McPhillamy v The Queen

[2018] HCATrans 141

[2018] HCATrans 141

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S121 of 2018

B e t w e e n -

RICHARD JOHN McPHILLAMY

Appellant

and

THE QUEEN

Respondent

KIEFEL CJ
BELL J
KEANE J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 AUGUST 2018, AT 10.00 AM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please the Court, I appear for the appellant with my learned friend, MR S.J BUCHEN.  (instructed by Proctor & Associates)

MR L.A. BABB, SC:   May it please the Court, I appear for the respondent with my learned friends, MS K.N. SHEAD, SC and MS B.K. BAKER.  (instructed by Solicitor for Public Prosecutions (NSW))

KIEFEL CJ:   Yes, Mr Odgers.

MR ODGERS:   Thank you, your Honours.  Your Honours will see from the outline that you have been handed, I hope, that we have made a slight change to the name of the appellant.  We have been told we needed to stick the middle name in, and I have been asked to draw that to your Honours’ attention.

Your Honours, if I might just follow the course of the outline; because there were no reasons given by the trial judge on the question of whether or not the tendency evidence in this case was admissible, the focus of the argument in the Court of Criminal Appeal and the focus of the argument in this Court is on the use of the evidence at the trial to prove a tendency to act in a particular way, and if I can just remind your Honours, you are very familiar with section 97, but I will just remind your Honours of 97 and then take you to 101.  Section 97 is found in the joint book of authorities volume 1 at tab 3.

I will not read any of it out but to remind your Honours that it is what might be called a use rule, that if the evidence is sought to be used in a particular way then it is not admissible for that use unless certain requirements are met including obviously, importantly, that paragraph (b) the court thinks either by itself or having regard to other evidence that the evidence has significant probative value. 

Now, if I could just take you to section 101(2), which we will be coming to in due course in the argument.  It is framed somewhat differently.  It does not talk about admissibility.  It just provides, subsection (2) - of course, it only applies in criminal proceedings and only applies to evidence adduced by the prosecution.

But tendency evidence about a defendant - and I just interpose here that tendency evidence is defined in the dictionary to the Act to mean evidence to which section 97 applies.  I will not take you to that dictionary definition but your Honours will find that - it is in the materials, I think, at page 16 - evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection.  So returning to 101(2):

Tendency evidence about a defendant . . . adduced by the prosecution cannot be used against the defendant unless –

that requirement specified there ‑ that we will call the balancing test ‑ is met.

Now, it is curious that it does not talk about admissibility but in the present appeal, the focus is on the way that the evidence was allowed to be used by the judge, Justice Meagher, whose analysis we adopt, concluded that it should not have been permitted to be used as tendency evidence against the defendant both within the terms of 97 and also pursuant to section 101(2).

For that reason, it should not have been admitted because it was not relevant for any other purpose and because it was allowed ‑ it was admitted and because it was allowed to be used by the jury, there was a consequence of miscarriage of justice.  That was the analysis of Justice Meagher and it is an analysis that we adopt. 

It is important of course, when one looks at tendency evidence, to isolate the tendency that was relied upon by the prosecution.  There was a tendency notice, but the focus of this appeal is on how the jury were invited to use it, because there was some diversion, change, between the notice and how it was given to the jury.  The focus of this appeal is how the jury were directed that they could use it as to show a tendency.

As is pointed out in the outline at paragraph 2, it was stated at a level of some generality.  Your Honours will find it in the appellant’s further material, at page 189.  This was a direction his Honour gave to the jury before the evidence was led, and he gave essentially the same direction in his summing‑up.  I will take you to that very briefly.  The direction that was given before the evidence was led, at page 189, line 38:

The Crown will argue that the evidence of those two witnesses demonstrate that [the appellant] had a tendency to act in a particular way –

I emphasise here the word “act” ‑

that is, to by his conduct demonstrate a sexual interest in male children in early their teenage years who were under his supervision.

EDELMAN J:   That is almost the precise terms that he directed the jury in the final directions at appeal book 27.

MR ODGERS:   Correct, your Honour.  I will not take your Honours to that.  It is essentially identical and it is in the core appeal book at page 27, as your Honour, with respect, notes.

