Marsh v The Queen

[2018] ACTCA 55

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Marsh v The Queen

Citation:

[2018] ACTCA 55

Hearing Date:

13 August 2018

Decision Date:

29 November 2018

Before:

Murrell CJ, Mossop and Wigney JJ

Decision:

The appeal is allowed.

The appellant’s convictions are set aside and a retrial is ordered.

Catchwords:

APPEAL – APPEAL AGAINST CONVICTION – Whether evidence erroneously admitted at trial – Whether jury was misdirected – Whether substantial miscarriage of justice – Supreme Court Act 1933 (ACT) s 37O(2)(a)(iii) – Whether conviction should be set aside – Whether there should be a retrial

EVIDENCE – TENDENCY EVIDENCE – Historical child sexual offences – Whether evidence of uncharged acts were of significant probative value – R v Bauer [2018] HCA 40; 92 ALJR 846 – Whether tendency conduct directed at a class of persons is significantly probative of whether conduct against the complainant occurred – Whether probative value substantially outweighed any prejudicial effect

JURY DIRECTIONS – Court Procedures Rules 2006 (ACT) r 5531 – Where leave required for appeal – Where trial judge’s directions concerning lies told by the appellant not challenged at trial – Whether leave should be granted – Whether it was open to the jury to infer a consciousness of guilt from the appellant’s lies – Whether trial judge should have directed it was not open – Whether trial judge’s directions caused a miscarriage of justice

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 5531

Crimes Act 1900 (ACT) ss 79, 81

Evidence Act 2011 (ACT) ss 97, 101, 102, 106, 192A

Supreme Court Act 1933 (ACT) s 37O(2)(a)(iii)

Cases Cited:

Bauer v The Queen (No 2) [2017] VSCA 176

BBH v The Queen [2012] HCA 9; 245 CLR 499

Dao v The Queen [2011] NSWCCA 63; 81 NSWLR 568

Edwards v The Queen (1993) 178 CLR 193

Festa v The Queen [2001] HCA 72; 208 CLR 593

GBF v The Queen [2010] VSCA 135

HML v The Queen [2008] HCA 16; 235 CLR 334

Hughes v The Queen [2017] HCA 20; 92 ALJR 52

IMM v The Queen [2016] HCA 14; 257 CLR 300

McPhillamy v The Queen [2018] HCA 52

Miles v The Queen [2014] NSWCCA 72; 240 A Crim R 524

Munro v The Queen [2014] ACTCA 11

O’Keefe v The Queen [2009] NSWCCA 121

Papakosmas v The Queen [1999] HCA 37; 196 CLR 297

Perry v The Queen (1982) 150 CLR 580

R v Bauer [2018] HCA 40; 92 ALJR 846

R v Ciantar [2006] VSCA 263; 16 VR 26

R v Ellis [2003] NSWCCA 319; 58 NSWLR 700

R v Ford [2009] NSWCCA 306; 273 ALR 286

R v Lane [2011] NSWCCA 157; 221 A Crim R 309

R v Mahoney [2000] NSWCCA 256; 114 A Crim R 130

R v Marsh [2017] ACTSC 55

Saoud v The Queen [2014] NSWCCA 136; 87 NSWLR 481

Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370

Parties:

Garry Leslie Marsh (Appellant)

The Queen (Respondent)

Representation:

Counsel

Mr S Odgers SC and Mr G Walsh (Appellant)

Mr S Drumgold (Respondent)

Solicitors

Greg Walsh & Co Solicitors (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 49 of 2017

Decision under appeal:

Court/Tribunal:              Supreme Court of the ACT

Before:              Refshauge J

Date of Decision:         20 March 2017

Case Title:    R v Marsh

Citation: [2017] ACTSC 55

Court File Number:     SCC 4 of 2016

Murrell CJ:

The appeal

1. In 1978, the appellant was the complainant’s Year 6 teacher at St Edmunds College.  DI was another student in the Year 6 class.  In 1979 and 1980, when the complainant, BL, was in Years 7–8 at St Edmunds, the appellant coached the complainant’s rugby union team. 

2. The appellant was convicted of sexual misconduct against the complainant between 1979 and 1980.  He appealed against the convictions.

3. On the appeal, the appellant pressed the following arguments:

   (a)         Ground 1.  In the pre-trial proceedings, R v Marsh [2017] ACTSC 55 (R v Marsh), Refshauge J erred in admitting the evidence of two uncharged behaviours (known as Incident 1 and Incident 3) as tendency evidence.  The first uncharged behaviour was that, in 1978, the appellant frequently touched boys in the complainant’s Year 6 class on the buttocks or crotch as a “joke” (Incident 1).  The second uncharged behaviour was that, in 1978, the accused observed naked Year 6 students as they showered (Incident 3).  The appellant said that the evidence of uncharged behaviours should have been excluded as it lacked significant probative value (s 97 of the Evidence Act 2011 (ACT) (Evidence Act)) and/or its probative value did not substantially outweigh its prejudicial effect (s 101(2) of the Evidence Act).

   (b)         Ground 2.  Burns J (the trial judge) erred in admitting the evidence of DI that, in the Year 6 classroom, the appellant engaged in “horseplay” by “flicking” DI in the groin area. 

   (c)         Ground 4.  The trial judge erred in directing the jury that alleged lies by the accused were capable of showing a consciousness of guilt.

4. I have had the benefit of reading Wigney J’s reasons.  His Honour sets out the relevant parts of the pre-trial and trial evidence, the decision in R v Marsh and the directions given by the trial judge.  I will not repeat them.

5. As to Ground 1—the tendency evidence Ground—my reasons and conclusion differ from those of Wigney J.  I would dismiss the appeal on that Ground. 

6. As to Ground 2, I would dismiss the appeal on the basis that no substantial miscarriage of justice has occurred, but my reasons for doing so differ from those of Wigney J.

7. As to Ground 4, for the reasons given by Wigney J the appellant should be granted leave to include Ground 4 in the notice of appeal, but the Ground should be dismissed.

General considerations affecting the tendency evidence

1. The advance rulings about the admissibility of evidence made by Refshauge J under s 192A of the Evidence Act did not prevent the trial judge from taking a different approach.  The appeal is to be decided by considering what occurred at the trial.

2. The trial proceeded not on the basis of the tendencies asserted in the original tendency notice, but on the basis of the tendency proposed by Refshauge J in R v Marsh at [89]:

   Mr Marsh had a sexual interest in the complainant and acted upon it by using his position as the complainant’s teacher and as the coach of the complainant’s rugby union team.

10. In R v Bauer [2018] HCA 40; 92 ALJR 846 (Bauer) at [61], the High Court said:

The question of whether tendency evidence is of significant probative value is one to which there can only ever be one correct answer, albeit one about which reasonable minds may differ.

11. Consequently, this Court should decide for itself whether the evidence of Incidents 1 and 3 (as adduced at the trial) had significant probative value and whether the probative value of the evidence substantially outweighed any prejudicial effect that it may have had on the appellant.

12. In Hughes v The Queen [2017] HCA 20; 92 ALJR 52 (Hughes) at [41] (Keifel CJ, Bell, Keane and Edelman JJ) and [91] (Gageler J) (recently affirmed in McPhillamy v The Queen [2018] HCA 52 at [26] (McPhillamy)), the High Court observed that the assessment under s 97(1)(b) of the Evidence Act of whether tendency evidence has significant probative value involves two steps: an assessment of the extent to which the evidence supports the existence of the asserted tendency (whether, by itself or with other evidence, the evidence strongly supports proof of the tendency); and an assessment of the extent to which that tendency circumstance makes it more likely that the alleged offence occurred (by strongly supporting proof of a fact that makes up the offence charged).

13. Wigney J accepts that the evidence of Incident 1 may show that the appellant had a tendency to have a sexual interest in Year 6 boys generally and to use his position to act on that interest.  However, his Honour concludes that the evidence lacks significant probative value for three reasons.  First, it does not indicate a specific sexual interest in the complainant, as opposed to Year 6 boys generally.  Second, it evidences a very general tendency.  Third, it concerns quite different and relatively innocuous conduct that occurred at an earlier point in time.  His Honour also concludes that any probative value is outweighed by the risk that the jury would give the evidence too much weight or otherwise misuse it to reason that the appellant was more likely have to have committed the offences because he was a sexual deviant. 

14. In relation to Incident 3, Wigney J accepts that the evidence is capable of showing that the appellant had a tendency to have a sexual interest in Year 6 boys generally.  However, his Honour concludes that the evidence lacks significant probative value.  First, it relates to Year 6 boys generally and does not indicate a specific sexual interest in the complainant.  Second, it does not show a tendency to act on any sexual interest (let alone in the ways alleged in the charges).  Third, Incident 3 “was both remote in time and of a significantly different order of gravity from the charged offending” and was otherwise not significantly linked to the charged conduct.  As with Incident 1, his Honour concludes that any probative value is outweighed by a significant risk that the jury would misuse the evidence or give it too much weight.

15. I have little doubt that, if established, a tendency on the part of the appellant to have a sexual interest in the complainant and to act upon it by using his position as the complainant’s teacher and as the coach of the complainant’s rugby union team would be strongly probative of whether the appellant committed the charged conduct.

16. Consequently, the issue is the extent to which the evidence of Incidents 1 and 3 supports the existence of the asserted tendency.

Should evidence of Incident 1 have been admitted as tendency evidence the trial?

17. The evidence of Incident 1 was properly admitted to support a tendency of the appellant to have a sexual interest in the complainant and to act upon it by using his position as the complainant’s teacher and as the coach of the complainant’s rugby union team.  It was significantly probative of that tendency.

18. The evidence was that, throughout 1978, in the Year 6 classroom, the appellant frequently touched or grabbed the genital areas (crotch and buttocks) of his students (including the complainant) on the outside of their clothing as a “joke”, albeit one that caused significant emotional discomfort to many of the students.

19. The appellant’s classroom behaviour was directed at the students generally, not only at the complainant.  However, that does not deprive the evidence of probative value.  Just as a person may have a dysfunctional sexual attitude towards a specific person, they may have a dysfunctional sexual attitude towards a particular category of people of which a specific person is a member.

20. The fact that the appellant presented the classroom touching as a “game” does not change the nature of the behaviour.  The appellant touched the genital areas of his young male students.  The expert witness, Dr Bragg, gave evidence that grooming (which she defined as the stepwise building up of a relationship and lowering of defences towards behaviours that might seem a little bit odd to a child) is often presented as a game, lowering the child’s resistance to something that might otherwise seem odd.

21. Incident 1 (which occurred in 1978) predated the alleged offences (which occurred in 1979 and 1980).  Inferentially, the classroom conduct occurred throughout 1978, i.e., continued until shortly prior to the alleged offences.  The Incident 1 behaviour was not remote in time from the offending behaviour.

22. Nor was the Incident 1 conduct innocuous by comparison with the charged conduct, such that it lacked significant probative value.  First, some of the charged conduct was, itself, relatively innocuous.  Second, on the prosecution case, Incident 1 was in the nature of grooming the appellant’s Year 6 male students (including the complainant), whereas the charged conduct occurred when the appellant was able to access the complainant in relative isolation from other boys; when tendency coincided with opportunity.  It is common sense that a perpetrator might feel more constrained when a group of boys is present.

23. There was no relevant “prejudicial effect” associated with the evidence of Incident 1.  The prejudice, if any, was associated with the probative value of the evidence.  Further, as the trial judge carefully directed the jury as to the manner in which the evidence could be used and cautioned them against any possible misuse of the evidence, any risk of misuse was effectively eliminated.

Should evidence of Incident 3 have been admitted as tendency evidence?

