] (emphasis added) (citations omitted).
It may be accepted that the submission with which their Honours were concerned in Roder was different to the submission that the applicant makes in the present case. Nevertheless, what is apparent from the dicta in Roder extracted above is that in a case of sexual offending on a multi‑complainant indictment, where one single tendency is relied upon as admissible on all charges, a single, separate direction concerning tendency is generally appropriate. In terms of the need to relate to the tendency to any particular charge that the jury are considering, essentially the directions that were given in the present case were the appropriate directions. Thus, assuming complete cross‑admissibility for the purposes of this ground of appeal, I am not persuaded that the trial judge failed adequately to relate the tendency evidence to each of the charges in this case.
Finally, I note that it is not apparent that anyone at trial considered that the judge’s directions were deficient in the manner now described. Nor was any direction in the nature of those contemplated by Nettle J in Hughes sought at trial pursuant to the terms of the Jury Directions Act 2015.[72]
[72]See Part 3, ss 9–16.
Ground 3 is, in my view, without substance.

Conclusion

Given that I have upheld the applicant’s ground 2, the application for leave to appeal against conviction must be granted. The appeal must be allowed in part and the applicant re‑sentenced.
I would quash the convictions on charges 5 and 6 and set aside the sentences imposed on those charges.[73] I would otherwise confirm the sentences imposed on charges 1, 2, the alternative to charge 3 (attempted incest), 4 and 7. I would confirm that the sentence imposed on charge 4 form the base sentence; and I would confirm the orders for cumulation made in respect of charges 1, 3 (alternative) and 7. This produces a total‑effective sentence of 13 years and six months’ imprisonment. I would set aside the non‑parole period ordered in the County Court and, in lieu, direct that the applicant serve eight years and four months before becoming eligible for parole.
[73]See footnotes 48 and 56 above.
I would order that there be a new trial on charges 5 and 6.
I would confirm the directions made in the County Court pursuant to Part 2A of the Sentencing Act 1991, namely, that the applicant be sentenced as a serious sexual offender on the alternative to charge 3 (attempted incest) and on charges 4 and 7 and I would confirm the County Court’s notation to that effect made pursuant to s 6F of that Act. I would confirm the declaration made in the County Court that pursuant to s 34 of the Sex Offenders Registration Act 2004 the length of the applicant’s reporting period is life.
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[2024] VSCA 213

19 September 2024