Klein (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0127

LEONA KLEIN (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, BEACH and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2022
DATE OF JUDGMENT:	14 November 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 249
JUDGMENT APPEALED FROM:	DPP v [Klein] (County Court of Victoria, Judge Gamble, 2 September 2022)

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CRIMINAL LAW – Interlocutory appeal – Rape – Indecent assault – Sexual penetration of a 16 or 17 year old – Engaging in an indecent act with a 16 or 17 year old child – Three complainants – Whether evidence of all three complainants relating to charged and uncharged acts can be led as tendency evidence – Leave to appeal refused.

Hughes v The Queen (2017) 263 CLR 338, R v Bauer (a pseudonym) (2018) 266 CLR 56 and House v The King (1936) 55 CLR 499 referred to.

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Counsel
Applicant:		Mr I Hill KC with Ms L Thies
Respondent:		Mr J Lewis and Ms S Clancy
Solicitors
Applicant:	Tony Hargreaves & Partners
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST AP
BEACH JA
T FORREST JA:

The applicant faces trial in the County Court on an indictment that charges her with 29 offences involving three complainants. At issue between the parties is a ruling by the trial judge permitting the prosecution to lead the evidence of all three complainants, relating to both charged and uncharged acts, as tendency evidence pursuant to s 97(1) of the Evidence Act 2008 (‘the Act’).[1]
[1]DPP v [Klein] (Ruling No 2) [2022] VCC 1476 (‘Tendency Ruling’).
The judge delivered the Tendency Ruling on 2 September 2022. On 9 September 2022, pursuant to s 295(3)(b) of the Criminal Procedure Act 2009, his Honour certified that the Tendency Ruling ‘was of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.[2]
[2]DPP v [Klein] (Ruling No 3) [2022] VCC 1486 (‘Certification Ruling’).
The three complainants (MN, EH and SE) are sisters. MN is two years older than EH, who is in turn two years older than SE. The applicant is charged:
•as against MN, with four charges of rape[3] and one charge of indecent assault;[4]
•as against EH, with eight charges of indecent assault,[5] three charges of rape[6] and three charges of sexual penetration of a 16 or 17 year old child;[7] and
•as against SE, with one charge of indecent assault,[8] five charges of engaging in an indecent act with a 16 or 17 year old child,[9] three charges of rape[10] and one charge of rape by compelling sexual penetration.[11]
[3]Contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes (Rape) Act 1991.
[4]Contrary to s 39(1) of the Crimes Act 1958, as amended by the Crimes (Rape) Act 1991.
[5]Contrary to s 39(1) of the Crimes Act 1958, as amended by the Crimes (Rape) Act 1991.
[6]Contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes (Rape) Act 1991.
[7]Contrary to s 48(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991.
[8]Contrary to s 39(1) of the Crimes Act 1958, as amended by the Crimes (Rape) Act 1991.
[9]Contrary to s 49(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 2006.
[10]Contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes (Rape) Act 1991.
[11]Contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 2006.

Prosecution case

Overview

The three complainants are sisters who grew up in the same family and were raised as part of the same religious community. They undertook the entirety of their schooling at the girls only campus of a religious school. A small number of students were employed to teach at the school immediately after they graduated from Year 12.
The applicant taught at the school during the entirety of the alleged period of offending. She was the Head of Religious Studies as well as the Senior School Principal. One of her responsibilities was to select which of the Year 12 graduates would be given a teaching position at the end of each year. Only a small number of Year 12 graduates were selected each year. Each of the three complainants were selected by the applicant for a teaching position when they finished Year 12: MN in 2003, EH in 2005 and SE in 2006. For each, the teaching role was their first job and they required supervision and support. It was one of the applicant’s responsibilities to provide that assistance.
In respect of MN, the charged offending is alleged to have occurred in 2003 when she was in Year 12 and in 2006 when she was a third year student teacher. Uncharged acts are alleged to have occurred throughout the period from 2002 until shortly before August 2006. During that four year period, MN was aged between 16 and 20.
In respect of EH, the charged offending is alleged to have occurred in 2004 when she was in Year 11, in 2005 when she was in Year 12, and in 2006 when she was a first year student teacher. Uncharged acts are alleged to have occurred over the summer school break in December 2003 and January 2004, and in mid-2004 when she was in Year 11. The total period encompassed by the charged and uncharged acts is just under three years, from late 2003 until about mid-2006. During that period, EH was aged between 16 and 19 or 20.
In respect of SE, the charged offending is alleged to have occurred in December 2006 when she was in Year 12, and in 2007 when she was a first year student teacher. Uncharged acts are alleged to have occurred on approximately 12 occasions in 2007 when SE was a first year student teacher. The total period encompassed by the charged and uncharged acts is therefore about 12 months, from late 2006 until late 2007. During that period, the complainant was aged between 17 and 18.

MN charged acts (charges 1–5)

Charge 1 alleges that the applicant indecently assaulted MN by touching her breasts on an occasion in 2003, when MN was in Year 12 and staying overnight at the applicant’s home. After MN went to bed, the applicant came in and lay on top of her and started touching her body over and under her clothing, including on her breasts and pubic area.
Charge 2 is alleged to have occurred when MN was in her third year as a student teacher at the school. The prosecution case is that the applicant used her fingers to digitally penetrate MN’s vagina while they were at a four day school camp which commenced on 18 June 2006. The applicant arranged to share a room with MN. On the first night of the camp, the applicant lay on top of MN in the double bed they were sharing. After hugging, kissing and touching MN, the applicant then proceeded to digitally penetrate her vagina for the first time. As she did so, she told MN ‘This will help you for your wedding night’. The applicant’s face was red and her breathing was heavy.
Charge 3 alleges that the applicant digitally penetrated MN’s vagina on another occasion while at the same school camp. It was in the same room but during the daytime. Again, the penetration occurred in the context of other alleged sexual activity, which included the applicant kissing and touching MN.
Charge 4 alleges that the applicant digitally penetrated MN’s vagina on a later occasion that was after the school camp but before she married in August 2006. MN was at the school after hours, preparing for the lessons she had to teach. The applicant was sitting next to her in the applicant’s office. After first kissing, hugging and touching MN, the applicant then put her hand down the front of MN’s underwear and digitally penetrated her.
Charge 5 alleges an additional act of digital penetration of MN’s vagina in the same timeframe as is alleged for charge 4. On this occasion, it occurred during school hours and in a different upstairs office at the school. The applicant is alleged to have penetrated MN’s vagina from the front, just as she had done during the incident the subject of charge 4.