24. The evidence of Incident 3 was properly admitted to support a tendency of the appellant to have a sexual interest in the complainant.  When considered together with Incident 1, it was significantly probative of that aspect of the tendency.

25. At the trial, the evidence of Incident 3 did not go as far as anticipated; it did not support the proposition that the appellant had “stared” at naked boys or had otherwise taken a blatantly perverted interest in their physique.  Nevertheless, the evidence of the appellant’s insistence on being present when the boys were showering and his practice of consistent close and apparently unnecessary observation of the naked boys was strongly suggestive of such an interest.

26. The evidence of Incident 3 did not unambiguously support the existence of the asserted tendency.  It was not inconsistent with the over-enthusiastic but legitimate supervision of the boys while they showered.  However, the jury would have been entitled to conclude that the overwhelmingly likely explanation for such repeated and pointed behaviour was that, in 1978, the appellant had a tendency to be sexually attracted to his Year 6 students.

27. On the appeal, the appellant argued that, at most, the evidence of Incident 3 supported a tendency to have a sexual interest in boys generally, but it did not support any tendency to act upon a sexual interest.  Consequently—so it was submitted—the evidence lacked significant probative value.

28. The argument is rejected. It is true that thoughts of misconduct do not always lead to acts of misconduct. However, almost invariably, acts of misconduct are preceded by thoughts of misconduct. In allowing evidence both of tendencies to have a particular state of mind and tendencies to act in a particular way, s 97 of the Evidence Act recognises that thoughts of misconduct may be significantly probative of whether acts of misconduct occurred.

29. There was no relevant “prejudicial effect” associated with the evidence of Incident 3.  The trial judge made it clear to the jury that the evidence could be used only in a very limited way, thereby effectively eliminating any risk that the evidence would be misused.

Should DI’s evidence about classroom conduct have been admitted?

30. The appellant submitted that, in reality, DI’s evidence that the appellant sometimes engaged in “horseplay” and “flicked” him in the testicle/groin area was tendency evidence, and it should have been excluded as lacking probative value (or, at least, as lacking significant probative value) in accordance with the ruling of Refshauge J. Further, as the evidence was tendency evidence, the trial judge should have considered ss 97 and 101 of the Evidence Act before admitting the evidence, but his Honour had failed to do so.

31. In the course of the trial, the prosecutor accepted that DI’s evidence about classroom touching was not directly relevant to the asserted tendency to have a sexual interest in the complainant and to act upon it, because DI’s evidence was confined to the appellant touching DI himself. 

32. The trial judge did not admit the evidence as tendency evidence.  His Honour admitted DI’s evidence because it tended to support the complainant’s evidence that the appellant had touched students in the classroom.  When directing the jury, the trial judge did not treat DI’s evidence as tendency evidence.  Rather, his Honour informed the jury that the evidence had been led for a very narrow purpose, “purely to support the complainant’s assertion that the accused engaged in this sort of behaviour towards him”. 

33. It would appear that the trial judge admitted DI’s evidence for the purpose of bolstering the credibility of the complainant insofar as the complainant said that, as part of an ongoing “game”, the appellant touched the genital area of most students in the classroom. 

34. Prima facie, DI’s evidence was inadmissible as breaching the credibility rule: s 102 of the Evidence Act.  However, during the trial, the argument did not focus on that issue.

35. As it transpired, DI’s evidence could well have been admitted via a different route. In his evidence, the appellant denied that he had deliberately touched the complainant or any other student on the bottom or groin. Consequently, with leave, DI’s evidence could have been properly admitted under the s 106 exception to the credibility rule, i.e., to rebut the appellant’s denial of Incident 1.

36. I agree with Wigney J that the admission of DI’s evidence was of very little moment. For that reason, and also because the evidence may have been admissible via a different route, I am satisfied that the admission of the evidence gave rise to no substantial miscarriage of justice: s 37O(2)(a)(iii) of the Supreme Court Act 1933 (ACT).

Further observations

37. Arguably, the five tendencies identified in the original tendency notice would have created unnecessary complexity if the prosecution had sought to argue all five at the trial.  However, the manner in which the tendencies were narrowed (so that they referred only to the complainant rather than to boys generally) also caused difficulties, both at the trial and on the appeal. 

38. The Incident 1 evidence was best conceptualised as supporting a tendency to be sexually attracted to young boys of approximately the same age as the complainant and to act upon that attraction.  The Incident 3 evidence was best conceptualised as supporting a tendency to be sexually attracted to young boys of approximately the same age as the complainant.  The evidence plainly suggested that the appellant’s sexual interest in young boys extended well beyond the complainant to other students of a similar age.  In the case of the charged conduct, the difference was that interest coincided with opportunity.

39. In relation to the evidence of Incidents 1 and 3, the appellant enjoyed the benefit of directions that were generous.  The trial judge directed the jury that it could not use a tendency circumstance unless it was proved beyond reasonable doubt.  In addition, his Honour directed the jury that it could not use the evidence of Incidents 1 or 3 to establish a tendency unless satisfied beyond reasonable doubt that the conduct had occurred.  In part, his Honour said:

With regard to the allegations that the accused watched the boys showering and that he grabbed at their buttocks or crotch area in the classroom, you cannot use this evidence to find that the accused had the tendencies alleged by the Crown unless you are satisfied beyond reasonable doubt that he engaged in this conduct towards the complainant and that his reason for doing so was for sexual gratification.

If, for example, you are satisfied beyond reasonable doubt that he engaged in the alleged conduct of watching the boys, including the complainant, shower, but you think it possible that he did so for a nonsexual purpose, such as supervising them as their teacher, then you could not use that evidence to conclude that he had the tendencies alleged by the Crown.

Similarly, if you were satisfied, beyond reasonable doubt, that the accused engaged in grabbing at the crotch and buttocks of boys in the classroom, including the complainant, but you think it possible that he did so for a nonsexual purpose, for example, as a joke or a means of discipline or some such, then you could not use that evidence to conclude that the accused had the tendencies alleged by the Crown.

40. In Bauer at [86], the High Court said:

trial judges in [NSW] should not ordinarily direct a jury that, before they may act on evidence of uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt.  Such a direction should not be necessary or desirable unless it is apprehended that, in the particular circumstances of the case, there is a significant possibility of the jury treating the uncharged acts as an indispensable link in the chain of reasoning to guilt.

(footnotes omitted)

41. For these reasons, I would dismiss the appeal.

I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. 

Associate:

Date:

MOSSOP J:

42.           I agree with Wigney J that the appellant’s convictions should be set aside and that there should be a retrial.

43.           Although Ground 1 challenged the admission of tendency evidence generally, ultimately the appellant’s challenge was only to tendency incident 1 (conduct in the classroom) and tendency incident 3 (observing boys showering). 

44.           Ground 2 became a question of whether the challenged evidence, which related to conduct in the classroom, could have been admitted as tendency evidence.  Because of the very minor significance of the evidence the subject of Ground 2, had that been the only successful ground of appeal I would have found that there was no substantial miscarriage of justice. 

45.           I agree with Wigney J in relation to Ground 4 (the direction concerning lies) that leave to appeal should be given to raise this ground but the appeal on this ground dismissed. 

46.           My reasons for agreeing with Wigney J in relation to Grounds 1 and 2 are as follows.

47.           In the course of his reasons relating to the Crown’s application for a pre-trial ruling on the admissibility of tendency evidence, Refshauge J reformulated the relevant tendency so that it differed from the tendency identified in the Crown’s tendency notice.  His Honour’s reformulation (see R v Marsh at [89]) was “something along the lines of”:

that Mr Marsh had a sexual interest in the complainant and acted upon it by using his position as the complainant’s teacher and as the coach of the complainant’s rugby union team.

48.           It was that reformulated tendency which was relied upon at trial.  No application was made to reopen that ruling at the hearing so as to return the relevant tendencies to those which were originally asserted by the Crown. 

49. The reference to “significant probative value” in s 97 in the uniform evidence legislation (and in this case the Evidence Act 2011 (ACT)) involves what has been described as an “open-textured” formulation: Hughes at [42]. The critical issue that arises is what does “significant” mean. It has been given various synonyms such as “important” or “of consequence”: Dao v The Queen [2011] NSWCCA 63; 81 NSWLR 568 at [148]; IMM v The Queen [2016] HCA 14; 257 CLR 300 (IMM) at [46], [103]; Hughes at [81], [86], [215]. The introduction of the threshold of “significant” recognises that there may be evidence that is probative of a fact in issue but not significantly so. Where does the boundary lie between probative and significantly probative? It is relevant to consider three points.

50.           First, the content of the rule is informed by the reason for its existence.  Why is there a restrictive rule? The judgment of Gageler J in Hughes at [71]-[90] outlines the caution with which the common law treated tendency reasoning and the legislative history of the provisions in the uniform evidence legislation which reflect both a departure from the common law position as well as continuing caution in relation to the circumstances in which it may be used. As his Honour points out at [72]-[77] and [83], the provisions of the uniform evidence legislation have been fixed upon in the context of social science research and, in particular, the “inclination observable on the part of most persons to overvalue dispositional or personality-based explanations for another person’s conduct and to undervalue situational explanations for that conduct”: Hughes at [72].

51. It is in that context that it is necessary to give effect to the requirement in s 97 that tendency evidence have significant probative value. What is required by the standard of significance was explained by Gageler J as involving “enough to justify the ever-present risk that the objective probability will be subjectively overestimated”: Hughes at [87]. Put more colloquially, “the court must be comfortable that the evidence is of sufficient weight to justify the risk of the evidence unwittingly being given too much weight”: Hughes at [87]. This formulation tends to beg the question because it is dependent upon an understanding of the psychological evidence as to the extent of the risk of the evidence being given too much weight. Further, it is likely that the extent of the risk varies depending upon the subject matter of the tendency evidence in question. However, the formulation of Gageler J does emphasise the underlying psychological basis for the rule and the importance of the qualification in s 97 that the probative value of the evidence must be “significant”.

52.           Second, because of the indeterminate meaning of “significant” the reasons given in previous cases for reaching a conclusion that evidence has or has not reached the threshold of “significant probative value” will be reasons for the stated conclusion but often be unable to clearly articulate why the threshold is met or not met in a manner which further elucidates the content of the threshold.

53.           Third, given the first two points and the lack of legislative guidance, the decisions of the High Court have provided incremental guidance from which the boundaries between evidence with probative value and evidence with significant probative value may be discerned.  That this is not straightforward is illustrated by the difficulties that the High Court has had in articulating how evidence may satisfy the threshold of significance in different commonly arising categories of case.  However, by examining the decisions of the Court it is possible to obtain some guidance on the question: how significant is “significant”? It is therefore necessary to engage in that exercise.

54.           In Hughes, the significant probative value arose notwithstanding the circumstances of the various alleged offences differed and each “involved a high degree of opportunism” and, therefore, “might not be described as involving a pattern of conduct or modus operandi”: at [57]. The majority recognised that the evidence was of significant probative value because “the complaint of misconduct on his part should not be rejected as unworthy of belief because it appeared improbable having regard to ordinary human experience”: Hughes at [60]. In other words, although each individual act had features which considered separately would appear to be improbable, the tendency evidence comprising the other acts with other complainants was significantly probative because it showed a pattern of opportunistic and otherwise improbable acts.

55.           In IMM, the Court did not accept that the evidence in question had significant probative value. At some time after the alleged offences (which were of indecent dealing with a child and sexual intercourse with a child under 16), the accused ran his hand up the leg of the complainant over her shorts. The Court said evidence from a complainant used to “show an accused’s sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant’s account of the charged offences is true”: at [63]. A complainant’s unsupported evidence might meet the test of significant probative value if there are some “special features” of a complainant’s account of an uncharged incident giving it significant probative value: IMM at [62]-[63]. In Bauer at [57], the Court explained the reference in IMM to “special features” should be understood as “limited to a process of reasoning which sometimes applies in cases where an accused is charged with multiple sexual offences against a single complainant” and the tendency evidence involves “a single relatively remote and innocuous uncharged act”.  Therefore, the Court confined the statements in IMM to the particular “relatively exceptional circumstances of that case”: Bauer at [55].

