KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
ROBERT LINDSAY HUGHES APPELLANT
AND
THE QUEEN RESPONDENT
Hughes v The Queen
[2017] HCA 20
14 June 2017
S226/2016
ORDER
Appeal dismissed.
On appeal from the Supreme Court of New South Wales
Representation
P R Boulten SC with K J Edwards for the appellant (instructed by Greg Walsh & Co)
L A Babb SC with K N Shead SC and B K Baker for the respondent (instructed by Solicitor for Public Prosecutions (NSW))
G J C Silbert QC and N Rogers SC with B L Sonnet for the Director of Public Prosecutions (Vic), intervening (instructed by Solicitor for Public Prosecutions (Vic))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Hughes v The Queen
Evidence – Admissibility – Tendency evidence – Evidence Act1995 (NSW), s 97(1)(b) – Where appellant charged with 11 sexual offences against five female children aged under 16 years – Where prosecution permitted to adduce evidence of each complainant and other witnesses as tendency evidence – Where alleged tendencies identified as having sexual interest in underage girls and as using relationships to gain access to underage girls in order to engage in sexual activities with them – Whether tendency evidence required to display features of similarity with facts in issue in order to have "significant probative value" – Whether tendency evidence had "significant probative value".
Words and phrases – "modus operandi", "pattern of conduct", "probative value", "significant probative value", "tendency evidence", "underlying unity".
KIEFEL CJ, BELL, KEANE AND EDELMAN JJ. Section 97(1)(b) of the Evidence Act 1995 (NSW) excludes evidence of the character, reputation or conduct of a person to prove that the person has or had a tendency to act in a particular way or to have a particular state of mind ("tendency evidence") unless the court thinks that the tendency evidence will have "significant probative value". The provision is enacted in the same terms in the uniform evidence legislation of the Commonwealth, Tasmania, Victoria, the Australian Capital Territory and the Northern Territory ("the Evidence Act")[1]. The issue in the appeal is the extent to which, if at all, evidence of conduct adduced to prove a tendency is required to display features of similarity with the facts in issue before it can be assessed as having "significant probative value".
The issue arises in the familiar context of the trial of counts charging an accused with sexual offences against several children at which the prosecution seeks to adduce the evidence of each complainant in support of its case on each count. The issue reduces in this case to the question of whether proof that a man of mature years has a sexual interest in female children aged under 16…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Hughes v The Queen [2017] HCA 20
Case
[2017] HCA 20
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the appellant, who was charged with 11 sexual offences against five female children. The prosecution had been permitted to adduce evidence from each complainant and other witnesses as tendency evidence, identifying the appellant's alleged tendencies as having a sexual interest in underage girls and using relationships to gain access to them for sexual activities.
The central legal issue before the Court was whether tendency evidence, as defined by section 97(1)(b) of the *Evidence Act 1995* (NSW), required features of similarity with the facts in issue to possess "significant probative value," and if the evidence presented in this case indeed possessed such value. The Court was required to determine the proper application of the statutory test for the admissibility of tendency evidence, which focuses on whether the evidence could rationally affect the assessment of the probability of a fact in issue to a significant extent.
The Court reasoned that the focus of the appellant's submission on dissimilarity between the alleged acts and circumstances overlooked the specific tendency the evidence was adduced to prove. The tendency evidence, when viewed as a whole, demonstrated a pattern of conduct involving a willingness to act on a sexual interest in underage girls despite a significant risk of detection. This disinhibited disregard for the risk of discovery was considered unusual and contributed to the evidence's significant probative value, even if it did not fit a strict definition of a "modus operandi" or "pattern of conduct" due to the opportunistic nature of the alleged offences. The Court found that the Court of Criminal Appeal had not erred in concluding that the tendency evidence had significant probative value.