MN uncharged acts

The uncharged acts that the prosecution seek to rely on for tendency purposes are as follows.
From approximately February until October 2002, when MN was in Year 11, the applicant is alleged to have arranged for MN to attend her office on multiple occasions and then touched her inappropriately. The applicant’s conduct included kissing MN’s neck and face, touching her inner thighs over her tights but under her uniform, rubbing her back, undoing her bra and touching her breasts. She also took MN’s hand and placed it on the applicant’s skin underneath and to the side of her bra. The applicant repeatedly told MN that she was more special to her than anyone else and not to tell anyone. The prosecution alleges that the applicant continued to do the same things to MN during 2003, when she was in Year 12.
From the time when MN commenced as a student teacher at the school in February 2004 until just before she married in August 2006, the applicant arranged for MN to receive extra lessons on Sundays in her school office. Although MN says that she cannot say exactly how many times that occurred, she estimates that there were more than ten such occasions and could well have been over twenty. While the applicant was teaching MN on those occasions, she is alleged to have sat next to her, rubbed her shoulders and thighs, kissed her face and neck, undone her bra, got her to lean back onto the applicant’s lap and then rubbed and sucked her exposed breasts. The applicant would say things like ‘your skin is so smooth/soft, it’s untouched’. She also told MN that she loved her and not to tell anyone what they were doing.
During the same period (February 2004 to August 2006), MN was teaching approximately three times per week during school term. In that context, it is alleged that applicant would contact her when MN had either finished her teaching duties for the day or when she had a free period and tell her to meet the applicant in a particular office at the school. The office varied. The applicant followed a similar routine with MN once they were both in the office: she would rub her thighs, unclip her bra and then rub and suck her breasts.
In the period 2004 to 2005, when MN was in her first two years as a student teacher, the applicant also arranged for her to come to her house at night to discuss teaching matters. The same thing would allegedly occur each time: while seated together on the dining room couch, the applicant would touch the complainant, rub her thighs, unclip her bra and then rub and suck her breasts.
On the school camp held in June 2006, there was an occasion when MN and EH were both staying in the applicant’s bedroom. The applicant shared the double bed with MN while EH, who had a cold, slept in a single bed. During the night, the applicant is alleged to have got on top of MN, rubbed her body under her nightgown and then put her hand down MN’s underwear and touched her over her pubic area whilst saying something like ‘I’ll leave that for your husband’.
On another occasion at the same 2006 camp, MN felt unwell and lay down on the bed. The applicant came into the room and is alleged to have massaged MN’s stomach, and rubbed her breasts and pubic area, both over and under her clothing. As she was touching her pubic area, she is again alleged to have said ‘I’ll leave that to your husband’.
The prosecution also rely on any uncharged acts that are alleged to have occurred during the incidents which are the subject of charges 2, 3 and 4. Specifically, for the charge 2 incident, the applicant is alleged to have hugged, touched and kissed MN before then engaging in the charged act of digital penetration; for the charge 3 incident, the applicant is alleged to have kissed and touched MN and sucked her breasts in addition to engaging in the charged act of digital penetration; and for the charge 4 incident, the applicant is alleged to have touched MN all over her body, embraced and kissed her and undone her bra before then engaging in the charged act of digital penetration.

EH charged acts (charges 6–19)

Charge 6 relates to one of the occasions that EH says the applicant arranged for her to attend the applicant’s home for private lessons on Sundays. The lessons commenced in the summer school break of 2003/2004 and continued at her home, as well as in her office, in the first half of the 2004 school year when EH was in Year 11. The particular act on which this charge of indecent assault is based is the applicant sucking EH’s breasts on a date in the first half of 2004. On this occasion, while EH was having trouble reading a particular text, the applicant put her arm around her and started rubbing her back and thighs, before unclipping her bra. The applicant then directed EH to a couch. Once there, the applicant picked EH up and put her on the applicant’s lap. The applicant then lifted EH’s top, rubbed her breasts and sucked her nipples. She also placed EH’s hand onto the applicant’s breasts and showed her what to do.
Charge 7 alleges that the applicant digitally penetrated EH’s vagina on the last night of the winter school camp which was held between 20 and 25 June 2004. According to EH, the applicant pulled her away from a group student activity and took her to the bedroom that the applicant was staying in. Once there, the applicant undressed EH until she was almost completely naked. The applicant touched EH’s breasts and then hugged her while using her fingers to penetrate EH’s vagina.
Charge 8 alleges a further act of digital penetration of EH’s vagina, said to have occurred during a two-day school trip for Year 11 and 12 students. It was on a date sometime between 2 August 2004 and 8 June 2005, when the EH was 16 or 17. As EH was making her way to a swimming pool, the applicant approached her and said that she needed to inspect a friction burn EH had sustained to her leg some weeks earlier. The applicant took EH to a bedroom, sat her on a bed and looked at her injured leg. The applicant then completely undressed EH, dragged her onto her lap and held her. She then lay EH down on the bed and got partially undressed herself, removing her top and lifting her skirt. She then proceeded to touch EH’s breasts and anal area and kiss her breasts and stomach. Ultimately, she penetrated EH’s vagina using her fingers. At one point, she also showed EH how to rub the applicant’s breasts.
Charges 9 and 10 relate to an occasion on which the applicant is alleged to have indecently assaulted EH while tutoring her at the applicant’s home on a date between 1 January and 1 June 2005, when EH was in Year 12. Charge 9 alleges that the applicant sucked EH’s breasts, while charge 10 asserts that the applicant used her fingers to rub up and down EH’s vagina. Specifically, while they were seated together at the dining room table, the applicant drew a diagram and started asking EH questions. She then started touching her. After removing EH’s top and bra, she sucked her breasts. After doing that, the applicant put her hand inside EH’s underwear and used her fingers to rub up and down the middle part of EH’s vagina but without penetrating her. While doing so, the applicant told EH how much she loved her and how much she was doing for her to show how much she loved her.
Charge 11 involves a further act of alleged digital penetration of EH’s vagina by the applicant, this time in the applicant’s office at the school. It was on a religious holiday in May 2005. The applicant asked EH to stay behind at the school instead of accompanying her classmates on the planned school excursion. The applicant took EH back to her office where she pulled her onto her lap and removed her jumper. After touching EH’s body and sucking her nipples, the applicant moved her onto the floor where she proceeded to rub EH’s body, including her vagina, which she ultimately penetrated using her fingers. She also made an unsuccessful attempt to get EH to touch the applicant’s breasts.
Charge 12 alleges that the applicant indecently assaulted EH by kissing her on the mouth on a date between 2 and 18 November 2005, when they were on an overnight school excursion held for Year 12 students in Frankston. The applicant attended in a supervisory capacity and brought her baby with her. During the evening, the applicant took EH away from a group of students to speak to her while she put her baby to bed. As the applicant sat next to EH and rocked her baby, she tried to explain what kissing on the mouth meant, how nice it felt and how it was something special between two people. The act of kissing was a new concept for EH as she had never heard of it before. After explaining it, the applicant proceeded to demonstrate by kissing EH on her mouth.
Charge 13 alleges that the applicant again indecently assaulted EH when she was in Year 12, this time by sucking her breasts while they were in the school library on a date between 24 June and 31 December 2005. It was on a school day towards the end of the school year. The applicant asked EH to sit on the floor next to her near a desk at the back of the library. She then proceeded to touch and suck the EH’s breasts.
Charge 14 alleges a similar act of indecent assault to that alleged in charge 13, but this time occurring at the applicant’s home on a date between 26 August and 31 December 2005. It was a school day. The applicant called EH out of class and arranged for a driver to collect them. After the applicant’s baby was dropped off at the babysitter’s house, the applicant got the driver to drop the two of them off at the applicant’s home. After EH ate some soup, the applicant led her to a couch where she proceeded to hug her. She told EH how much she loved her and that she was like a daughter to her. After that, she is alleged to have pulled up EH’s top, undone her bra and sucked her breasts.
Each of charges 15 to 19 allege sexual offending by the applicant against EH in 2006, when EH was in her first year as a student teacher.
Charge 15 alleges that the applicant digitally penetrated EH’s vagina at the applicant’s home on a date between 26 January and 29 August 2006. On this occasion, the applicant arranged for EH to sleep over at her house. The applicant got her teenage daughter to sleep in the applicant’s bedroom, thereby freeing up the daughter’s bedroom for EH. At one point, the applicant came into the room and pushed two single beds together. After laying her baby down, the applicant lay next to EH, pulled her bra down and touched and sucked her breasts. She then proceeded to touch EH over her tights and underwear before pulling those items of clothing down and using her fingers to penetrate EH’s vagina.
Charge 16 alleges that the applicant digitally penetrated EH’s vagina while they were at a winter school camp, which was held between 19 and 22 June 2006. EH was only at the camp for one night. The applicant arranged for her to sleep in the bedroom that the applicant was already sharing with MN. After taking EH back to the bedroom, and while they were alone, the applicant removed EH’s top and skirt, put her hand underneath her tights and underwear and then proceeded to penetrate EH’s vagina using her fingers.
Charges 17 and 18 each allege an act of indecent assault, the former by way of the applicant sucking EH’s breasts and the latter by way of getting EH to touch the applicant’s breast, while they were in a school reading room on a date between 26 January and 29 August 2006. On this occasion, EH was attempting to hide from the applicant. When the applicant found her, she first complimented her on the top she was wearing and then pulled her onto her lap. She then took EH’s breasts out of her bra and touched and sucked them. The applicant held EH to her chest and caressed her hair. She also took EH’s hand and placed it over the applicant’s bra and got her to touch and play with the applicant’s breasts. At about this point, EH’s younger sister, SE, walked into the room. She noticed that the applicant was leaning over EH, had her hand on her back underneath her clothing and her arm around EH’s neck, and was pulling her head down towards the applicant’s breasts.