56.           In Bauer, the Court spoke with one voice in a conscious attempt to provide clear guidance to trial judges and intermediate courts of appeal.  The Court said in cases involving multiple sexual offences alleged to have been committed against a complainant, “evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and … each uncharged act is admissible in proof of each charged act”: Bauer at [50]. In multiple complainant sexual offence cases, in determining whether evidence of offences committed against one complainant is significantly probative of the accused having committed an offence against another complainant, there must ordinarily be some feature linking the offending together. Absent such a feature, the evidence simply would demonstrate other offending against a different complainant and that is not ordinarily of significant probative value. The presence of some common feature may demonstrate a tendency to act in a particular way which increases the likelihood that the account of the offence under consideration is true: Bauer at [58]. The Court cited Hughes as an illustration of that proposition.  In cases where multiple offences are alleged against a single complainant, there is ordinarily no need for a particular feature.  An accused who has committed one sexual offence against the complainant in conjunction with evidence of another offence suggests that the accused has a sexual interest in or attraction to the complainant and a tendency to act upon it: Bauer at [60].

57.           The most recent decision of the High Court is McPhillamy.  In that case the accused, an acolyte, had been charged with six counts of sexual offences directed to an altar boy, “A”, in the public toilets of a cathedral.  They involved masturbation of himself and the boy, and oral sex.  The tendency evidence related to incidents some 10 years before when the accused was an assistant housemaster at a boarding school.  When a 12 or 13-year-old-boy (“B”) was homesick and upset, the accused had cuddled him and progressed to rubbing his genitals and, on another occasion, had “grabbed both [“B”’s] arse cheeks and tried to, you know, separate them so to speak”.  Another 12 or 13-year-old-boy, “C”, had given evidence of also becoming homesick and visiting the appellant in his room.  He had massaged “C”’s shoulders and back and then progressed to the groin area and touched his genitals.  On another occasion, he had massaged “C” who had fallen asleep and woke to find the accused kneeling beside him with his head near his groin and a wet sensation around his penis. 

58.           The principal judgment of the Court adopted what had been said in Hughes, namely, that the assessment of the probative value of the tendency evidence requires the Court to determine the extent to which the evidence is capable of proving the tendency and then assess the extent to which the proof of the tendency increases the likelihood of the commission of the offence: McPhillamy at [34]; Hughes at [41]. The judgment recorded that a mature man’s sexual interest in young teenage boys is a tendency to have a particular state of mind and it was not disputed that an interest of this kind is likely to be enduring: McPhillamy at [26]. The judgment recognised that this may meet the basal test of relevance but stated that it would not be capable of meeting the requirement of significant probative value. That was because it was the tendency to act on the sexual interest that gives the tendency evidence in sexual cases its probative value: McPhillamy at [27].  The judgment stated that: “In the absence of evidence that the appellant had acted on his sexual interest in young teenage boys under his supervision in the decade following the incidents at the College, the inference that at the dates of the offences he possessed the tendency is weak”: Hughes at [30]. The judgment went on to state (at [31]):

Moreover, where, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together. 

59.           The principal judgment did not accept that the vulnerability of the students provided a linking feature.  Rather, it characterised the tendency evidence as establishing “no more than that a decade before the subject events the appellant had sexually offended against each of them” and that proof of that offending “was not capable of affecting the assessment of the likelihood that the appellant committed the offences against “A” to a significant extent”: McPhillamy at [32]. The two features of most significance in the principal judgment appear to have been the temporal remoteness of the tendency evidence because of the absence of evidence that the accused had acted upon any interest in the decade since and the absence of any feature of the tendency conduct which linked it to the offending conduct alleged.

60.           The concurring judgment of Edelman J described the support for the existence of the tendency as not strong because it was given by only two witnesses and the events involving those witnesses occurred 10 years before.  Next, he said that because the tendency was expressed at a high level of generality it only provided weak support for the alleged offending.  His Honour pointed out that the alleged tendency did not relate to any particular manner in which he was said to have abused his authority.  Nor was the tendency specific such as involving acting impulsively with a risk of detection.  Nor was there any similarity between the alleged offences.  The combination of the weakness of the support for the evidence for the alleged tendency and the weakness of the support that the tendency had for the alleged offences denied, in his Honour’s view, the evidence significant probative value.

61.           The present case involves multiple charges relating to a single complainant.  In the light of the decision in Bauer, the appellant did not press ground of appeal which challenges the cross-admissibility of the evidence relating to each of the charged acts. 

62.           In my view, the challenged tendency evidence in the present case did have probative value and hence met the threshold of relevance.  There is a chain of reasoning by which the evidence would support the commission of the offences.  A jury might accept the evidence of classroom conduct (tendency incident 1) and the evidence of observing boys showering (tendency incident 3) as evidence that the accused had a sexual interest in boys in his class and was prepared to act upon that interest in the manners disclosed.  A jury might also conclude that it is unusual for a male schoolteacher to have a sexual interest in his young male students and a willingness to act upon that interest.  A jury might reason that a person with a sexual interest in boys in his class who was prepared to act in some way upon that interest would be more likely to have a sexual interest in one of those boys and be prepared to act upon that interest.  Those tendencies would then make it more likely that he was prepared to commit the offences with which he was charged.

63.           As will be apparent from the above, because of the manner in which the tendency was articulated, being a tendency to have a sexual interest in the complainant, the evidence consistent with him having a sexual interest in boys in his class generally was only indirectly supportive of that tendency. 

64.           When it comes to considering the extent to which the tendency makes more likely the facts making up the charged offences, regard must be had to the generality of the tendency alleged.  It is simply a preparedness to act upon that general tendency which is relied upon without there being any linking feature between the tendency and the conduct alleged.  Because of the generality of the tendency alleged, the support that it could provide for the doing of the acts alleged was less than would have been the case if the tendency was more specific and bore a closer relationship to the acts alleged. 

65.           These difficulties arose because the uncharged acts relied upon as tendency evidence arose in very different circumstances from the charged acts.  Most obviously, they were acts or conduct which occurred in the presence of numerous students and, to the extent to which a jury may have concluded that they demonstrated a sexual interest, it was a sexual interest in the boys in the class generally rather than the complainant in particular.  The acts or conduct were also of a very different nature to the charged acts.  The classroom incidents involved sexually inappropriate touching but no overt sexual acts or touching of the skin.  In contrast, even the least serious of the charged acts involved skin on skin touching of the genitals in private.  Similarly, the shower incidents involved simply making observations of showering boys which a jury might conclude was sexually motivated but no physical acts beyond that.

66.           In the present case, the probative value was greater than the evidence in IMM.  It predated the charged incidents.  It involved more than a single isolated incident.  However:

(d)         it was conduct directed to boys in the appellant’s Year 6 class generally;

(e)         it was conduct temporally separate (although not clearly remote) from the charged incidents;

(f)          in so far as it involved acts on the part of the appellant, the acts were of a very different character to the charged acts.

67.           In my view, the conclusion in the present case is similar to that articulated by Edelman J in McPhillamy.  The weakness of the support for the alleged tendency combined with the weakness of the support that the tendency had for the alleged offences had the effect that the evidence was not of significant probative value.

I certify that the preceding twenty six [26] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date:

WIGNEY J:

68. In August 2017, the appellant, Garry Leslie Marsh, stood trial before the trial judge and a jury on 12 counts of indecent assault and one count of buggery contrary to s 81 and s 79 of the Crimes Act 1900 (ACT) respectively. There was a directed acquittal on one count of indecent assault and the jury returned a verdict of not guilty on another. The appellant was found guilty and in due course convicted of all the remaining counts. On 15 December 2017, the trial judge sentenced the appellant to an aggregate term of imprisonment of eight years, with a non-parole period of four years.

69. The appellant appealed his conviction on three grounds.  The first two grounds relate to the admission of tendency evidence.  The remaining ground (ground 4 in the notice of appeal) concerns the trial judge’s direction to the jury concerning lies told by the appellant.  A fourth ground (ground 3 in the notice of appeal) was not pressed.

70. For the reasons that follow, the appeal must be allowed and an order should be made that the appellant be retried.

Summary of relevant facts

71. The appellant was a primary school teacher at St Edmunds College, Griffith, throughout the 1970s.  He was also a rugby union coach at that school.

72. The complainant in respect of each of the counts in the indictment (BL) was a pupil at St Edmunds College, relevantly in 1979 and 1980.  At that time he was 11 to 13 years old.

73. The Crown case was that, on numerous occasions between 1979 and 1980, the appellant engaged in sexual activity with BL.

74. Count 1 in the indictment concerned an allegation that the accused put his hands down BL’s pants and touched his testicles when BL suffered an injury in the groin area during a game of rugby.  The appellant was found not guilty on this count.

75. The indecent assault which was the subject of count 2 occurred after the rugby game.  The appellant drove BL and another boy to his home after the game.  At BL’s house, the appellant took BL into his bedroom purportedly to check his groin and again touched his testicles.  The appellant was convicted on this count.

76. Count 3 concerned an incident which also occurred while the appellant and BL were in his bedroom after the rugby match.  Shortly after he touched BL’s testicles, the appellant inserted his fingers into BL’s anus.  The appellant was convicted on this count.

77. The incident the subject of count 4 also occurred in the appellant’s bedroom soon after the incidents the subject of counts 2 and 3.  The appellant put BL’s penis into his mouth.  The appellant was convicted on this count.

78. The incidents the subject of counts 5, 6 and 7 occurred about a week later.  The appellant drove BL to his, the appellant’s, home after rugby training and again took him into his bedroom.  There he put his finger into BL’s anus (count 5), put BL’s penis into his mouth (count 6) and put BL’s hand on his, the appellant’s, penis and used BL’s hand to stroke himself until he, the appellant, ejaculated (count 7).  The appellant was convicted on each of counts 5, 6 and 7.

79. The incident the subject of count 8 occurred a few weeks later.  The appellant again drove BL to his, the appellant’s, home after school.  There, the appellant took BL into his bedroom and again put BL’s hand on his, the appellant’s, penis and used BL’s hand to stroke his penis.  The appellant was convicted on this count.

80. Count 9 concerned an incident which occurred in the appellant’s classroom at the school a few weeks later.  The appellant and BL were alone in the classroom and the appellant again put BL’s hand on his, the appellant’s, penis, and once again, used it to stroke himself until he ejaculated.  The appellant was convicted on this count.

81. The incidents the subject of counts 10 to 13 occurred when BL stayed overnight at the appellant’s house at the appellant’s request and with the permission of BL’s mother.  The appellant put his fingers into BL’s anus (count 10), inserted his penis into BL’s anus (count 12) and got BL to masturbate him until he, the appellant, ejaculated (count 13).  Count 11 concerned an allegation that the appellant made BL stroke his, the appellant’s, penis on the occasion that he stayed at the appellant’s house.  Ultimately, however, BL did not give evidence to that effect at the trial and the trial judge directed a verdict of not guilty in relation to it.  The appellant was, however, convicted in respect of each of counts 10, 12 and 13, count 12 being the buggery count.

The tendency evidence

82. Prior to the trial, the Crown served an Amended Notice of Intention to Adduce Tendency Evidence (the Notice) and applied for leave to adduce the evidence referred to in the Notice at the trial.  The Crown’s application was heard and determined by Refshauge J who, as events transpired, was ultimately not the trial judge. 