Consequently, the appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
For the reasons to be given, the Victorian Director's submission, that Velkoski evinces an unduly restrictive approach to the admission of tendency evidence, is accepted. The Court of Criminal Appeal's conclusion that the tendency evidence adduced at the appellant's trial had significant probative value in relation to proof of each count in the indictment was not attended by error and it follows that the appeal must be dismissed. The scheme of the Evidence Act governing tendency evidence Subject to the exclusionary rules in Pts 3.2 to 3.11 of the Evidence Act, evidence that is relevant in a proceeding is admissible in the proceeding[9]. Evidence is relevant if it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue[10]. Part 3.6 governs the admission of evidence of tendency and coincidence. At common law, this evidence is governed by rules concerning propensity and similar fact evidence. The intention of the Evidence Act to make substantial changes to the common law rules[11] is evident in the provision for the admission of tendency and coincidence evidence.[9]Evidence Act, s 56(1). [10]Evidence Act, s 55(1). [11]Papakosmas v The Queen (1999) 196 CLR 297 at 302 [10]; [1999] HCA 37; IMM v The Queen (2016) 257 CLR 300 at 311 [35] per French CJ, Kiefel, Bell and Keane J; [2016] HCA 14; R v Ellis (2003) 58 NSWLR 700 at 716-717 [78]. That provision in respect of tendency evidence is in s 97(1): "Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value." That provision in respect of coincidence evidence is in s 98(1):"Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value." The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue[12]. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent[13]. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. The capacity of tendency evidence to be influential to proof of an issue on the balance of probability in civil proceedings may differ from the capacity of the same evidence to prove an issue beyond reasonable doubt in criminal proceedings. The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence. [12]Evidence Act, Dictionary. The definition appears in s 3(1) of the Tasmanian Act. [13]See IMM v The Queen (2016) 257 CLR 300 at 314 [46] per French CJ, Kiefel, Bell and Keane JJ.
Decision
Reasons for decision
KIEFEL CJ, BELL, KEANE AND EDELMAN JJ
GAGELER J
GORDON J
In this Court the appellant acknowledges that the evidence of JP was admissible as tendency evidence on the trial of the counts involving SH and vice versa because each involved the surreptitious sexual molestation of a child in bed notwithstanding that another child was close by. He is critical of the trial judge and the Court of Criminal Appeal for the failure to articulate how the remaining tendency evidence gained its significant probative force. He asks how satisfaction that he exposed his penis to a nine year old child swimming between his legs makes it more probable that he encouraged EE, a 15 year old girl, to put her hand over his penis as they kissed. Conclusion The focus of the appellant's submission on the dissimilarity in the acts and the circumstances in which they occurred ignores the tendency that they were adduced to prove. The particular stated in the tendency notice, that the conduct occurred in the vicinity of another adult, served to highlight the appellant's willingness to act on his sexual interest in underage girls despite the evident danger of detection. It would have been more accurate to particularise the conduct as occurring in the vicinity of another person, since on some occasions it was another child who was in the vicinity. In EE's case, there was no evidence that any person was in the vicinity. Nonetheless, the evidence in support of that count was that the appellant encouraged EE to stimulate his penis as they stood kissing in the driveway of her family home, in circumstances in which EE was fearful that they would be seen. The evidence as a whole was capable of proving that the appellant was a person with a tendency to engage in sexually predatory conduct with underage girls as and when an opportunity presented itself in order to obtain fleeting gratification, notwithstanding the high risk of detection. An inclination on the part of a mature adult to engage in sexual conduct with underage girls and a willingness to act upon that inclination are unusual as a matter of ordinary human experience. Often, evidence of such an inclination will include evidence of grooming of potential victims so as to reveal a "pattern of conduct" or a "modus operandi" which would qualify the evidence as admissible at common law. But significant probative value may be demonstrated in other ways. In this case the tendency evidence showed that the unusual interactions which the appellant was alleged to have pursued involved courting a substantial risk of discovery by friends, family members, workmates or even casual passers‑by. This level of disinhibited disregard of the risk of discovery by other adults is even more unusual as a matter of ordinary human experience. The evidence might not be described as involving a pattern of conduct or modus operandi – for the reason that each alleged offence involved a high degree of opportunism; but to accept that that is so is not to accept that the evidence does no more than prove a disposition to commit crimes of the kind in question.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL, KEANE AND EDELMAN JJ,
GAGELER J,
GORDON J