Charge 19 alleges that the applicant digitally penetrated EH’s vagina in the same general timeframe as the incident the subject of charges 17 and 18. The applicant had arranged for EH to stay overnight at the applicant’s home so she could give EH lessons to prepare her for marriage. The applicant’s daughter slept in the applicant’s bedroom while EH stayed in that daughter’s bedroom. EH went to bed fully clothed. The applicant came into the room very late that night and got on top of EH. After pulling up EH’s top and removing her bra, the applicant kissed her on the chest and sucked her breasts. After that, the applicant pulled down EH’s tights, spread her legs and then penetrated EH’s vagina with her fingers.

EH uncharged acts

The uncharged acts that the prosecution seek to rely on for tendency purposes are as follows.
In the summer school break over December 2003 and January 2004, when EH was aged 16 and about to commence Year 11, the applicant arranged for her to receive private lessons. EH estimates that she attended approximately ten of these lessons. The applicant chose who to give such lessons to and told EH not to tell other students of what was occurring. The lessons were about morals and how a girl was supposed to act. They were conducted in the applicant’s office at the school and also at her home. When the lessons first started, the applicant would rub her hand on EH’s thigh, put her hand under EH’s skirt and rub the inside of her thighs. As she was doing this, the applicant would ask EH what was happening in her life and repeatedly told the complainant that she could trust her and that she was there for her. On some occasions, the applicant pulled EH into her lap and hugged her.
On another occasion (early 2004, when EH was in Year 11), while seated together on a couch in the applicant’s dining room, the applicant put her arms around EH and got her to lie down. The applicant was seated on the floor next to the couch. She rubbed the EH’s back over and under her clothing and bra strap. After getting EH to roll over, the applicant started touching her stomach. The applicant was cradling EH’s upper body in her arms. She told EH that she could call her ‘mother’ and that this was her way of showing her how much she loved her. She kept telling EH that she loved her. The applicant also briefly touched EH’s breasts over her bra.
The school had a winter camp in June of 2004 which was to be led by the Year 11 students, of which EH was one. In the period leading up to that camp, it is alleged that the applicant often took EH out of class, or utilised the unstructured time outside of formal lessons that was set aside for the students to prepare for the camp, so as to spend time with her alone. During this period, the applicant arranged for EH to attend her office to talk to her. After talking for a little while, the applicant would commence to touch EH. She rubbed and comforted her and told her that she was there for her. Although there were some occasions when the applicant only touched and sucked EH’s breasts, on most occasions she also touched and digitally penetrated EH’s vagina as well as touching her anus. The applicant also tried to get EH to touch the applicant’s breasts.
The prosecution also rely on the uncharged acts that are alleged to have occurred during incidents the subject of charges 6, 7, 8, 11, 13, 15, 17, 18 and 19. Specifically:
(1)For the charge 6 incident, the applicant is alleged to have rubbed EH’s breasts, placed EH’s hand on the applicant’s breast and moved it around so as to show her what to do. This is conduct in addition to the charged act of the applicant sucking EH’s breasts/nipples.
(2)For the charge 7 incident, the applicant is alleged to have undressed EH, rubbed her breasts and hugged her before engaging in the charged act of digitally penetrating her vagina.
(3)For the charge 8 incident, the applicant is alleged to have touched EH’s breasts and anal area, kissed her breasts and stomach and shown her how to touch the applicant’s breasts before ultimately engaging in the charged act of penetrating EH’s vagina.
(4)For the charge 11 incident, the applicant is alleged to have touched EH all over her body, sucked her breasts and unsuccessfully tried to get EH to touch the applicant’s breasts over her bra in addition to the applicant committing the charged act of using her fingers to penetrate EH’s vagina.
(5)For the charge 13 incident, the applicant is alleged to have touched and played with EH’s breasts in addition to engaging in the charged act of sucking her breasts.
(6)For the charge 15 incident, the applicant is alleged to have touched and sucked EH’s breasts before engaging in the charged act of penetrating her vagina.
(7)For the incident the subject of charges 17 and 18, the applicant is alleged to have touched and played with EH’s breasts in addition to engaging in the charged acts of sucking her breasts and placing EH’s hands on the applicant’s breasts.
(8)For the charge 19 incident, the applicant is alleged to have kissed EH’s chest and sucked her breasts in addition to engaging in the charged act of penetrating EH’s vagina.