83. The incidents identified in the Notice included the incidents which were the subject of the 13 counts in the indictment.  The Notice also identified 6 other incidents referred to as “uncharged acts”.  The incidents identified in the Notice were said to establish that the appellant had the following tendencies:

That the accused had a tendency to have a particular state of mind, namely:

(a)         To have a sexual attraction to in [sic] BL.

(b)         To have a sexual attraction to young boys.

That the accused had a tendency to act in particular ways, namely:

(c)         To act on his sexual attraction to BL.

(d)         To act on his sexual attraction to young boys.

(e)         To take advantage of his teacher and coach relationship with young boys to gain access to them.

84. Refshauge J held that evidence concerning all the incidents the subject of the counts in the indictment and some of the evidence concerning some of the uncharged acts was admissible as tendency evidence: R v Marsh.  This determination was made on the basis of relevant witness statements concerning the incidents which were tendered without objection by the Crown.  His Honour found that the relevant tendency was “something along the lines of the following: that Mr Marsh had a sexual interest in the complainant and acted upon it by using his position as the complainant’s teacher and as the coach of the complainant’s rugby union team”: R v Marsh at [89].

85. This appeal concerns the evidence relating to two of the uncharged acts which was held to be admissible.  It also initially concerned the cross-admissibility of the evidence concerning the incidents the subject of each of the counts in the indictment.

Incident 1 – Touching students on the buttocks or crutch

86. The first of the relevant uncharged acts (incident 1) was described in the Notice in the following terms:

During 1978 the accused touched several Year 6 students on their bottom or crotch, outside their clothes, on a daily basis.  This occurred several times a day to several students in the class room.

87. The evidence that was said to prove that incident came from BL and another witness, referred to as DI, who was also a pupil in the appellant’s class at the same time as BL.

88. BL’s statement referred to the incident in the following terms:

Throughout Year 6 Marsh would stand close to talk to you, he regularly touched students on the bum or on the crutch, outside of the clothes, he would do this on a daily basis.  He made it into a bit of a game, and made it like he was trying to catch you off guard.  He would do it several times a day to several students.  It happened so often it was just normal behaviour in our class room.

89. CH’s statement included the following evidence of this incident:

In the classroom Marsh would whack me on the groin.  He would do this on the outside of my clothing.  It was like a flick of his wrist and it would hurt.  This was a frequent thing he did to me.

90. Refshauge J held that BL’s evidence of this incident was admissible as tendency evidence, however DI’s evidence was not.

91. His Honour appears to have admitted BL’s evidence concerning this incident because there was other evidence of “frequent touching”: R v Marsh at [96]. That evidence was apparently the evidence concerning incident 3, which related to the appellant watching the boys while they showered, and evidence that the appellant had admitted that “he would cup a student’s testicles if they had been hit there [during a rugby game] to relieve pressure”. Thus, it would appear that Refshauge J considered that BL’s evidence concerning incident 1 had significant probative value if viewed together with other evidence which his Honour considered tended to establish the relevant tendency.

92. CH’s evidence concerning this incident was held to be not admissible because it was limited to what the appellant did to DI, not to the other boys, did not “seem to have any unsuitable sexual overtones” and was “not particularly probative of the incident as asserted”: R v Marsh at [92]-[93]. His Honour also appears to have considered that the evidence would have an “unfair prejudicial effect” because it suggested inappropriate conduct by Mr Marsh, albeit not behaviour with any “significant sexual overtone”: R v Marsh at [94]-[95].

93. While Refshauge J’s determination was made on the basis of BL’s witness statement, it is more important to consider the evidence that BL ultimately gave at trial concerning the incident.  While the appeal grounds were directed at errors said to have been made by Refshauge J in ruling that the evidence was admissible, the more significant question is whether the evidence led at trial, if wrongly admitted, gave rise to a miscarriage of justice.  BL’s evidence at trial concerning this incident was as follows:

Now, what did you – what do you remember about Mr Marsh when he was your Year 6 teacher?---Yes.  Mr Marsh was fairly easy going as a teacher.  He was well liked by a lot of the students and staff at the time.  His – I suppose his classroom manner was a bit more relaxed than some of the other teachers.  There were things that – I suppose, that I look back at now and at the time that – he used to play games with the students quite a bit.  Some of those games in the class was that he would try and pinch you on the bum or grab at your crutch – and he would do that with all the boys – and if you went up to his desk he would try to grab at you and – it became like a bit of a game.  So you were always very cautious when you were sort of going near his desk because he would catch you and grab hold of your crutch or grab hold of your bum.

And how often would he do that?---It was like an everyday thing.  It was a constant.  So after a while you became a bit more, I suppose, in tune with it.  So you would make sure that you stood a distance away or you got to the front of his desk, or whatever, so that he couldn’t grab hold of you, or whatever, or touch you or what have you.

And when you say it was – became a bit of game, what do you mean by that?---It was made out to be a bit of a game.  It was a bit like, “Hi” – you know, “Beauty”, and he would grab you on the bum or grab you on the crutch and go, “Ah, I’ve gotcha.” It was that sort of thing – and it was kids; you know? We just used to muck around and thought was a bit funny.

And did that ever happen to you?---Yes.  Yes.  Absolutely.  It probably would have happened to most of the boys in the class at some stage.

And how did you react when that happened?---Well, because you’re in that – I suppose, in that – the group or the class, it’s like that peer pressure thing.  You sort of just go along and play along with it – and that was, you know, pretty much, you just played along with it and, you know, “Oh, yeah, yeah.  No worries.  You got me” and you would just be a bit more cautious the next time.

And how did other kids react if it happened to them?---Yes.  Look, there were some similar responses.  Other boys were a bit more – a bit more - probably “aggressive” about it is the wrong word.  Probably a lot more cautious about it and certainly didn’t appreciate it and didn’t quite get the joke.  You know, in hindsight I probably – yes.  Anyway – but, yes, it was (indistinct) that was the - - -

Okay.  So Mr Marsh at that time was your class teacher in Year 6.  So he took you for all lessons through the day; is that right?---Yes.  Correct (indistinct) the time.  So he would take through (indistinct) you know, maths, English, whatever else – PE – those sort of things as well.  So we would do PE, and stuff, with him also.

94. Despite the fact that Refshauge J had ruled that DI’s evidence concerning this incident was not admissible as tendency evidence, ultimately the trial judge permitted the evidence to be led on the basis that it supported BL’s evidence that the appellant engaged in that type of conduct.  The admission of DI’s evidence is the subject of ground 2 of the appeal.

Incident 3 – Watching the boys shower

95. The second of the relevant uncharged acts (identified in Refshauge J’s judgment as incident 3) was described in the Notice in the following terms:

On other occasions in 1978 during physical education classes the accused insisted that students wait until he was in the room before showering after class.  The showers were open plan and the accused stood and watched the students shower and redress.

96. The evidence that was said to prove this incident came from BL, DI and Brother Robert Wallace, who was the principal of the school between 1979 and 1988.

97. BL’s witness statement contained the following evidence concerning this incident:

We would have physical education once or twice a week.  The whole class would participate and we would get changed to [sic] into our sports uniform before the class and then shower and change back into our regular uniform after.  Marsh insisted that we wait until he was there in the room to shower.  The showers were open plan with no real cubicles like a C shape with a dividing wall in the middle, between the showers and the change rooms.  He stated at the time that he had to be there to supervise to ensure we all showered properly and were doing the right thing.  He would stand and watch us all shower and redress.

98. CH’s statement contained the following evidence:

I recall that in year six we used to shower after PE.  Marsh would insist that no one take towels into the showers.  He would come with us to the showers and he would sit right at the entry to the shower area and you had to go past him to get in and out of the shower area.  This spot gave him a clear view of the shower area and to get from the showers to the cubicles where our towels were you had to walk past Marsh whilst naked.  In high school I do not recall teachers ever entering the shower area.

99. Brother Wallace’s statement included evidence that it was normal for a teacher who was coaching a team to wander in and out of the changing rooms after sport “to ensure the boys weren’t mucking around”.  There was, however, no need for the teacher to go near the showers unless they heard something or for some other specific reason. 

1. Refshauge J’s determination concerning the admissibility of the evidence concerning this incident was again made on the basis of the witness statements.  His Honour held that while the evidence concerning incident 3 “only goes to prove part of the asserted tendency, that does still give it a significant probative value in combination with the other evidence”: R v Marsh at [105]. It is unclear exactly what part of the asserted tendency this evidence tended to prove. At its very highest, it appeared to be capable of proving no more than that the appellant had a tendency to have a sexual attraction to young boys.

2. It is again important to have regard to the evidence given at trial in relation to this incident for the purposes of assessing whether, if wrongly admitted, it gave rise to a miscarriage of justice. 

3. BL’s evidence at trial concerning this incident was as follows:

   Yes.  And what was the usual routine when you had your PE lessons? What did the – what did you have to do?---So you would leave the classroom; you would do PE; you would go to the gym or the changeroom area; you would get changed - or sometimes we did it in our close [sic], but most of the time we got changed because we were young smelly boys, I suppose, at that stage.  So we would get changed into our sports gear and then do PE, whether it be in the gym or outside or running around on the oval or whatever it was we were doing.  We would then finish the PE and we would have to go back in – and Mr Marsh was always pretty keen that we all have showers – was petty adamant that we all had to have showers and get changed – and during that time, of course, he would – he would make quite a point of being in the room when we were having the showers, and would supervise us having the showers, making sure that we all went in.  So the shower room was pretty open.  I suppose it’s like a – I don’t know.  It’s like a big room, with showers on one side – and we would have a shower or we would – you would get changed, get out of your gear, grab your towel and then walk into the shower recess type area – and Mr Marsh would always be standing there watching all the boys get undressed and actually go into the showers – and he would make quite a point of making sure that we all got under the showers when he was there. 

4. CH’s evidence at trial was:

   So after the activity, the physical activity what was then the usual routine?---Just shower and go back to class, depending what time of day.

   So just talking about the shower block under the hall what was the lay out of that shower block?---It’d be an open room like it is here, the main door say would be there and the shower block would be that end.

   Were there cubicles?---Yes.

   Did the cubicles have doors to them?---No.

   Did you have towels, did you bring towels?---We brought towels, yes.

   So when you went into the change room what did you do after sport?---Just undressed and had a shower.

   So you’d undress, what would you do with the towel?---We’d have to leave it at our bags.

   Then you’d walk into the showers?---Yes.

   So you would be walking along naked?---Yes.

   When you were having a shower where was Mr Marsh?---He was generally seated as you walked into the shower cubicle on a chair.

   Did he say anything about why he had to be in the shower room?---Why he had to?

   Yes?---No.

   Did you have any other teachers who took you for PE in Year 6?---In Year 6, no.

5. Brother Wallace’s evidence at trial concerning showering was as follows:

   Now, what level of supervision would you expect teachers to give when boys were using the change rooms and the showers?---Teacher would have to be around the change room.  Often either just talking to them like if it was showering after a game they might be chatting to individuals about the game or just wandering in and out to see that they weren’t misbehaving and that they were changing quickly.

   What about going into the shower area itself?---In general that would be rare.  There’s no reason to go in there unless you heard of a disturbance taking place.

Cross-admissibility of the evidence relating to each of the counts

1. Refshauge J acknowledged that the evidence concerning each of the separate incidents which were the subject of the counts in the indictment was primarily the uncorroborated evidence of BL: R v Marsh at [125]. His Honour noted, however, that the appellant had made the admission, referred to earlier, about cupping a student’s testicles if he was injured during a rugby game, and that the evidence of DI provided “some degree of support”: R v Marsh at [126]. While it is somewhat unclear, the reference to DI’s evidence appeared to be a reference to DI’s evidence concerning incident 3 (watching the boys shower).

