Hughes v The Queen

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.