BELL J:   Mr Odgers, it is a small point but do I take it you accept that in your book of further materials at 190, adjacent to what would be about line 32, there is an error in the transcription and it should read, “You cannot punish Mr McPhillamy”.

MR ODGERS:    I am sorry - this is at page 190, your Honour.

BELL J:   Page 190 and it is a couple of lines above the mark “35”.  Do you see it says:

You can punish Mr McPhillamy for other conduct ‑ ‑ ‑

MR ODGERS:   Yes.

BELL J:   Yes, it is accepted that is a transcription error.

MR ODGERS:   Yes, your Honour.

BELL J:   Thank you.

KIEFEL CJ:   So his Honour, in directions, makes no reference to acting upon the sexual interest?

MR ODGERS:   I am sorry, your Honour.

KIEFEL CJ:   In his direction, his Honour the trial judge does not direct the jury that they may consider whether he is likely to act upon the sexual interest?

MR ODGERS:   Directions were given about the use that could be made of the tendency evidence.  They were directed in a way designed - in accordance with authority and they were directed that they could use it to infer a tendency to act in a particular way, that it was open to them to use it for the way the prosecution left it.

NETTLE J:   What he did not do was say, “You may perhaps consider that it establishes a sexual interest upon which the accused was disposed to act”.  It was always just left in terms of he had a sexual interest in little boys.

MR ODGERS:   Yes.  That is in the summing‑up, your Honour, or you took ‑ ‑ ‑

NETTLE J:   Yes, and no more ‑ so in the preliminary direction it is exactly the same, as you rightly say.

MR ODGERS:   Yes.  This may not be answering your Honour’s questions, but we draw a clear distinction between using the evidence to show an interest and using the evidence to show a tendency to act.  We say that in this case the tendency relied upon was to show the latter, to act.

NETTLE J:   To act.

MR ODGERS:   To act, and that it did not have significant probative value for that – it was not strongly probative to show that that tendency existed at the time of the commission of the offending in ‑ ‑ ‑

EDELMAN J:   Your point about the acting is that the way the tendency is expressed by the trial judge is a tendency to act in a way that demonstrates a sexual interest.  Well, that is expressed almost as highly as it could possibly be in terms of generality.

MR ODGERS:   Yes, that is certainly a point we are making, but I think a subsidiary point is that the tendency that was relied upon was not just to show a sexual interest.  We appreciate that the Crown respondent will be advancing an argument that this Court should accept that paedophilic interests tend to continue and it may well be that it would be reasonably open to infer that if you demonstrated a paedophilic interest in 1985 that it is likely to continue even ‑ ‑ ‑

KIEFEL CJ:   But there was no expert evidence as to this.

MR ODGERS:   There was no evidence in the trial.  There was some evidence on the voir dire from Dr Quadrio.  We have taken a technical objection in relation to that.  But, your Honour, putting that to one side, the question of establishing it, the critical point we make is that, given that the purpose of – the tendency that is sought to be established was to act on the interest, that there is a world of difference between a person having a particular interest and ‑ ‑ ‑

KIEFEL CJ:   I understand that, Mr Odgers.  My inquiry was, given that that is your argument, is it not relevant that the trial judge did not direct the jury in the way you say was necessary?  Does it not follow from your argument that it was necessary for the trial judge to have directed in those terms?

MR ODGERS:   It does, your Honour, but I have to immediately concede two things:  one, there was no ground of appeal advanced in respect of the summing‑up; two, we have not made it the focus of this appeal.  The focus of this appeal is whether the evidence should have been admitted for that use, whether it had significant probative value, et cetera.  Of course I accept that to the extent that the directions bear on the question of whether or not there is a miscarriage of justice then that can be factored into the equation.

NETTLE J:   Mr Odgers, could I just be clear about this?  You accept, do you, that it is open for a jury to find from the fact that there were offences of this kind committed a decade before that the man had a tendency upon which he was disposed to act towards little boys?

MR ODGERS:   No, no, no ‑ ‑ ‑

NETTLE J:   Without expert evidence.

MR ODGERS:   No, your Honour, I was referring to whether or not 10 years later he might have an interest in little boys.  That is a very different thing from acting on it.