2. Refshauge J reasoned that the appellant’s admission and DI’s evidence concerning incident 3, together with the fact that BL gave evidence of “multiple dealings and contacts”, meant that “the relevant threshold [was reached] that permits the evidence of each count to be admissible as tendency evidence in respect of each other count”: R v Marsh at [127].

The trial judge’s directions concerning tendency evidence

1. The trial judge gave detailed directions to the jury concerning the use of the tendency evidence.  There was no complaint at trial concerning those directions.  Nor are they the subject of any ground of appeal.  In considering the appeal grounds concerning the admission of the tendency evidence, however, it is instructive to consider what was said to the jury about the evidence.

2. The trial judge’s directions concerning the tendency evidence and tendency reasoning was as follows:

   However, there’s another matter that the Crown says that you should take into account when examining each charge in order to determine the guilt or innocence of the accused on that charge.  The Crown says that the evidence establishes that the accused at the time of these events had a tendency to have a particular state of mind, being a sexual attraction towards the complainant.

   The Crown also says that the evidence establishes that the accused at the time of these events had a tendency to act in a particular way and that is a tendency to use his position as a teacher and also as a rugby coach to act on his sexual attraction to the complainant.  Before you may use either of these tendencies in reasoning that the accused is guilty [of] one or more of the charges against him, you must be satisfied beyond reasonable doubt that he held those tendencies.

   So that’s a matter about which you have to be satisfied beyond reasonable doubt.  Of course, you can’t be satisfied of the second alleged tendency being the tendency to act on a sexual attraction to the complainant unless you are first satisfied that he held the first alleged tendency, being a tendency to be sexually attracted to the complainant.  You can’t, of course, be satisfied that there is a tendency to act on a sexual attraction to somebody unless you’re also satisfied that there was a sexual attraction to that person.

   You must first be satisfied beyond a reasonable doubt of the first tendency alleged by the Crown, that is that the accused was sexually attracted to the complainant.  If you are satisfied of that then, of course, you can take that fact into account when you consider whether he is guilty or the charges against him looking at each charge separately.  If you are satisfied of the first tendency, you turn your mind to the second tendency and if you are satisfied of the second alleged tendency beyond reasonable doubt you may also take that into account when determining with respect to each charge whether you are satisfied beyond reasonable doubt that the accused is guilty with respect to that charge.

   There are some important things that I must tell you about how you may and may not use evidence that the accused has those tendencies, if indeed you are ultimately satisfied that he did.  Before you may use the fact that the accused had these tendencies to prove that he committed one or more of the offences with which he’s charged you must be satisfied, of course beyond reasonable doubt, that he had the tendencies.

   As I’ve told you, you must be satisfied to that standard of beyond reasonable doubt.  If you are satisfied that he had these tendencies you may use the fact that he had those tendencies in deciding whether he did the acts alleged by the Crown as constituting each of the charges and whether any potentially ambiguous act was done for a sexual purpose.

   The acts that the Crown relies upon to prove that the accused had these tendencies are those acts which constitute the charges themselves and the evidence that the accused would watch young boys in his class, including the complainant, shower after physical education and that he would grab at the buttocks and crotch of the boys in his class, including the complainant.

   It follows from what I have said that before you can be satisfied, beyond reasonable doubt, that the accused had the tendencies alleged by the Crown you must be satisfied, beyond reasonable doubt, that he is guilty of one or more of the offences with which he is charged or that you are satisfied, to the standard of beyond reasonable doubt, that he watched the complainant showering for a sexual purpose or that he grabbed at the buttocks or crotch of the complainant for a sexual purpose.

   With regard to the allegations that the accused watched the boys showering and that he grabbed at their buttocks or crotch area in the classroom, you cannot use this evidence to find that the accused had the tendencies alleged by the Crown unless you are satisfied beyond reasonable doubt that he engaged in this conduct towards the complainant and that his reason for doing so was for sexual gratification.

   If, for example, you were satisfied, beyond reasonable doubt, that he engaged in the alleged conduct of watching the boys, including the complainant, shower, but you think it possible that he did so for a non-sexual purpose, such as supervising them as their teacher, then you could not use that evidence to conclude that he had the tendencies alleged by the Crown.

   Similarly, if you were satisfied, beyond reasonable doubt, that the accused engaged in grabbing at the crotch and buttocks of boys in the classroom, including the complainant, but you think it possible that he did so for a non-sexual purpose, for example, as a joke or a means of discipline or some such, then you could not use that evidence to conclude that the accused had the tendencies alleged by the Crown.

   If you cannot be satisfied, beyond reasonable doubt, that the accused had the tendencies alleged by the Crown then you put aside any suggestion that he had these tendencies and consider whether the Crown has proven him guilty with respect to each charge based upon the evidence which is relevant to that charge.

   If, for example, you are satisfied that the accused was guilty of one or more of the offences with which he is charged the only way in which you could use the fact that he was guilty of one charge, in order to establish his guilt with respect to the remaining charges, is by finding that based upon the charge that you have found proven he had one or more of the tendencies alleged by the Crown and then you take that tendency into account in considering the other charges.

   You must not, for example, reason that because he has committed one offence he is likely to have committed others or that if he has committed one crime he is a person of bad character and, therefore, likely to have committed others.  It is only if the evidence establishes, beyond a reasonable doubt, the tendencies that the Crown alleges, that you can use the fact that he has tendencies or has such tendencies in determining whether the remainder of the charges are proved.

   Now, I direct you that, as a matter of law, you cannot use any of the evidence, including the evidence of the accused watching the boys shower and of him grabbing at the boys’ crotches and buttocks in the classroom, to reason that the accused was sexually attracted to young boys generally and, therefore, may or must be guilty of the charges against him.

   The tendencies alleged by the Crown are quite specific and they relate to the complainant.  The tendencies are, as alleged by the Crown, that he was sexually attracted to the complainant and that he used his position as a coach and as a teacher to act upon that sexual attraction to the complainant.

1. As can be seen, the directions were put on the basis that the asserted tendency, the tendency which was said to be established by the relevant tendency evidence, was that the appellant had a sexual attraction towards BL and had a tendency to use his position as a teacher and rugby coach to act on his sexual attraction to BL.

2. The trial judge’s directions concerning DI’s evidence concerning the first incident are referred to later in the context of the second ground of appeal.

The trial judge’s directions concerning lies

1. In his interview with the police, the appellant denied that he had ever driven boys home in his car, denied that any boy had been at his house other than BL, and denied that any boy ever slept overnight at his house.  A witness referred to as RM, however, testified that the appellant would occasionally give him and other boys lifts home after football training and that he had visited the appellant’s home with BL.  BL’s mother testified that BL had stayed overnight at the appellant’s house on one occasion.  That evidence was capable of proving that the statements made by the appellant to the police concerning those three matters were false. 

2. In his evidence, the appellant conceded that each of those three things may have occurred, but said that he had no memory of them.  He denied “deliberately” or “intentionally” lying to the police about those matters and denied that he did so because he knew that if he told the truth about them it would implicate him. 

3. The Crown submitted to the jury that the appellant lied to the police about each of the three matters because telling the truth about them would have implicated him in the offences and that this showed consciousness of guilt on the part of the appellant.

4. The trial judge gave detailed directions to the jury concerning how they should approach the alleged lies and the Crown’s submission concerning them.  While ground 4 does not specifically challenge the directions, it is nevertheless important to consider the bases upon which the alleged lies were put to the jury.  The trial judge’s directions should accordingly be set out in full:

   In her final address to you the crown prosecutor referred you to a number of instances in which the accused, she said, told lies.  There are a number of things that I have to say to you about that.  Firstly, in the interview with the police the crown prosecutor says that the accused told three different lies based upon which, if you are satisfied that they are lies, you could infer that the accused is guilty of the charges against him.  This is what she referred to as consciousness of guilt.  Those lies were that the accused said in the record of interview with the police that no boy had ever slept overnight at his house, that no boys came to his house and that he didn’t drive boys in his car.  The Crown says that these are lies because the complainant did, in fact, stay overnight, one night, at the accused’s premises, that other boys and the complainant did come to his house and that the accused did drive boys in his car.

   Now, first you must be clear, before we talk about how you can use a lie, you must be clear about what a lie is and what it is not.  A lie is to say something untrue, knowing at the time of making the statement that is it untrue.  If a person says something which is untrue, but doesn’t realise at the time that it is untrue, then that’s not a lie.  The person is simply mistaken or perhaps confused.  Even if the person later comes to understand or realise that what they had said earlier was incorrect that does not transform that earlier statement into a lie.  To be a lie the person must say something that the person knows, at the time they are making the statement, is untrue.

   Now, if you find that the accused lied in one or more of the ways that I have just referred to, that is in one or more of those statements about no boy having ever slept overnight, about him not having had any boys at his house and about him not driving boys in his car, if you find that one or more of those statements was a lie then I have to give you directions about the care with which you must approach the task of deciding what significance, if any, that lie has.  You may take that lie into account as evidence of the accused’s guilt but you can only do so if you find two further things, which I will refer to in a moment.

   When I say you can take it into account as evidence of his guilt, I am not suggesting that it could, on its own, prove his guilt.  What I mean is that it can be considered, along with all of the other facts that the Crown relies upon, and which you will find established, in considering whether the Crown has proved its case beyond reasonable doubt.  The Crown does not suggest that if you find the accused told one or more of those lies that that fact, in itself, can prove the guilt of the accused with respect to one or more of these charges.

   Now, I told you that before you could use such a lie as evidence relevant towards the guilt of the accused you need to be satisfied of two further things, and I’ll deal with that now.  Apart from the fact that the accused made the statement and that it amounted to a lie, before you can use this lie as some evidence of the accused’s guilt you must be satisfied of two things.  First, you must be satisfied what the accused said that amounts to a lie relates to an issue that is relevant to the offence the Crown alleges that he has committed.  It must relate to some significant circumstance or event connected with the alleged offences.

   Secondly, you must find that the reason he told you that lie is because he feared that telling the truth might reveal his guilt in respect of those charges which related to the charges; in other words, he feared that telling the truth would implicate him in the commission of those offences for which he is now on trial.

   Now, the Crown says that the statement by the accused in the record of interview that no boy ever slept overnight at his house, firstly was a lie because the complainant had slept at his house and the accused knew that the complainant had slept at his house.  The Crown says that it relates to an issue that is relevant to the charges because it is alleged that the, a number of offences, a number of the charges that the accused faces arise out of that incident in which the complainant slept overnight at his house.

   The Crown says that the accused told this lie because he knew that if he told the truth about the complainant having slept overnight at his house it would implicate him in the commission of the offence because it would mean that it was supporting the allegation that there had been an opportunity for the accused to have committed the offence or the offences in the way in which the complainant alleges.  The second lie was that the accused told the police that there had been no boys at his house.

   Again the Crown says that this was a lie because there had been boys at his house and the accused knew it.  The Crown says that that was relevant in that, again he knew that some of these offences had occurred at times when the complainant had been at his house and that it was, the reason that he lied was because he realised that telling the truth would implicate him in the commission of offences because he would realise that it would support the proposition that he had had an opportunity to commit the offences as alleged by the complainant.

   The third was that he, the lie alleged by the Crown was that he didn’t drive boys in cars.  Now again, the Crown says that’s a lie because he did.  He says, the Crown says that he knew he did and the Crown says that the reason, I withdraw that.  The Crown says that it relates to a relevant circumstance because it is alleged that on a number of occasions he drove the complainant to his house before the offending occurred.  The Crown says that the reason why he told the lie was because he knew that telling the truth would tend to implicate him in the commission of the offences because it would mean that he was accepting that there was an opportunity for these offences to have occurred.