SE charged acts (charges 20–29)

Charges 20 to 24 allege that the applicant committed a number of indecent acts with SE when she was in Year 12, aged 16 or 17 and under the care, supervision or authority of the applicant.
The acts the subject of charges 20 and 21 are alleged to have occurred during a single episode of offending on a date between 1 and 11 December 2006, when SE was in Year 12 and undertaking a period of rehearsals for the 2006 end of year school play. Charge 20 alleges that the applicant got SE to touch the applicant’s breast while charge 21 alleges that the applicant touched SE’s breast. Specifically, one morning during the period of rehearsals, the applicant approached SE and told her that she needed to speak with her later in the day. At lunchtime, the applicant approached SE again and told her to meet her in an upstairs office. After SE had been waiting in the office for about 5 to 10 minutes, the applicant arrived and sat next to her. She asked SE how she was feeling and started to touch her thighs over clothing, including her inner thighs, and kissed her. The applicant also placed SE’s hand on the applicant’s breast and asked her if it felt good. The applicant then put her hand under SE’s clothing and touched her on the breast. By the end of this incident, the applicant was ‘really flushed’ and said ‘We will continue this later’.
The two indecent acts of touching SE’s breast alleged in charges 22 and 23, while not occurring in a single episode of offending, are said to have taken place on the same night, one just before and the other just after the school play was performed on the evening of 11 December 2006. About 30 minutes before the play commenced, SE was alone in the dressing room. The applicant came to see her and used her body to block the door so that no one else could enter. She then touched SE’s breast over her clothing and kissed her on the neck. As she was doing so, she asked SE how she was feeling and wished her good luck.
After the play finished, SE’s mother made a scene in front of other people, being angry with SE because she wasn’t ready to go home. This was witnessed by the applicant who went to see SE in the dressing room. While they were alone, the applicant attempted to calm SE down and asked her how she was feeling. She asked SE if she wanted to come back to her house for a while. The applicant then touched SE in the same way that she had done before the play, running her hands over her breast and kissing her on the neck.
The acts alleged in the remaining charges (charges 24 to 29) are alleged to have been committed in 2007 when SE was a first year student teacher.
The indecent act alleged in charge 24 involved the applicant getting SE to touch the applicant’s breast. It is the first of the charged acts which occurred when SE was in her first year as a student teacher at the school. SE was 17. It was within two or three days of her starting her new teaching role. On this occasion, the applicant came to the door of SE’s classroom and asked her to come back to the applicant’s home after school so that she could help SE with one of the subjects she was teaching. When they were at the applicant’s home later that day, the applicant touched SE on her legs and back over her clothing and kissed her on the neck and face while they were on a couch. She then made SE touch her by putting SE’s hand on her breast and directing it. The applicant also got SE to touch the inside of the applicant’s legs over clothing.
Charge 25 alleges that the applicant indecently assaulted SE by kissing her vagina. The rapes alleged in charges 26 and 27 assert that the applicant penetrated SE’s vagina with a sex toy and the applicant’s finger, respectively. The charge of rape by compelled sexual penetration alleged in charge 28 is based on the applicant having compelled SE to penetrate the applicant’s vagina with her finger. All of these alleged acts are said to have occurred during the course of a single episode of offending at the home of the applicant on a date between 10 September and 19 December 2007. They are alleged to have occurred in the following circumstances.
At about 9:00 pm on the particular day, the applicant took SE to the applicant’s bedroom and touched her over clothing. After getting undressed herself, the applicant then touched and undressed SE. She then got on top of SE and tongue kissed her. After that, the applicant kissed SE all over her body, including on her vagina. The applicant then produced a sex toy, and made SE put it between the applicant’s breasts. The applicant then used the same object to penetrate SE’s vagina, kissing SE on the mouth and breasts as she did so. The applicant also used her index finger to penetrate SE’s vagina in a way that caused SE to feel pain. The applicant also made SE kiss the applicant’s breasts and tried to get her to kiss the applicant’s vagina. After that, the applicant placed SE’s hand on the applicant’s vagina and instructed her to do what the applicant had just done to her, in response to which SE used one of her fingers to penetrate the applicant’s vagina.
Charge 29 is the last of the charges and alleges that the applicant raped SE by using a finger to penetrate her vagina while they were at the applicant’s home. This incident is said to have occurred in the same timeframe as the separate incident on which charges 25 to 28 are based. On this occasion, the applicant asked SE to come over and tidy her house. When SE arrived at about 5:30 pm, the applicant immediately started to touch SE on the breasts over clothing and kiss her on the neck, cheek and breasts. She then used her fingers to penetrate SE’s vagina.

SE uncharged acts

The uncharged acts that the prosecution seek to rely on for tendency purposes are as follows.
SE alleges that throughout 2007, the applicant continued to arrange to be alone with her. The applicant arranged for SE to come to her home. In addition, the applicant arranged for her to attend at her office at the school on some Sundays. On the occasions at the house, SE alleges that the applicant touched her in the same way as she had done during the incident the subject of charge 24. That is, she rubbed her back, touched her all over and kissed her neck and face. SE estimates that there were approximately 25 occasions when this happened at the applicant’s house in 2007.
In relation to the attendances at the school office in 2007, SE states that the applicant arranged for her to attend there on Sunday mornings so that she could teach her. No one else was at the school except the cleaners. The applicant would start teaching SE but then come and sit next to her and start touching her leg. After locking the door and closing the blinds, and depending on how much time she had, the applicant would then either touch her over clothing or partially undress and then penetrate her vagina with her fingers while saying ‘This is good for you’. SE estimates that there were about 12 such occasions in 2007.
The prosecution also rely on any uncharged acts that are alleged to have occurred during the incidents the subject of charges 20 to 29. Specifically:
(1)For the incident the subject of charges 20 and 21, the applicant is alleged to have touched SE’s inner thighs over clothing before engaging in the charged acts of placing SE’s hand on the applicant’s breast (charge 20) and touching SE on the breast under clothing (charge 21).
(2)For the charge 22 incident, the applicant is alleged to have kissed SE’s neck in addition to engaging in the charged act of touching SE’s breast over clothing.
(3)For the charge 23 incident, the applicant is similarly alleged to have kissed SE’s neck in addition to engaging in the charged act of touching SE’s breast over clothing.
(4)For the charge 24 incident, the applicant is alleged to have kissed SE’s neck and face and touched her on her legs and back over clothes in addition to engaging in the charged act of making SE touch the applicant’s breast with her hand over clothing.
(5)For the incident the subject of charges 25 to 28, the applicant is alleged to have kissed SE on the mouth and breasts, made her kiss and touch the applicant’s breasts with the sex toy and tried to make her lick the applicant’s vagina in addition to engaging in the charged acts of kissing SE’s vagina (charge 25), penetrating SE’s vagina using the sex toy (charge 26) and her finger (charge 27) and compelling SE to penetrate the applicant’s vagina with her finger (charge 28).
(6)For the charge 29 incident, the applicant is alleged to have touched SE on the breasts over clothing and kissed her on the cheeks, neck and breasts before engaging in the charged act of penetrating SE’s vagina with her fingers.