BELL J:   Does that pick up the majority’s analysis that according to common human experience, expert evidence put to one side, a person with an established sexual attraction to young teenage boys, it might be reasonable to think that attraction would not diminish over 10 years. 

MR ODGERS:   Yes.

BELL J:   The essence of this appeal is the probative value of the tendency to act on the attraction in circumstances in which it had not been shown to manifest itself over a decade, which in turn raises issues about people who may well be attracted to children might nonetheless have the capacity to restrain their instincts in that regard.  That is the essence of it.

MR ODGERS:   That is the core of the argument, particularly on 97.  Of course, I will come back to 101(2) in due course but that is the core of it.  Now, that feeds in to point 3 on the outline which is a concession of relevance.  We accept that the evidence, even as tendency evidence, might be said to be relevant to the ultimate issues in the case but we adopt what Justice Meagher said and, with respect, what Justice Bell has said to support the proposition that the evidence did not have significant probative value in respect of any of the counts in the indictment. 

Just briefly, in respect of R v Cox, we have made the point that the Criminal Justice Act 2003 (UK) has essentially a test of relevance for admissibility.  I do not know if your Honours need me to take you to that but perhaps just briefly if I could.  The legislation is found in the joint book of authorities volume 1, tab 4 and at page 21 your Honours will see section 101(1):

In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if –

and then there is a series of alternatives.  The relevant paragraph is (d) if:

it is relevant to an important matter in issue between the defendant and the prosecution –

there is a discretion to exclude, similar to section 137 in our Act, but essentially it is a test of relevance. 

KIEFEL CJ:   What about (e)?

MR ODGERS:   Your Honour, these are alternatives.  Perhaps I will just take you very briefly to Cox.  It is in the second joint book of authorities, tab 13.  Page 508 is the relevant part.  In paragraph 16, in the second sentence:

The Crown applied to adduce the evidence of those convictions under the bad character provisions of the Criminal Justice Act 2003.  The sole potential gateway was gateway (d) in Section 101(1), that is to say the Crown contended that the previous conviction was capable of establishing a propensity to offend as charged on the present occasion by sexual interference with a female child of the age –

et cetera.  Of course, what the statute specifically says is “relevant”.  Their Honours’ discussion of this is to be seen as essentially saying ‑ ‑ ‑

KIEFEL CJ:   Where is it said in the Criminal Justice Act that section 101 is to be read as alternative?

MR ODGERS:   That is my understanding of the position, your Honour.  More importantly, the gateway that was relied upon in Cox by the Crown was (d), and they said it was relevant to an important issue, therefore it got through that gateway.  The only question then was discretionary exclusion.  The Crown’s reliance on Cox to support their argument has to be read in that context.  That is the point we make.

NETTLE J:   It is the “or” after paragraph (f) that makes them alternatives, is it not?

MR ODGERS:   Yes, your Honour.  I have referred to Justice Meagher’s judgment in outline paragraph 3.  I am sure your Honours have read it but if I could just take you fairly quickly through the core parts upon which we place particular reliance in the core appeal book and if I could take you to page 137 in that book.

KIEFEL CJ:   I am sorry, is this the core appeal book, Mr Odgers?

MR ODGERS:   The core appeal book, yes, your Honour.  I do not want to spend too much time on this because your Honours no doubt have read it and will read it again, but just to emphasis aspects of it, paragraph 102 his Honour refers to three matters relied upon by the appellant in the Court of Criminal Appeal advanced by my learned junior:  firstly, the lapse of 10 years; secondly, differences in the circumstances between the tendency conduct and the charge conduct; and, thirdly, the high level of generality of the tendency.

His Honour in paragraph 103 dealt with the first, the time delay, and his Honour noted that there was no evidence independent to the complainant’s evidence which suggested that the tendency had manifested itself, acted on interests, if I could use that language, in any form over the intervening decade.  Then his Honour pointed to the significance of that absence of any evidence during that 10‑year period.  He noted at paragraph 104 that:

the Crown says that “a sexual interest in young boys is not a tendency that one would necessarily expect to dissipate over time.