   Of course, the accused says that he didn’t really understand or know what was going to be asked of him when he went to the interview with the police.  He said he was questioned about events that had taken place 35 years or so earlier.  Of course, before you can be satisfied that what the accused said was a lie, as I’ve told you you must be satisfied that that he deliberately told an untruth, something that he knew at the time that he said it was not true.  If he was confused or if his memory was affected by the passage of time such that what he said at the time was his best recollection, if that’s a possibility then of course you cannot use any of those statements as a lie.

   You must remember, of course, that people do not always act rationally and that the telling of a lie, if indeed you are satisfied that he hold a lie, may sometimes be explained in other ways.  A person may have a reason for lying quite apart from trying to conceal their guilt.  For example, a lie may be told out of panic to escape an unjust accusation, to protect some other person or to avoid a consequence unrelated to the offence.  If you think that a lie may have been told for some reason other than to avoid being implicated in the commission of an offence for which the accused is now on trial then it cannot be used as evidence of the accused’s guilt.

   If that is the case, you should put to one side any question of lies as evidence of guilt and focus your deliberations upon the other evidence in the case.  Let me summarise what I’ve just said.  Before you can use what the accused said as something which points towards his guilt you must be satisfied that he lied deliberately.  You must find that the lie related to some significant circumstance or event connected with the alleged offence.  You must find that the reason that the accused told the lie was because he feared that the truth would implicate him in relation to the commission of an offence with which he is charged and for which he is now on trial.

5. The appellant’s counsel did not raise any complaint concerning this part of the trial judge’s summing up, or apply for or request the trial judge to give any additional or alternative directions concerning lies.  The trial judge did, however, correct one aspect of the direction at the request of the Crown prosecutor.  That redirection is considered in the context of ground 4. 

Appeal grounds and submissions

1. Ground 1 of the appellant’s notice of appeal is that “Refshauge J erred in admitting tendency evidence”. 

2. The appellant contended that BL’s evidence concerning incident 1 (touching students on the buttocks or crutch) did not have significant probative value for two reasons.  First, the Crown case in respect of each of the counts relied essentially on BL’s evidence of the incidents the subject of each of the counts.  In the appellant’s submission, BL’s evidence of another uncharged incident could therefore not have significant probative value in those circumstances: IMM v The Queen [2016] HCA 14; 257 CLR 300. Second, BL’s evidence concerning this incident was not strongly probative of the asserted tendency because it did not support the existence of any specific sexual interest in BL. The appellant was alleged to have touched or attempted to touch all of the boys in the class.

3. The appellant also contended that the evidence of BL and DI concerning incident 3 (watching the boys shower) did not have significant probative value for two reasons.  First, it was not strongly probative of the asserted tendency because, at its highest, it involved the appellant watching all the boys shower and therefore did not strongly support the existence of a specific sexual interest in BL, let alone a tendency to act on that sexual interest.  Second, and in any event, even if it showed that the appellant had a sexual interest in young boys generally, that was not strongly probative of the offences.  It did not strongly support an inference that the appellant acted on that sexual interest by indecently assaulting BL.

4. The appellant initially contended that the evidence in respect of each count was not cross-admissible, though the complaint ultimately devolved into a complaint concerning the trial judge’s directions permitting tendency reasoning in respect of the evidence relating to each of the separate counts.  It was submitted that this was contrary to the reasoning in IMM and the Court of Appeal of the Supreme Court of Victoria in Bauer v The Queen (No 2) [2017] VSCA 176. Following the hearing of the appeal, however, the High Court allowed an appeal from the Court of Appeal’s decision and effectively restricted the reasoning of the plurality in IMM to the type of case there under consideration: R v Bauer [2018] HCA 40; 92 ALJR 846 (Bauer).  In further written submissions filed with the Court’s leave, the appellant indicted that he no longer pressed the contention that Refshauge J erred in finding that the evidence of each count was cross-admissible. 

5. Ground 2 of the notice of appeal is that the trial judge “erred in admitting the evidence of DI regarding assaults on him by the Appellant”.  This ground concerned the trial judge’s admission of DI’s evidence concerning incident 1 on the basis that it supported BL’s evidence about that incident.  DI’s evidence was to the effect that the appellant would sometimes “flick [him] in the balls”.  He did not say that he saw the appellant do this to any of the other boys, including BL. 

6. The appellant contended that the only basis DI’s evidence could support an inference that the appellant did the same thing to BL was via tendency reasoning.  The trial judge did not, however, admit it on that basis.  In any event, in the appellant’s submission, DI’s evidence did not have significant probative value in showing the asserted tendency of a sexual interest in BL.

7. Ground 3 of the notice of appeal was not pressed.

8. Ground 4 of the notice of appeal is, in effect, that the trial judge erred in directing the jury that the “alleged lies of the Appellant could be used to infer that the Appellant feared that telling the truth might reveal his guilt in respect of the charges against him”.  The appellant conceded that he needed leave to raise this ground because the trial judge’s direction in that regard was not the subject of any challenge at trial.

9. The appellant submitted that the direction was erroneous and should not have been given because it was not open, on the evidence, to the jury to find, to the requisite standard, that the alleged lies were capable of showing a consciousness of guilt.  In the appellant’s submission, it was not open to the jury to conclude that the appellant told the alleged lies because he believed that telling the truth would reveal his guilt. 

Ground 1 – Admission of the tendency evidence

1. There was no substantial dispute between the appellant and the Crown about the relevant principles concerning the admission of tendency evidence.  The issue raised by ground 1 primarily concerns the application of the principles to the evidence and circumstances of this case.  It is nevertheless necessary to outline the relevant principles, albeit in brief terms. 

Relevant statutory provisions and principles

1. Section 97 of the Evidence Act 2011 (ACT) provides:

   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—

   ...

   (b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.

2. The Dictionary to the Evidence Act states:

   probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

3. Section 101(2) of the Evidence Act provides:

   Tendency evidence about a defendant ...  that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

4. The test of significant probative value posed by s 97(1)(b) is whether the disputed evidence, considered together with the other evidence, makes more likely, to a significant extent, the facts that make up the offence (or offences) charged: Hughes at [40] referring to R v Ford [2009] NSWCCA 306; 273 ALR 286 (Ford) at [125]. Significant probative value is a probative value which is “important” or “of consequence”: IMM at [46], [103].

5. The consideration of the extent of probative value of the tendency evidence for the purposes of s 97(1)(b) should be approached on the assumption that the jury will accept the evidence: IMM at [49]-[50].  No question as to credibility of the evidence, or the witness giving it, or the reliability of the evidence, arises at the point of admissibility: IMM at [51]-[52]. The only exception would be in the case of evidence which is “inherently incredible or fanciful or preposterous”; such evidence would not appear to meet the threshold requirement of relevance in any event: IMM at [58].

6. The assessment of the probative value of tendency evidence involves the consideration of two related matters.  In Hughes, Kiefel CJ, Bell, Keane and Edelman JJ said (at [41]):

   The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters.  The first matter is the extent to which the evidence supports the tendency.  The second matter is the extent to which the tendency makes more likely the facts making up the charged offence.  Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters … In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.

7. Gageler J in Hughes also considered that the assessment of whether evidence has significant probative value is a function of two considerations: first, the extent to which the evidence (alone or with other evidence) is capable of rationally affecting the assessment of the probability of the person having had a tendency to act in a particular way or to have had a particular state of mind; and second, the extent to which the tendency established by the evidence is (alone or with other evidence) capable of rationally affecting the assessment of the probability of the person having acted in a particular way or having had the state of mind alleged on an occasion in issue in the proceeding: Hughes at [90] and [93].

8. In relation to the first consideration, his Honour noted that unless the evidence as a whole is capable of establishing to the requisite standard of proof that the person has or has had the alleged tendency, tendency reasoning can go no further: Hughes at [90].

9. In relation to the second consideration, Gageler J said (at [93]):

   Important at this stage of the analysis will be the specificity of the tendency and how precisely that tendency correlates to the act or state of mind that the person having the tendency is alleged to have had on the occasion in issue.  That is because, other considerations being equal, the greater is the specificity of the tendency and the greater is the correlation between the tendency and the act or state of mind in issue, the greater will be the predictive or “postdictive” value of the tendency in that the greater will be the likelihood that the person acted or thought in conformity with the tendency on the occasion in issue.

1. The requirement of significant probative value may be difficult to establish where the tendency evidence is an uncorroborated account of an incident by the complainant the probative value of which is said to lie in the capacity of the evidence to support the complainant’s account of the incident giving rise to the offence in question.  In IMM, French CJ, Kiefel, Bell and Keane JJ said (at [62] and [63]):

   In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant’s account.  In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met.  That is not to say that a complainant’s unsupported evidence can never meet that test.  It is possible that there may be some special features of a complainant’s account of an uncharged incident which give it significant probative value.  But without more, it is difficult to see how a complainant’s evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.

   Evidence from a complainant adduced to show an accused’s sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant’s account of the charged offences is true.  It is difficult to see that one might reason rationally to conclude that X’s account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her.

2. Similarly, Gageler J said (at [107]):

   The difficulty of concluding that the complainant’s testimony about the massage incident was capable of having significant probative value was not just that the testimony was uncorroborated.  Her testimony about the massage incident was uncorroborated within a context in which the credibility of the whole of her testimony was in issue.  There was nothing to make her uncorroborated testimony about that incident more credible than her uncorroborated testimony about the occasions of the offences charged.  There was no rational basis for the jury to accept one part of the complainant’s testimony but to reject the other.  The increased probability of the appellant having committed the offences which would follow from the jury accepting that part of the complainant’s testimony which constituted tendency evidence could in those circumstances add nothing of consequence to the jury’s assessment of that probability based on its consideration of that part of the complainant’s testimony which constituted direct testimony about what the appellant in fact did on the occasions of the offences.  The probative value of the tendency evidence could not be regarded as significant.

3. In Bauer, the High Court made it clear that the reasoning of the plurality in IMM was “limited to the case there under consideration: one which involved an uncharged act relevantly remote in time and of a significantly different order of gravity from the charged offending”: Bauer at [55]. That type of case was to be contrasted with a case where the question is whether evidence that the accused had committed one sexual offence against the complainant was significantly probative of the accused having committed another sexual offence against the same complainant. The evidence of the other sexual offence in such a case may have significant probative value because “where one person is sexually attracted to another and has sought to fulfil that attraction by committing a sexual act with him or her, it is the more likely that the person will continue to seek to fulfil the attraction by committing further sexual acts with the other person as the occasion presents”: Bauer at [60].

4. The High Court in Bauer also gave consideration to cases involving “multiple complainant sexual offences” where the 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.  In such a case, “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”: Bauer at [58]. In the absence of some common feature, “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” Bauer at [58] referring to HML v The Queen [2008] HCA 16; 235 CLR 334 at [11]-[12] per Gleeson CJ, [105] per Hayne J (Gummow J and Kirby J agreeing at [41], [59]); GBF v The Queen [2010] VSCA 135 at [26]; BBH v The Queen [2012] HCA 9; 245 CLR 499 at [70]-[71] per Hayne J (Gummow J agreeing at [61]).

5. Section 101(2) of the Evidence Act requires the identification of the probative value and the prejudicial effect of the tendency evidence.  Then a balancing exercise must be conducted on the facts of each case: R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [95].

6. At the s 101 stage of the inquiry, it is necessary to identify the type or types of prejudicial effect in question: Ford at [64].