Defence response

The defence response filed pursuant to s 183 of the Criminal Procedure Act 2009 makes it clear that the credibility and reliability of each complainant will be an issue in any trial. The applicant denies all of the criminal conduct alleged by each of the complainants. The central issue at any trial will be whether the prosecution can prove beyond reasonable doubt that what the complainants say happened, did in fact happen.

Tendency notice

The tendency notice served pursuant to s 97(1)(a) of the Evidence Act, and relied upon by the prosecution, is a further amended tendency notice dated 27 July 2022 (‘the tendency notice’). It states that the prosecution seeks to rely upon the tendency of the applicant to have a particular state of mind and act in a particular way, namely:
(a)To have a sexual interest in young female students/student teachers, to engage in sexual activities with them, and to take advantage of their vulnerability, ignorance in sexual matters, and her position of authority in order to do so.
(b)To do the above in the vicinity of others or at risk of being discovered.[12]
[12]During submissions before the judge, the prosecution abandoned reliance upon paragraph (b).
The evidence relied upon to establish the tendency was set out in a table (Table A) in the tendency notice. Table A is broken into three self-explanatory columns: ‘Substance of evidence relied upon to support tendency’; ‘Features of evidence establishing the tendency’; and ‘Relevant witnesses and depositions reference’. Table A contains 33 items, in which the evidence of MN, EH and SE in relation to the various charged and uncharged acts relied upon to support the asserted tendency are summarised. The summary is supported by references to the complainants’ statements in the depositions and their evidence at committal.
Finally, the tendency notice states that the issue in the case to which tendency reasoning applies is, ‘Whether each of the charged acts occurred’; and that the tendency asserted in the notice is relied upon in support of charges 1 to 29, ‘as making more likely the facts founding those charges’.

Tendency Ruling

The judge commenced his reasons for judgment by identifying the relevant issues,[13] summarising the prosecution case and the complainants’ allegations,[14] and identifying the matters that will be in issue in any trial.[15] In the course of summarising the complainants’ allegation, the judge described in detail the circumstances of each of the 29 charges and each of the uncharged acts which the prosecution seeks to rely upon for tendency purposes.[16]
[13]Tendency Ruling, [1]–[9].
[14]Ibid [10]–[99].
[15]Ibid [100]–[101].
[16]Ibid [16]-[99].
The judge then summarised the tendency notice,[17] described the statutory framework and relevant legal principles,[18] before summarising the submissions of the parties.[19]
[17]Ibid [102]–[107].
[18]Ibid [108]–[118].
[19]Ibid [119]–[161].
The judge commenced his analysis of the tendency issue by observing that the asserted tendency had a number of component parts. He analysed these component parts under the following headings:
•‘Teenage students at the school’;
•‘Student teachers at the school’;
•‘Sexual interest’;
•‘To engage in sexual activities with them’;
•‘The complainants’ vulnerability’;
•‘Ignorance in sexual matters’;
•‘Her position of authority’;
and headings that dealt with the applicant having taken advantage of the complainants’ vulnerability, their ignorance of sexual matters and the applicant’s position of authority.[20]
[20]Ibid [163]–[200].
The judge observed that each of the complainants were teenage students at the school who later became student teachers at the school, rejecting a defence submission that the phrase ‘student teacher’ was inapt.[21]
[21]Ibid [164]–[172].
Having noted that he was required to take the evidence relied upon in support of the tendency notice at its highest,[22] the judge concluded that the evidence of the complainants amply demonstrated the applicant’s sexual interest asserted in the tendency notice and the applicant’s tendency to engage in sexual activities with teenage students at the school and with those same girls when they were student teachers at the school.[23]
[22]Ibid [162].
[23]Ibid [173]–[175].
As to the issue of the complainants’ vulnerability and their ignorance in sexual matters, the judge concluded that each of the complainants’ statements disclosed that they were persons who were capable of being taken advantage of if someone was so minded, and that they were relevantly ignorant in sexual matters at the time of the applicant’s alleged offending.[24] In so concluding, the judge rejected a defence submission that the description ‘ignorance in sexual matters’ is ‘vague and lacking any discernible meaning’.[25]
[24]Ibid [176]–[180].
[25]Ibid [181].
As to the applicant’s position of authority, the judge observed that it did not appear to be in dispute that during the period of the applicant’s alleged offending, she held positions of authority within the school, and ‘commanded great respect’ within the school and the community.[26] The judge rejected a defence submission that a distinction needed to be drawn between the principal/student relationship and the principal/student teacher relationship, saying that in each case the relationship was one in which the applicant had the power and authority over the complainants as students and as student teachers.[27] The judge concluded that, on the evidence upon which he was required to act, the applicant ‘possessed authority in the relevant sense and for the duration of the period relating to these allegations’.[28]
[26]Ibid [182].
[27]Ibid [185].
[28]Ibid [186].
As to the applicant taking advantage of the complainants’ vulnerability, their ignorance of sexual matters and her position of authority, the judge said:
The next part of the consideration of the asserted tendency, and an important one, is the prosecution claim that the accused took advantage of the complainants’ vulnerability and ignorance of sexual matters, as well as of her own authority, in order to engage in sexual activities with them.
So, it is not enough to establish the asserted tendency to show that the complainants had the relevant vulnerability and state of ignorance and the accused enjoyed a position of authority. What must also be shown is that the accused knew of those matters and took advantage of them in order to engage in sexual activities with the complainants.[29]
[29]Ibid [187]–[188] (emphasis in original).