That was something that the majority in the Court of Criminal Appeal focused their attention on but, as his Honour said over the page at line 10, the conduct in Hughes:

demonstrated that the tendency persisted during that six year period.  There was no such evidence in this case.

The point his Honour is making is whether or not a sexual interest might not be expected to dissipate, the critical point is that there was no evidence of a demonstration that the tendency to act had persisted during the 10 years subsequent to the tendency conduct.

His Honour – and I will not take your Honours through it – discussed various authorities and referred to cases where there had been time gaps.  At paragraph 107 he referred to a case called BC and he noted in that case that there was in fact evidence of charged conduct over the whole period where there was a long period of time, but that of course was different.

He referred to the case of RHB, which your Honour Justice Nettle wrote a judgment in and distinguished that because of the very specific and remarkable nature of the tendency with a high degree of similarity in that case – that is at 110.  So he distinguished it on that basis.  He accepted the argument that it was significant that there was this 10‑year gap. 

Then in respect of the second argument, at paragraph 111, dissimilarities, he analysed the differences in that paragraph.  I will not read it out but we adopt what his Honour says there in drawing distinctions between the tendency conduct and the alleged conduct the subject of the charges.

NETTLE J:   It is at that point you run into a bit of trouble with what the majority said in Hughes, do you not?  Up until then it is plain sailing but at 111 it gets a bit difficult.

MR ODGERS:   I am not sure.  Your Honour I do ask your Honour to spell out what my problem is.

NETTLE J:   As it appeared to me, the majority reached the view in Hughes that it was really not to the point that different types of sexual acts were involved in different circumstances at different times with people of different ages.

MR ODGERS:   Thank you, your Honour, I understand that point.  Let me respond in this way.  As I understand what the majority held in Hughes their Honours held that it is not essential to a finding of significant probative value that there is similarity of conduct.  I am not sure that their Honours went further and talked about whether or not it is essential that there is similarity of circumstances.  I will put that to one side.  But their Honours did refer to not essential that there is similarity of conduct.

Their Honours also acknowledged that in many cases you will only be able to show significant probative value where there is at least similarity of circumstances.  So, with respect to your Honour Justice Nettle, I do not see – we respectfully submit there is no inconsistency between what his Honour has said there and the majority’s judgment in Hughes, because Hughes does not say that questions of similarity are relevant.

EDELMAN J:   It is paragraph 42, is it not, of Hughes, where the two interrelated aspects of tendency are considered, the first aspect being the extent to which the evidence supports the tendency in which case a degree of particularity does not really enter into the question.  But the second question is the extent to which the tendency makes the offence more likely, and if the tendency is expressed at a very high level of generality involving very different acts, then at the second stage it is not going to make the offence more likely than it would if it were expressed in a greater degree of granularity.

MR ODGERS:   Certainly we adopt that point and we say it has application in this case, but with response to your Honour Justice Edelman, I had not understood that Justice Nettle was really raising the question of generality versus specificity.  I think his Honour was more, without putting words into his – verballing his Honour, focused on the question of whether – focused on similarity as something that is germane to the assessment of significant probative value.  We say it is ‑ ‑ ‑

EDELMAN J:   But similarity comes into it when one looks at the extent to which tendency makes an offence more likely.

MR ODGERS:   That is true, your Honour, but if I might just show a slight digression at this point.  Significant probative value can be shown in different ways, even with respect to tendency evidence.  The primary way in which it was shown to have the significant – sorry, the tendency evidence in Hughes was shown to have significant probative value was because it did something which, I think, was referred to in Makin. 

Your Honours may – the history of this goes all the way back to Makin when the Privy Council Judicial Committee talked – said what the relevant test is and they talk there about saying generally bad character is not allowed in but it can come in and they gave a specific example where it is relevant to rebut a defence that may be open. 

If it might be open, for example, to say that the account of the complainant is implausible because it suggests that the accused did something which is just very unlikely, then in those circumstances a tendency to do that very thing may be significantly probative because it meets that, not defence, but that basis for challenge, or potential argument reducing the strength of the prosecution case. 

That is an example, indeed, it is the specific example in Makin, of where it would be relevant and may well be admissible.  So, the point I am making, your Honours, is that that is a particular mode of reasoning which shows significant probative value.  It was applicable in Hughes.  We say it is not applicable in this case because it is not a case where the tendency evidence tended to show that he engaged in conduct which met some potential problem in the defence case.  I will come back to that in due course.  I am in a digression. 