7. The reference to prejudicial effect is a reference to unfair prejudice; the risk that the fact-finder will misuse the evidence in an unfair way by giving it more weight than it logically deserves, or by responding emotionally to the inflammatory content of the evidence, where the risk cannot be cured by direction: Festa v The Queen [2001] HCA 72; 208 CLR 593 at [51]; Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370 (Vojneski) at [63].

8. The nature of tendency evidence and the form of inferential or inductive reasoning it involves means that there is a very real risk that a jury will attach “too much importance”, or give “too much weight”, to it: Perry v The Queen (1982) 150 CLR 580 at 585-586, referred to by Gageler J in Hughes at [71]. Tendency evidence also usually involves disreputable conduct and as a result contains inherent prejudice: Vojneski at [51], [63]; Saoud v The Queen [2014] NSWCCA 136; 87 NSWLR 481 at [30].

9. In O’Keefe v The Queen [2009] NSWCCA 121, Howie J (with whom McColl JA and Grove J agreed) said at [60]:

   The more general the tendency relied upon, the less likely is it to have sufficient probative value to outweigh the prejudicial effect arising from propensity evidence generally.

10. That statement was approved by this Court in Vojneski at [64].

Admissibility of the evidence concerning incident 1

1. Refshauge J erred in admitting evidence of what was referred to as incident 1; the appellant touching several Year 6 students on their buttocks or crotch on a daily basis during 1978.  More significantly, the admission and use of the evidence relating to that incident at that trial on the basis that it constituted tendency evidence meant that the trial miscarried.  That is so for a number of reasons.

2. First, BL’s evidence was not capable of proving, to the requisite standard, that the appellant had the relevant tendency, which according to Refshauge J was a tendency to have a sexual interest in BL and to use his position to act on that tendency: R v Marsh at [89]. Importantly, that was also the way the tendency evidence was ultimately put to the jury at trial. The difficulty is that BL’s evidence concerning incident 1 suggested that the appellant’s conduct was directed at all of the boys in his class. It was not specifically directed at BL. The evidence did not suggest that the appellant had any more sexual interest in BL than he did with any of the other boys. At its very highest, the evidence may have been capable of proving that the appellant had a tendency to have a sexual interest in Year 6 boys and to use his position to act on that sexual interest.

3. Second, and more significantly, even if BL’s evidence concerning this incident proved, or was capable of proving, that the appellant had a tendency to have a sexual interest in Year 6 boys and to use his position to act on that sexual interest, the very general nature of that tendency meant that it did not significantly affect the assessment of the probability that the appellant committed the specific acts against BL that were the subject of the charges.  The probative value of the evidence of that general tendency could not be said to be important or of consequence.

4. In Hughes, Kiefel CJ, Bell, Keane and Edelman JJ said (at [64]):

   The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency.  The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged.  This will necessarily involve a comparison between the tendency and the facts in issue.  A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency.  But it will also mean that the tendency cannot establish anything more than relevance.

   (Emphasis added.)

5. The evidence relating to incident 1, at its very highest, was capable of establishing little more than that the appellant had a tendency expressed at a very high level of generality.  While the evidence perhaps provided support for that tendency, it was not capable of establishing anything more than relevance, let alone of importance or consequence.  There was nothing which linked the conduct involved in incident 1 with the much more serious conduct which was the subject of the charges: cf.  Bauer at [58].

6. Third, Refshauge J only admitted BL’s evidence concerning incident 1.  BL’s evidence concerning the incident suffered from the deficiency identified in IMM.  Adapting the words used by the plurality in IMM at [63], evidence from BL concerning this uncharged incident, adduced to show the appellant’s sexual interest in him had limited, if any, capacity to rationally affect the probability that BL’s account of the charged offences was true. As was the case in IMM, BL’s evidence concerning the uncharged incident in 1978 was “remote in time and of a significantly different order of gravity from the charged offending”: Bauer at [55]. Indeed, the uncharged incident was “relatively innocuous by comparison”: Bauer at [53]. There was also no “special feature” of BL’s account of this incident which gave it significant probative value: IMM at [62]; Bauer at [53]-[55]. 

7. As noted earlier, Refshauge J appears to have admitted BL’s evidence concerning this incident because, considered together with the evidence relating to incident 3 and an admission made by the appellant concerning a different and distinct incident (the rugby incident), it had significant probative value.  The Crown submitted that this other evidence added “something more” or a “special feature” to BL’s evidence concerning the incident. 

8. That submission is rejected.  It may readily be accepted that the probative value of the evidence concerning incident 1 had to be considered and assessed in the context of, or in conjunction with, other evidence concerning the relevant tendency.  Nevertheless, the other evidence apparently relied on by Refshauge J did not significantly increase the probative value of BL’s evidence about incident 1.  It is sufficient to note, in that regard, that the other evidence did not suggest that the appellant had a sexual interest in BL specifically.

9. The Crown also submitted that incident 1 was “the commencement of a continuum of offending where the appellant has sought to fulfil his sexual attraction towards the complainant”.  The suggestion appeared to be that this case was indistinguishable from Bauer.  That submission is also rejected.  The evidence concerning incident 1 did not suggest that the appellant had a sexual attraction towards the complainant specifically and, in any event, the incident was, contrary to the Crown’s contention, both remote in time and manifestly less serious than the charged conduct.  It was far removed from the “continuum of offending” which was the subject of the charges. 

10. It should also be noted that the trial judge admitted DI’s evidence about the appellant flicking him in the groin area, ostensibly on the basis that it corroborated BL’s evidence concerning incident one.  As explained later in the context of ground 2 of the appeal, however, it is highly doubtful that DI’s evidence did in fact corroborate BL’s account, or add anything to it.  Even if it did, that could only be via a form of tendency reasoning.  Either way, BL’s evidence concerning incident 1 did not have significant probative value even considered together with the evidence given by DI. 

11. Fourth, even if the evidence did satisfy the s 97(1)(b) threshold, it is very difficult to see how the probative value of it could not have been outweighed by the risk that the jury would give it too much weight, or otherwise misuse it. Refshauge J did not give any specific consideration to whether the evidence should have been excluded pursuant to s 101(2) of the Evidence Act.  His Honour did, however, appear to find that DI’s evidence concerning this incident would have had an unfair prejudicial effect: see R v Marsh at [94]. While his Honour did not explain or elaborate on the unfair prejudicial effect, there was at least a risk that the jury would give the evidence concerning incident 1 undue weight, or would improperly reason that the appellant was more likely to have committed the offences against BL because he was some sort of sexual deviant.

Admissibility of the evidence concerning incident 3

1. Refshauge J also erred in admitting the evidence concerning the appellant watching the boys shower.  In all the circumstances, that evidence did not have significant probative value.

2. Like the evidence concerning incident 1, the evidence concerning incident 3 was not capable of proving that the appellant had a sexual interest in BL specifically, as opposed to Year 6 boys generally.  That was the basis upon which the evidence was admitted and used at trial.  The evidence was not that the appellant watched BL shower; he watched all the boys shower. 

3. Perhaps more significantly, unlike the evidence concerning incident 1, while the evidence concerning incident 3 was perhaps capable of proving that the appellant had a tendency to have a sexual interest in Year 6 boys generally, it was not capable of proving, to the requisite standard, that the appellant had a tendency of using his position to act on that sexual interest.  That is so unless “acting on” is construed so broadly as to include simply watching the boys shower.  That type of action, however, is far removed from the type of action involved in the charged conduct.  Even if the evidence was capable of proving that the appellant had a tendency to act on his sexual interest in Year 6 boys, in that very broad sense, the probative value of the evidence of that general tendency could not be said to be important or of consequence in proving the specific acts the subject of the charges.  It was far removed from the sort of tendency evidence considered in Hughes, which went well beyond evidence of a general tendency involving sexual interest in children and a willingness to act on it.

4. Incident 3 was, like incident 1, an uncharged act which was both remote in time and of a significantly different order of gravity from the charged offending.  Like incident 1, it was far removed from the “continuum of offending” which was the subject of the charges.  There was little or nothing of substance or significance which linked the very general tendency of having a sexual interest in Year 6 boys with the alleged offences against BL. 

5. Refshauge J again appears to have relied on the fact that the evidence of the shower incident had to be considered in combination with the other evidence: R v Marsh at [105]. His Honour did not, however, specify exactly what that other evidence was or how it interacted with the evidence of the shower incident in such a way that the evidence had significant probative value. If the other evidence was the evidence concerning incident 1, for the reasons already given, that evidence did not have significant probative value and should have been excluded.

6. As was the case with the evidence concerning incident 1, even if the evidence concerning incident 3 was capable of satisfying the threshold requirement in s 97(1)(b), it should nonetheless have been excluded pursuant to s 101(2) of the Evidence Act. On the one hand, if it did satisfy the s 97(1)(b) threshold, it only did so very marginally, particularly because the tendency that it was capable of proving was only a very general tendency. On the other hand, there was a significant risk that the jury would misuse the evidence, or give it too much weight. Refshauge J did not appear to give any consideration to whether the evidence should have been excluded by reason of s 101(2) of the Evidence Act.  Nor, it appears, did the trial judge. 

The cross-admissibility of the evidence relating to each count

1. As has already been noted, in light of the decision of the High Court in Bauer, the appellant ultimately did not press his contention that Refshauge J erred in finding that the evidence relating to each count in the indictment was admissible as tendency evidence in respect of each other count. 

Conclusion in relation to ground 1

1. Refshauge J erred in law in finding that the evidence concerning incident 1 and incident 3 was admissible as tendency evidence.  The evidence concerning those incidents should not have been admitted at trial.  The trial accordingly miscarried.  It should be noted, in that context, that the Crown did not contend that, if the tendency evidence should not have been admitted, there was nonetheless no miscarriage of justice. 

Ground 2 – DI’s evidence concerning incident 1

1. The trial judge erred in admitting DI’s evidence that the appellant would “flick [him] in the balls” on the basis that it supported BL’s evidence.  That is so for a number of reasons.

2. First, Refshauge J correctly found that DI’s evidence in that regard did not have significant probative value as tendency evidence.  The evidence concerned only what the appellant would do to DI, not to the other boys in the class.  The incident as described by DI also did not have any “unsuitable sexual overtones”.  It was therefore not capable of proving the asserted tendency.

3. Second, DI’s evidence was not capable of supporting or corroborating BL’s evidence concerning incident 1 unless some form of tendency reasoning was employed.  As already noted, DI’s evidence related to the appellant flicking him in the testicles.  He did not say that he saw the appellant do that to any of the other boys.  The only way DI’s evidence could support BL’s evidence was if it could be inferred that, because the appellant did this to DI, it was also likely that he did the same thing to BL.  The drawing of such an inference, however, would itself involve tendency reasoning; that reasoning being that, because the appellant had a tendency to engage in such conduct with DI, it would also be likely that he would have engaged in the same conduct with other boys in the class, including BL.  The trial judge did not, however, admit the evidence as tendency evidence.  Nor did his Honour consider whether or not it had significant probative value, though he did observe, correctly, that the evidence was “not particularly of great significance in the scheme of things”.

4. Third, it is in any event difficult to see how DI’s evidence in fact supported BL’s evidence.  BL’s evidence was that the appellant “used to play games” which included him trying to “pinch you on the bum or grab at your crutch”.  That conduct was significantly different to the conduct described by DI.

1. While the trial judge erred in admitting DI’s evidence about being flicked in the testicles by the appellant, the evidence was of very little moment. It is doubtful whether the admission of this evidence, considered alone, would give rise to a miscarriage of justice: cf s 37O(2)(a)(iii) of the Supreme Court Act 1933 (ACT). Had it been the only ground of appeal, it is doubtful that it would have supported setting aside the appellant’s conviction.