The judge then analysed the evidence in relation to these matters, concluding that the evidence relied upon by the prosecution was well-capable of demonstrating that the applicant was aware of the relevant vulnerability of the complainants;[30] was aware of the complainants’ ignorance of sexual matters;[31] and that she ‘would have clearly known and understood the fact that she was in a position of authority and power and respect that came with it’.[32] The judge said that it was through the applicant’s position of authority that she was able to ensure that she could ‘continue to have access to each complainant over the relevant timeframes and to facilitate opportunities to be alone with them’.[33] Thus, the judge held that it would be open to conclude that the applicant took advantage of her position of authority in the sense asserted in the tendency notice.[34]
[30]Ibid [189].
[31]Ibid [196].
[32]Ibid [198].
[33]Ibid [200].
[34]Ibid.
The judge said that the nature of the tendency asserted by the prosecution was ‘quite specific’, rejecting a defence submission that it was too generalised and vague.[35] He also observed that the allegations encompassed a period of approximately five years without any respite, hiatus or delay.[36]
[35]Ibid [202].
[36]Ibid [208]–[209].
The judge noted a defence submission which sought to highlight differences in some of the alleged conduct — the conduct ranging from kissing EH when she was a Year 12 student (charge 12) to the ‘much more serious conduct’ with SE involving the use of the sex toy (charges 25 to 28).[37] The judge said that, while there were differences in some of the offending, the defence submission about those differences ignored the fact that there were also a number of similarities in the applicant’s alleged conduct.[38] The judge then said:
It is also of note that the circumstances in which some of the alleged offending occurred possessed a notable and somewhat striking feature. In respect to each complainant, the accused indicated in effect that what she was doing was helping them.[39]
[37]Ibid [210].
[38]Ibid [211].
[39]Ibid [213].
Having concluded that the evidence established the tendency asserted in the tendency notice, the judge turned to the question of whether the evidence had significant probative value as required by s 97(1)(b) of the Act. After analysing this question by reference to the evidence, the judge said:
The evidence which the prosecution seek to rely on, if accepted by a jury, would demonstrate that the accused was a person who was sexually attracted to girls when they were teenage students and when those same girls were student teachers at the school and acted upon such interest in various ways and at different times but always in a context where those to whom she directed her sexual attentions were vulnerable and ignorant as to sexual matters and she was able to take advantage of those things and her position of authority for the purpose of engaging in sexual activities with them.
I also consider that the tendency evidence would have significant probative value in relation to all charges as there is a sufficient connection between the various episodes the subject of the allegations concerning both charged and uncharged acts. In that context, I do not regard the various differences in the acts, times locations and level of planning identified by the defence as materially undermining that connection or the probative value of the evidence.
In my view, the evidence of the three complainants is capable of rationally affecting the assessment of the probability of the central fact in issue as to whether the accused engaged in the conduct charged in the indictment, to a significant extent. That evidence will have significant probative value in the determination of the question whether the individual allegations the subject of each charge should be accepted.
In coming to those conclusions, I have considered the extent to which the evidence supports the tendency as well as the extent to which the tendency makes more likely the facts making up the charged offences. In my view, there is strong support for both considerations in that the evidence by itself or together with other evidence strongly supports proof of the tendency and the tendency strongly supports the proof of a fact that makes up each of the offences charged.[40]
[40]Ibid [224]–[227] (emphasis in original).
The judge then turned to the question of whether the probative value of the tendency evidence substantially outweighed any prejudicial effect it may have, as required by s 101(2) of the Act. The judge identified the aspects of prejudice relied upon by the defence as follows:
·The nature of the allegations themselves is inherently prejudicial and may cause a jury to decide the case on emotion rather than on an intellectual and logical basis;
·The difficult home life of each of the complainants is likely to arouse strong feelings of sympathy in the minds of the jury which may improperly influence their reasoning process;
·There is a risk that a jury may use evidence for an improper purpose, for example:
ØTo use tendency evidence to ‘gap fill’ deficiencies in the prosecution case;
ØTo engage in ‘substitution reasoning’ by using the mere conclusion that the accused offended against one complainant to find that she must also have done so in respect of the other complainants;
ØTo engage in rank propensity reasoning whether in an intra-complainant or an inter-complainant context;
ØTo give the tendency evidence undue weight; and
ØTo use the evidence of uncharged acts to punish the accused;
·The combination of tendency and context evidence in a trial involving sexual allegations made by multiple complainants creates a degree of complexity and a corresponding need for numerous directions. A jury would be ‘swamped’ and simply not capable of understanding and/or applying the instructions they received; and
·The sheer volume of the evidence relating to charged and uncharged acts represents an incurable ‘overloading’ of the indictment.[41]
[41]Ibid [232].
The judge concluded that any risk of prejudice, including any ‘emotional impact’ on the jury, was ‘curable by directions or at least able to be ameliorated to an acceptable level’.[42] After further analysis, the judge said that he was satisfied that the probative value of the tendency evidence substantially outweighed any prejudicial effect.[43]
[42]Ibid [239].
[43]Ibid [245].
The judge concluded his reasons by saying:
In light of the abovementioned findings in relation to ss 97(1) and 101(2), I consider that there is no basis to refuse to admit the evidence under either s 137 or s 135 of the Act. I did not understand the defence to have suggested that the court should take such any different view in relation to those two sections in the event that the respective tests for admissibility in s 97(1) and s 101(2) were satisfied.
Accordingly, I grant the prosecution application to adduce the relevant evidence as tendency in accordance with the terms of their final amended tendency notice and these reasons.[44]
[44]Ibid [247]–[248].
The Record of Orders, signed by the judge on 12 September 2022, records that the judge ordered that the tendency which the prosecution will be permitted to rely upon is a tendency of the applicant:
To have a sexual interest in girls when they were teenage students at the school and when those same girls were student teachers at the school to engage in sexual activities with them and to take advantage of their vulnerability, ignorance in sexual matters and her position of authority, in order to do so.

Proposed grounds of appeal

The applicant’s proposed grounds of appeal are as follows:
1.The judge erred in finding that the ‘evidence establishes’ that the accused has a tendency to:
(a)have a sexual interest in young female students/student teachers, and
(b)to engage in sexual activities with those young female students/student teachers, and
(c)to take advantage of their vulnerability and ignorance in respect of sexual matters, and
(d)her position of authority in order to do so.
2.The judge erred by permitting the prosecution to adduce tendency evidence in circumstances where:
(a)the evidence lacked significant probative value, and
(b)the probative value of the evidence is substantially outweighed by its prejudicial effect.