Another way in which it might be thought that tendency evidence is relevant and has significant probative value is just simply based on the reasoning – I think Justice Gageler put it in Hughes if I might say, with respect, well, is that where you say, well, he did it before, therefore, he tends to do it, therefore, it is likely he did it again.  That is just a blunt form of reasoning but the courts have recognised for over a century that the probative value of that kind of reasoning is pretty low.  Just because you have murdered before does not mean you have murdered again.  Just because you stole before does not mean you stole again and so one needs to look very carefully if that is the process of reasoning that is involved whether it really does significantly increase the probabilities of guilt. 

BELL J:   So perhaps coming back to the exchange you were having a few moments ago with Justice Edelman, when one goes to the plurality analysis at paragraph [58] in Hughes, it is said the tendency evidence did more than prove a disposition to commit crimes of the kind in question.  The significant value there was illustrated by hypothesising the separate trials and the implausibility of acceptance of the complainant’s account in each case.  Here, I suppose one could view it in a number of different ways but one is looking at an allegation that an altar boy has been interfered with in a cubicle in a toilet and one wonders proving 10 years earlier that when boys went for comfort because they were lonely to a housemaster who started by cuddling them, does that make more or less plausible the allegation the subject of the charges?

MR ODGERS:   In his private bedroom, in a place where boys were not even permitted to go, completely; we say the private bedroom is the critical factor there which shows that he was not engaging in high risk behaviour then.  So, to the extent that you say that there is a question mark about going into a toilet, a public toilet, that seems implausible, does the tendency evidence tend to show that he engages in high risk conduct?  No, it does not, in contrast with Hughes.  So, yes, that was the point I was trying to make to Justice Edelman that that was the process of reasoning that gave the evidence significant probative value in Hughes but does not in this case.

BELL J:   But one comes back to, on one view, the acceptance of a process of reasoning as crude as a person with a proven tendency to act on a sexual interest in young boys, even after 10 years.  That proven interest makes more likely acceptance of the evidence on this occasion.  That is the crunch issue.

MR ODGERS:   We said that both of the steps that Justice Edelman referred to are engaged here.  The crucial thing was:  did he have the tendency to act in 1995?  That was itself a problem.  That is the point that Justice Meagher was making. 

BELL J:   Yes.

MR ODGERS:   Even if you assume that that step is not reached, does that tendency significantly increase the probabilities of guilt?  That is also engaged by this case.

EDELMAN J:   Is the 10‑year factor relative to Hughes ‑ the relatively few number of complainants and the relatively few incidents are all in relation to the first step of the analysis?  Then at the second step, one says even when a attenuated link is considered, you have a very high level of generality that does not provide a great deal of support, you say, for the charged offence.

MR ODGERS:   That is exactly correct, yes, with respect, your Honour.  May I move on to paragraph 4?  We say, whatever the position is with respect to the application of House v The King principles to the question of admissibility, given that this argument is about there was a miscarriage of justice resulting from a use that should have been prohibited and where there were no reasons, of course, given below by the trial judge on that question, we say that it is a matter for this Court to determine for itself whether or not the evidence had significant probative value within the terms of 97(1)(b).

Paragraph 5:  we have discussed this to some extent, and that will shorten what I need to say about it.  The reference there is to the generality aspect, which is the second aspect Justice Edelman just referred to.  We have given references to various judgments in Hughes.  I will not take your Honours to those references, but in essence they make the point, with respect, that if one is just talking about a general tendency – “you have done that kind of thing before, therefore you did that kind of thing again” – it is a proper view, and a view that has been held for 100 years or more in the courts, that that evidence is not significantly probative, quite apart from any questions of unfair prejudice and we say that Hughes recognises that in those various judgments.

Can I say that that is consistent with the conclusion of the Australian Law Reform Commission, that conduct divorced from circumstances in which it occurred is a poor predictor of human behaviour.  It is the circumstances in which conduct occurs which is critical to prediction about future behaviour.  I will be taking your Honours briefly to some aspects of the ALRC reports.