Ground 4 – The direction concerning lies

1. As was noted earlier, the appellant’s counsel did not raise any complaint concerning the directions given by the trial judge concerning lies told by the appellant. Nor was the trial judge requested to give any additional or alternative directions concerning lies. Rule 5531 of the Court Procedures Rules 2006 (ACT) provides that, in those circumstances, the appellant’s ground of appeal concerning the trial judge’s direction must not be allowed unless the Court otherwise orders.

2. The purpose of r 5531 is to prevent what is sometimes referred to as an “armchair appeal”, where counsel not involved in the trial “has sat down and gone through the whole of the transcript and [the] summing up looking for error, without reference to the manner in which the trial was conducted”: Munro v The Queen [2014] ACTCA 11 (Munro) at [128], referring to R v Mahoney [2000] NSWCCA 256; 114 A Crim R 130 at [15].

3. In Papakosmas v The Queen [1999] HCA 37; 196 CLR 297, McHugh J made the following observations (at [72]) concerning the equivalent rule in New South Wales:

   There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant’s conviction is otherwise a miscarriage of justice.  Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence.  In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling.  Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant.

4. In Munro, Burns J (with whom Refshauge ACJ and Penfold J agreed) made essentially the same point in relation to r 5531 (at [130]):

   In the present proceeding, there was no application made under r 5531 with respect to those grounds the appellant now seeks to agitate, which were not the subject of an objection at the trial. Appellants should not consider the provisions of r 5531 to be a formality which may be neglected. It is at the heart of the adversarial system that an accused chooses the manner in which his or her defence to criminal charges is conducted. Almost inevitably, this means that forensic decisions must be made on issues that arise in the course of the trial, such as objections to evidence or an objection to a direction given by the trial judge. The person best placed to make such an objection, by reason of familiarity with the basis on which the defence is being conducted and the atmosphere of the trial, is counsel for the accused. Where no such objection is taken, this Court is entitled to infer that counsel saw no unfairness or injustice in what was done.

5. The failure by the appellant’s counsel to raise any issue concerning the trial judge’s summing up in relation to lies must be considered in light of the following features of the trial.

6. First, the appellant did not object to any of the evidence concerning the alleged lies.  The appellant did not contend that any answers that he gave during the police interview, including those that the Crown alleged were lies, should have been edited out of the interview recording or transcript.

7. Second, in her opening address, the Crown prosecutor referred to the fact that the appellant denied having students other than BL at his house and denied driving students to or from football training or football games.  The prosecutor did not, however, go so far as to refer to those denials as lies.  Nor did she foreshadow that the Crown would be submitting that the lies were evidence of a consciousness of guilt.

8. Third, the appellant’s counsel appears to have been alive to the prospect of the Crown contending that at least some of the appellant’s answers in the police interview were lies.  In his evidence-in-chief, the appellant was asked about the fact that he had told the police that he did not have any students other than BL at his house.  The appellant’s evidence was that at the time he was interviewed he did not have any recollection of any other students being at his house.  The appellant was not, however, asked about any of the other answers which were said to be lies.

9. Fourth, the Crown prosecutor forcefully put to the appellant in cross-examination that he lied to the police during the interview because he thought that truthful answers would implicate him.  There was no objection to those questions.  In response, the appellant denied that he deliberately lied to the police and denied that he did so because he thought that the truth would implicate him.

10. Fifth, at the conclusion of the evidence, and before either counsel addressed the jury, there was some discussion between the trial judge and counsel, in the absence of the jury, about what directions of law the trial judge should or should not give the jury.  There was no reference to any direction concerning lies during those discussions.

11. Sixth, in her closing address, the Crown prosecutor advanced forceful submissions concerning the appellant’s lies.  The Crown prosecutor submitted, amongst other things, that: “the accused did everything he could to distance himself from these allegations”; that he “tried everything to deflect any possibility that he could have committed these offences”; and that the accused lied to the police about these matters because “to tell the truth, that is, that he did have boys over at his home, that he did drive boys in his car, that he did have [BL] stay overnight, that if he was to admit that, that would implicate him in these offences”.  The Crown prosecutor also referred to “consciousness of guilt” and submitted that if the jury did “find he [the appellant] did lie because the truth would implicate him then you can find he did this because he knew he was guilty of these offences”.

12. Seventh, despite the forceful submissions concerning lies advanced by the Crown, the appellant’s counsel said little in his closing address concerning lies.  He did, however, say something.  He submitted that the “matters that are put as a consciousness of guilt, things he said about not recalling other boys being at his house or whether other boys were at his house, how is that relevant to your consideration as to whether the charges before the court have occurred?”.  Counsel then moved onto another topic.  The fact that the appellant’s counsel said very little in his closing address about the alleged lies would not appear to be the result of any inadvertence.  Rather it appears to have been a forensic decision or a judgment call by counsel.  He appears to have considered that the jury would give little weight to the arguments advanced by the Crown in relation to the alleged lies. 

13. Eighth, at the conclusion of the closing addresses, and before he commenced his summing up, the trial judge specifically addressed with counsel, in the absence of the jury, the Crown prosecutor’s submissions concerning “Edwards lies” and consciousness of guilt.  While the trial judge said nothing further on that topic, it must have been apparent to counsel that that his Honour was proposing to give a direction concerning lies in accordance with Edwards v The Queen (1993) 178 CLR 193 (Edwards).  His Honour then addressed another submission made by the Crown concerning consciousness of guilt based on flight.  His Honour said that he intended to give a direction that there was no evidence to support the allegation of flight because the evidence was vague and not capable of amounting to evidence of consciousness of guilt.  If counsel for the appellant considered that the trial judge should have directed the jury that it was not open to them to infer consciousness of guilt from the alleged lies, this was the obvious juncture when that issue should have been raised.  It was not. 

14. Ninth, the trial judge’s directions to the jury in relation to lies were in accordance with what was said by the High Court in Edwards at 210-211. The appellant did not and does not contend otherwise.

15. Tenth, at the conclusion of the trial judge’s summing up, the Crown prosecutor raised an issue concerning the directions concerning lies.  The issue concerned the alleged lie about boys other than BL being at the appellant’s house.  The Crown prosecutor pointed out that the appellant had told police that BL had been at his house, so the alleged lie related only to the presence of other boys.  That lie was said to relate to a material issue in relation to counts 2, 3 and 4 because another boy was present at the appellant’s house when those offences were alleged to have occurred.  The trial judge agreed to, and did, redirect the jury accordingly.  Counsel for the appellant specifically told the trial judge that he had nothing else to raise in relation to the summing up.

16. In all the circumstances, it is extremely difficult to conclude that there was a miscarriage of justice arising from the trial judge’s directions concerning lies, or a miscarriage of justice arising from the fact that the question whether the lies were capable of supporting an inference of consciousness of guilt was left to the jury.  Plainly the appellant’s counsel saw no potential injustice or unfairness in the way that the question of the appellant’s lies were left to the jury.

17. In any event, the appellant’s complaint, which is essentially that the alleged lies were incapable of sustaining an inference of consciousness of guilt, has no merit.

18. The appellant contended that the alleged lie that the appellant had never driven boys home in his car was incapable of sustaining an inference of consciousness of guilt for two reasons: first, because none of the offences occurred in the car; and second, because the appellant admitted in his interview that BL had been to his house, so he had the opportunity to commit the offences irrespective of whether or not he had ever driven BL home in his car.  As for the lie that no boy other than BL had been at his house, the appellant contended that this was incapable of sustaining an inference of consciousness of guilt because the only other boy who had been at his house during the alleged commission of some of the offences had not seen anything occur.  The appellant submitted that, in those circumstances, the presence of the other boy could not have implicated him, so it could not be open to infer that he told a lie about that matter because he feared that the truth would implicate him.  The appellant’s submission in relation to the third lie, the lie that BL had never slept overnight at his house, was similar.  In the appellant’s submission, that lie was incapable of supporting an inference of consciousness of guilt because the appellant had told the police that BL had been to his house.

19. The difficulty for the appellant is that whilst those arguments could no doubt have been put to the jury as reasons why the jury should not infer that the lies were told because the appellant feared that the truth may implicate him, they do not go so far as to demonstrate that the inference of consciousness of guilt was incapable of being drawn by the jury.  The question whether a lie was in fact told out of consciousness of guilt is within the province of the jury.  The question for the trial judge is to determine if the evidence has the capability to pass the tests in Edwards, including the capability of supporting an inference that the lie was told because of a fear that the truth would implicate; it is not for the trial judge to determine whether it actually does pass the tests: R v Lane [2011] NSWCCA 157; 221 A Crim R 309 at [60]; Miles v The Queen [2014] NSWCCA 72; 240 A Crim R 524 at [155].

20. In R v Ciantar [2006] VSCA 263; 16 VR 26, the Court of Appeal of the Supreme Court of Victoria said the following concerning post-offence conduct, including lies (at [70]-[72]):

    Plainly, however, it is necessary to keep in mind the controls which customarily apply to the use of evidence of consciousness of guilt as prescribed in Edwards.  Post-offence conduct is not to be left to a jury as evidence of consciousness of guilt unless it has first been precisely identified together with the circumstances and events that are said to indicate that by engaging in the conduct the accused demonstrated a consciousness of having committed the offence which is charged.

    The judge must also be satisfied that the post-offence conduct when taken in conjunction with the circumstances and events so identified is capable of demonstrating such a consciousness of guilt.

    So, if an innocent explanation of post-offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or if the post-offence conduct is intractably neutral, the judge should refuse to leave the conduct to the jury as evidence capable of demonstrating consciousness of guilt.  But where the judge is satisfied that the post-offence conduct, when taken in conjunction with the circumstances and events so identified, is capable of demonstrating such a consciousness of guilt, the post-offence conduct should be left to the jury to determine whether it has that effect.  Similarly, where evidence of consciousness of guilt, which although by itself equally consistent with consciousness of guilt of an included offence or another count on the presentment or another offence disclosed by the evidence, is capable in conjunction with other evidence of sustaining an inference of consciousness of guilt of the charged offence, it must be left to the jury to determine whether it demonstrates consciousness of guilt of the charged offence.

21. The appellant’s explanations for the false statements made to the police during the interview were not so inherently likely that a jury could not properly regard the conduct as evidence of guilt.  Nor were the alleged lies intractably neutral.  While none of the offences were alleged to have occurred in the appellant’s car, it was alleged that some of them occurred after the appellant drove BL, and on one occasion another boy, to his home.  And while the appellant did tell the police that BL did on occasion turn up at his house of his own accord, it was nevertheless open to the jury to infer that the false statements the appellant made to the police were made in an effort to distance himself so far as possible from BL.  That is particularly the case in relation to the lie about whether BL had ever stayed at the appellant’s house overnight.

22. On balance, the trial judge did not err in leaving the question whether the alleged lies satisfied the tests in Edwards to the jury.  The alleged lies were at least capable of supporting an inference of consciousness of guilt. 

23. Since ground 4 was ultimately fully argued, leave should be granted to include that ground in the notice of appeal, but the ground should be dismissed. 

Conclusion and disposition

1. The appellant has succeeded in demonstrating that Refshauge J erred in law in determining that tendency evidence concerning two uncharged incidents was properly admissible. His Honour also erred in admitting the evidence of DI on the basis that it supported or corroborated BL’s evidence concerning one of those incidents. The Crown did not contend that, should it be found that the tendency evidence concerning the uncharged incidents was admitted in error, the appeal should nonetheless be dismissed on the basis that no substantial miscarriage of justice actually occurred: cf s 37O(3) of the Supreme Court Act.  The appeal should accordingly be allowed.

2. The appropriate order in the circumstances is that the appellant’s convictions be set aside and that he be retried. 

I certify that the preceding one hundred and twenty six [126] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Wigney.

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