Applicant’s submissions

The applicant submitted that, in light of Hughes,[45] assessment of significant probative value for the purposes of s 97(1)(b) of the Act involves consideration of two interrelated but separate matters: first, the extent to which the evidence supports the tendency; and, secondly, the extent to which the tendency makes more likely the facts making up the charged offence.
[45]Hughes v The Queen (2017) 263 CLR 338, 356 [41] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20 (‘Hughes’).
Under cover of proposed ground 1, the applicant made the following submissions:
(1)In relation to the extent to which the evidence supports the asserted tendency, the judge examined the evidence in a global sense, without close analysis of whether each of the 33 items in the tendency notice by themselves or together or with other evidence established the asserted tendency to a strong extent. In doing so, the judge did not give sufficient weight to material differences between each item of evidence, and wrongly concluded that there was ‘sufficient similarity’ linking the offending.
(2)In viewing the evidence globally, the judge placed undue weight on what he perceived to be ‘noteworthy commonalities’. Contrary to his Honour’s findings, the various episodes the subject of the complainants’ allegations lack sufficient connection, ‘such that there is no special feature of or about them that links them together’.
(3)The judge was wrong to conclude that the asserted tendency as ‘quite specific’. The asserted tendency is expressed at a high level of generality, and its ‘vague and common nature does no more than invite rank propensity reasoning’. In essence, the asserted tendency does not describe a ‘tendency to act in a particular way’ as envisaged by s 97(1)(b) of the Act.
(4)It was not open to the judge to conclude that there was ‘strong support’ for the proposition that the evidence ‘by itself or together with other evidence’ strongly supports proof of the so-called tendency.
With respect to proposed ground 2, the applicant made the following submissions:
(1)It was not open for the judge to find that the tendency evidence has significant probative value in the determination of whether each of the individual allegations the subject of the charges should be accepted. Significant differences in each of the 33 items in the tendency notice — being the range of locations; the fact that they occurred at different stages of the complainants’ lives; the difference between opportunistic offending in some instances and planned offending in others; and the broad range of gravity of the offending — deprived the evidence of its probative value as tendency evidence.
(2)It cannot be said that every item in the tendency notice demonstrates a ‘cumulative’ example of an occasion on which the applicant took advantage of the complainants’ vulnerability and their ignorance in sexual matters and the applicant’s position of authority, in order to engage in sexual activities. Taking into account the numerous differences in each item, the fact that not every item on the tendency notice supports every facet of the asserted tendency, and the general nature of the asserted tendency itself, it was not open for his Honour to conclude that s 97(1)(b) was satisfied.
(3)In ruling that the probative value of the tendency evidence substantially outweighs any prejudicial effect pursuant to s 101(1) of the Act, the judge did not give sufficient weight to the prejudicial effect of admitting the evidence as tendency evidence. The prejudicial effect of admitting as tendency evidence each of the items in the tendency notice is considerable and cumulative. There is a danger that the jury may be influenced to convict the applicant as punishment for conduct other than that charged, or that they might become distracted from central issues in the trial.
(4)In addition, specific risks arise in this matter in part due to the complexities of dealing with a high-profile case relating to historical offending and a 29-count indictment containing offences that vary in nature and gravity in relation to three complainants. While the judge referred to these matters in his ruling,[46] his Honour did not give them sufficient weight. In particular, his Honour misjudged the extent to which the complexities arising would overwhelm and confuse the jury.
(5)The combined effect of the prejudice that flows from the admission of the evidence as tendency evidence is very significant. That prejudice is incapable of being cured by direction, and is not outweighed by the probative value of the evidence — let alone outweighed to a substantial degree.
[46]Tendency Ruling, [156].

Respondent’s submissions

The respondent submitted that, when assessing the significant probative value of putative tendency evidence, the applicable test is that set out in Hughes.[47]
[47]See [74] above.
With respect to proposed ground 1, the respondent submitted as follows:
(a)Whilst the respondent accepted that similarities and dissimilarities in the circumstances of alleged offending can be highly useful in determining whether evidence establishes an asserted tendency, not all such similarities and dissimilarities will be equally helpful (and some will not be helpful at all). The key is in the relationship of the asserted tendency to the similarity or difference sought to be relied upon.
(b)The range of locations at which offences occurred; the fact that some examples of offending are opportunistic, and others are planned; and the variations in mode and gravity of offending; have no real bearing on whether the asserted tendency exists or not, since the asserted tendency is largely unrelated to concepts of location, opportunism, or the mode or gravity of the alleged offending.
(c)Although the different stages of the complainants’ respective lives at the time of the alleged offending may have some relevance, when the evidence is properly analysed, it is clear that each complainant was at a similar life stage when the offending took place.
(d)No single feature links the evidence of tendency together. Rather, a combination of features makes the alleged tendency more striking, thereby supporting the second limb of the Hughes test.
(e)The asserted tendency is aggregated, in that it contains a number of aspects, all of which are said to be operative in relation to the evidence contained in Table A of the tendency notice. Each aspect adds to the detail and precision of the asserted tendency. That being so, the applicant’s submission that the asserted tendency is ‘vague and common’ cannot withstand scrutiny. Indeed, the asserted tendency bears a marked similarity to that endorsed in PWD[48] (itself referred to by Nettle J in Hughes,[49] in part to explain the probative value of aggregated tendency).
[48]R v PWD (2010) 205 A Crim R 75; [2010] NSWCCA 209.
[49]Hughes (2017) 263 CLR 338, 398–9 [162]–[164]. (Nettle J); [2017] HCA 20.
As to proposed ground 2, the respondent advanced the following submissions:
(a)Insofar as the applicant relies on purported differences in the alleged conduct to contend that they deprive the evidence of significant probative value, the difference relied upon is of no real significance to the asserted tendency; or, in the case of the ‘stage of life’ aspect, the difference relied upon does not truly exist.
(b)Contrary to the applicant’s submissions, each item in the tendency notice does encompass, to a greater or lesser extent, all aspects of the asserted tendency.
(c)All matters of potential prejudice were considered by the trial judge, who did not misjudge the potential for the use of evidence as both context and tendency evidence to confuse a jury. Context and tendency are distinct evidentiary concepts that juries have been entrusted to understand on a regular basis. There is no particular reason to conclude that the use of evidence in the manner proposed this case would result in confusion. In fact, due to the complete overlap of tendency and context evidence in this case, some complexities that have arisen in other cases will not be present here.[50]
(d)The decision of the trial judge to permit the respondent to adduce tendency evidence was a discretionary decision. As a result, House[51] principles apply. That being so, appellate intervention could only be warranted if the trial judge acted upon a wrong principle, took an irrelevant matter into account, failed to take account of a material matter or mistook the facts, or if the judge’s decision was unreasonable or plainly unjust.[52]
[50]For example, Bauer (a pseudonym) v The Queen (2015) 46 VR 382, 385–6 [9]–[10] and 388 [23] (Weinberg JA); [2015] VSCA 55.
[51]House v The King (1936) 55 CLR 499; [1936] HCA 40 (‘House’).
[52]Danny (a pseudonym) v The Queen [2018] VSCA 223, [11] (Whelan, Priest and Kaye JJA).