There was a discussion of the relevant research and there was a point made that the research does seem to suggest that character, or interest, let us say, is not a good guide to behaviour and that what needs to be focused on are the circumstances in which it occurred, and then a comparison of the circumstances in question to a system, a process of prediction, or, in this case, as I think Justice Gageler put it in Hughes, post‑addiction.  That is, drawing an inference back in time from prior conduct.  We rely on what Justice Meagher said.  This again makes the point.  He said, the evidence did not strongly support the existence of the alleged tendency in 1995‑6 nor did [it] strongly support proof of a fact in issue, which is the point which has just been made.

We respectfully submit that what was said by Justices Harrison and Hulme, where their Honours referred to a position of responsibility and taking advantage of being alone did not alter that conclusion.  We rely on what Justice Meagher said in his judgment at paragraph 118.  We respectfully submit that there is nothing unusual or uncommon or inherently unlikely about those aspects of the conduct.

Paragraph 6 returns to the point which has already been made.  So I will not need to emphasise it at any length, but there is a distinction between paedophilic interest and acting on such an interest.  I am going to deal here briefly with the materials that the Crown has referred your Honours to, to support the proposition that paedophilic interests tend to continue.  It is appropriate that I deal with that briefly.

There was evidence from Dr Quadrio, which was on the voir dire.  We have taken a technical objection to it.  We do not really maintain it.  We accept that your Honours are entitled to look at it. 

NETTLE J:   But why are we if the jury did not?

MR ODGERS:   I do not want to put an argument against myself but I imagine the argument is the judge would have been entitled, if, for example, an argument had been made that the evidence should not be used for tendency purposes ‑ ‑ ‑

NETTLE J:   The point I am endeavouring to make, not very well, is that, if the judge needed to see the expert evidence to be satisfied of the probative value of the evidence then so too, surely, did the jury, for without it you do not know the extent of its probative value.

MR ODGERS:   Yes.  The difficulty I have – again I am putting an argument against myself – is that the appeal is on the basis that the evidence should not have been allowed to be used for tendency reasoning and therefore that, in essence, the judge should not have permitted that, and that turns on whether or not the evidence did have significant probative value, and in assessing whether or not it had significant probative value there was material tendered on the voir dire which went to that question.

NETTLE J:   Ex hypothesi it might have had probative value taken in connection with other evidence, namely, the expert evidence.  Inasmuch as that was not before the jury, it lost the link that gave it the probative value.

MR ODGERS:   Yes, I am not going to say any more about that, your Honour.  So, I will not say any more about Dr Quadrio.  There is material ‑ there are footnote references in the respondent’s submissions to articles and to DSM‑5.  Again, it may be, your Honour, the point your Honour has made to me would have application to that but I will deal with it briefly nonetheless.

We have looked at those materials and, in essence, they do support the proposition that generally speaking the research tends to suggest that a person who is a paedophile as an adolescent, tends to stay – have paedophilic interests for – I mean, there are exceptions, of course, but as a general proposition that is true, but none of the material supports the proposition that once you have engaged in a paedophilic act, therefore, you are going to keep doing it, none of that.  There is no material that supports that proposition.

We drew the distinction in the written submissions between evidence which shows that you are a person who could do something and evidence that shows you did do something.  At the end of the day, the fact in issue is did he do the acts with which he was charged and the tendency was to act and the question was did the evidence – was it significantly probative to prove that he did do the act, that is, that he acted in accordance with paedophilic interests.  So, given that focus, it is critically important to recognise the distinction between the two forms of tendency.

Then, at paragraph 7 of the outline, we have responded in the reply to two matters that have been raised by the respondent in their written submissions, two features that the respondent contends are relevant to the assessment of probative value.  One was the “relatively little grooming”, “risk of detection”.  We have made the point in our reply that neither of those was relied on at trial, neither was relied on in the Court of Criminal Appeal and then in the reply we have taken your Honours to the relevant parts of the transcript which, we say, show that there were good reasons why neither of those were relied on and that, we say, in sum total, that neither supports the Crown’s argument for significant probative value and unless your Honours need me to I do not propose to go to the detail of that material.  It is summarised in the reply at paragraphs 3 to 6.