Discussion

Grounds 1 and 2

The tendency notice in its final form is set out at para 54 of these reasons. It will be recalled that the prosecution seek to establish that the accused has a tendency:
(a)To have a sexual interest in young female students /student teachers, to engage in sexual activities with them, and to take advantage of their vulnerability, ignorance in sexual matters and her position of authority, in order to do so.
In para 55 of these reasons we observe that Table A of the tendency notice contains 33 items in which the evidence of the three complainants is relied upon to support the asserted tendency.
The substance of both grounds 1 and 2 is concerned with the asserted generality of the final amended notice as set out above. Its generality is such, so the argument goes, that it invites ‘rank propensity reasoning’. It does not describe a tendency to act in a particular way as contemplated by s 97(1) of the Act and there is little if any similarity in the conduct alleged. There is said to be no special feature of or about (the charged and uncharged acts) that links them together.
Section 97(1) of the Act reads as follows
97 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—
(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.
(2) Subsection (1)(a) does not apply if—
(a) the evidence is adduced in accordance with any directions made by the court under section 100; or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.
Note
The tendency rule is subject to specific exceptions concerning character of and expert opinion about an accused (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.

Section 101 of the Act overlays a further requirement that, before any tendency evidence is adduced in a criminal proceeding an assessment must be made that the ‘probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.’
In Hughes[53] the evaluation of ‘significant probative value’ was stated to involve consideration of two separate but related matters –
(a)the extent to which the evidence supports the tendency; and
(b)the extent to which the tendency makes more likely the facts constituting the charged offence.
[53]Hughes (2017) 263 CLR 338, 356 [41] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20.
In multiple complainant cases, such as the present case, the High Court in Bauer[54] makes clear that for evidence that an accused has committed a sexual offence against one complainant, to be significantly probative of the accused having committed a sexual offence against another, there must be some feature of or about the offending which links the two together.
[58] In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the 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 another 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.
[59 ] Hughes illustrates the point. The case involved multiple complainants each alleging that the accused had committed one or more sexual offences against her, where the offences that were alleged to have been committed against some groups of complainants were in significant respects different in kind and circumstance from the sexual offences alleged to have been committed against each other group of complainants. It was not disputed that evidence of each sexual offence alleged to have been committed against a complainant was admissible as tendency evidence in proof of other sexual offences alleged to have been committed against that complainant, even though, in some cases, the nature of the offending differed significantly from one charge to another. The issue was how much if any of each complainant's evidence of the sexual offences and uncharged acts alleged to have been committed against her was admissible as tendency evidence in proof of the sexual offences alleged to have been committed against the other complainants. And the case was ultimately decided by majority on the basis that, taken as a whole, the evidence of each alleged sexual offence and uncharged act demonstrated a common feature that a man of mature years had a sexual interest in female children under 16 years of age and a tendency to act upon it by committing sexual offences against them opportunistically in circumstances which entailed a high risk of detection. In the view of the majority, such was the significance of that common feature that evidence of each alleged sexual offence and uncharged act had significant probative value in proof of each other charged offence.[55]
[54]R v Bauer (a pseudonym) (2018) 266 CLR 56, [2018] HCA 40 (‘Bauer’).
[55]Bauer (2018) 266 CLR 56, 30-1 [58]–[59] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2018] HCA 40 (citations omitted).
In the present case as we have observed the applicant does not contend the judge misstated these principles; rather the applicant contends that the judge incorrectly applied them — specifically that the tendency alleged, assuming it be proven, is expressed so broadly as to have little probative value, and certainly not significant probative value.
We agree with the judge that the evidence relied upon in the tendency notice is sufficient to establish the tendency asserted in the notice. Specifically we agree that the evidence is capable of establishing that the applicant is a person who was sexually attracted to girls when they were students and when those same girls were young student teachers at the same school. We agree that the evidence is further capable of establishing that the applicant was prepared to act upon that sexual attraction in different ways and on different occasions but always in a context where the object of her attention was vulnerable, naïve as to sexual matters, and where the applicant was in a position of significant authority.
We further agree with his Honour that this evidence has significant probative value in relation to all charges and that there is a sufficient connection between the various charges and uncharged acts. These various differences in the acts, times, locations and level of planning (whether opportunistic or pre-planned) do not materially undermine that connection or the probative value of the tendency evidence sought to be adduced.
We agree that the impugned evidence of the three complainants is capable of rationally affecting the assessment of the probability of the central fact in issue in the forthcoming trial — namely whether the applicant engaged in the conduct alleged in the indictment. The impugned evidence, we consider, will have significant probative value in the proof of each individual charge on the indictment.
Thus we agree with the judge’s conclusion on the two stage process identified in Hughes.[56] The evidence strongly supports proof of the tendency and the tendency strongly supports proof of a fact that makes up each of the offences charged.
[56]Hughes (2017) 263 CLR 338, 356 [41] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20.
It follows that we do not accept the applicant’s submission that the tendency alleged is expressed so broadly as to have little probative value.
We have also concluded that the judge was correct in determining that the probative value of the tendency evidence substantially outweighed any prejudicial effect that it may have. The judge carefully reviewed the areas of potential prejudice including the nature of the allegations themselves, the difficult home life of the complainants and the strong feelings of sympathy arising from that, the risk that the jury may use the evidence to ‘gap fill’ deficiencies in the prosecution case or engage in ‘substitution reasoning’, the risk that the jury would engage in mere propensity reasoning, the risk that the evidence of uncharged acts may give rise to a desire to punish the applicant and the risk that the jury may give the evidence undue weight as a consequence of any one or a combination of the above factors.
The judge also considered the defence submissions that the combination of tendency and context evidence in a trial involving sexual allegations created a degree of complexity and the corresponding need for ‘numerous directions’ and the sheer volume of evidence including the fact of the 29 charges themselves led to an incurable overloading of the indictment.
We agree with his Honour’s conclusion that these risks are ‘curable by directions, or at least able to be ameliorated to an acceptable level’.[57] Insofar as complexity is concerned there is a complete overlap of tendency and context in this case unlike for example in Bauer,[58] which will reduce the complexity of the charge to some degree.
[57]Tendency Ruling, [239].
[58]This was common ground between the parties.

Conclusion

In this interlocutory appeal the principles in House v the King[59] apply. The applicant has failed to demonstrate that the judge acted upon a wrong principle, took an irrelevant matter into account, failed to take account of a material matter or mistook the facts or acted plainly unreasonably or unjustly. In any event, we agree with the judge’s analysis and are of the view that his conclusions are correct. Leave to appeal under both grounds must be refused.
[59]House (1936) 55 CLR 499; [504]-[555] (Dixon, Evatt and McTiernan JJ) [1936] HCA 40
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[2022] VSCA 249

14 November 2022