Moving with rocket speed, paragraph 8, this is the point I engaged in with Justice Bell that while it could be and was argued that the complainant’s account about going into the toilet cubicle had aspects of implausibility, I might add that the Crown Prosecutor said there was nothing implausible about it.  It was a private place and there was no great risk of being found out.

It is true that defence counsel, not that it is particularly relevant, said look, it is still risky, let it be assumed that that was put and that was something that could be put.  The critical point is that in contrast with Hughes, the tendency evidence involved no high risk of detection in circumstances of the tendency conduct and, therefore, the evidence did not have the significant probative value in the way that it did in Hughes.  I generalised to the idea of it did not tend to rebut a defence which would otherwise be open to the accused, giving the word “defence” a very broad meaning. 

Then paragraph 9.  One way in which tendency evidence arguably has significant probative value is because it could be seen to enhance the credibility of a complainant.  You might say, for example, that the complainant’s account is very similar to an account given by a tendency witness, and those similarities are such that, absent joint concoction or some other explanation, it is likely that the account is true because it would be remarkable – improbable that they would come up with, independently, very similar but false allegations.   That is the logic of it.

Well, we have two things to say about that.  I am not sure that it has been argued against us but we needed to deal with it just to ensure that the field was covered so to speak.  The first thing to say is that in this case the argument has much less force because the evidence was that the complainant was aware, prior to his first complaint, that charges had been brought against the appellant in respect of the conduct; the tendency people – the tendency conduct, if I might use that language, and we have given references to where in the transcript he was cross‑examined about that. 

But we do make a broader point and it is this.  Unfortunately, in the materials your Honours have not been given section 98 of the Evidence Act and I – if your Honours – can I hand up copies of section 98. 

KIEFEL CJ:   I think we have all got that. 

MR ODGERS:   Well then, your Honours, that solves my problem.  I will take those back, unless your Honour – unless a member does not have one. 

KIEFEL CJ:   Perhaps one copy.

MR ODGERS:   I will hand up one.

KIEFEL CJ:   Thank you. 

MR ODGERS:   And I will hand copies to my friends.  The reason I draw your Honours’ attention to this is that the way that Part 3.6 is constructed, and as you saw in respect of section 101(2), there are actually two rules.  One is the tendency rule and the other is the coincidence rule.  And the coincidence rule is found in section 98 and it is quite a mouthful and I will not read it out, but the point is this.  The coincidence rule deals with a situation where evidence is being relied on by a party based on similarities of events or circumstances to reason via improbabilities. 

In the provision it talks about coincidentally or coincidences, but it talks about improbable that the events occurred coincidentally, and it imposes rules which are in fact identical to the rules in respect of tendency evidence, that notice has to be given ‑ reasonable notice has to be given and that the evidence has significant probative value. 

The point, your Honours is this.  Where the prosecution is, in fact, relying on what I might call improbability reasoning, whether or not it is improbability that two people would come up with very strikingly similar allegations independently unless they were both true or modus operandi, an offence – a series of offences are committed in a strikingly similar way, using the same modus operandi, therefore it is very likely that the same person did it or a number of other circumstances.

Where section 98 is engaged, and we say it is engaged whenever you are engaging in essentially improbability reasoning, then you have to give reasonable notice and it has to have significant probative value.  So that the fact of the matter is, if the prosecutor is going to use that reasoning to support the admissibility of evidence and section 98 is engaged, you have to give notice of it. 

EDELMAN J:   Why do we even get into those questions here?  If the tendency is expressed at a level of demonstrating a tendency to act in a way which demonstrates a sexual interest in male children in their early teenage years who are under his supervision, that is not a tendency which is one which evidences substantially similar conduct that might engage section 98.  You cannot run both arguments.

MR ODGERS:   No.

EDELMAN J:   One argument to say it is at too high a level of generality and one argument to say well, let us suppose it is at a much lower level of generality, particularity, and then it runs into section 98.

MR ODGERS:   I will be completely frank, your Honours.  I am responding to a proposition that was expressed by some members of the Court in Hughes that tendency evidence might have significant probative value using principles where you could use language of modus operandi and the point I am making here is that one has to be careful that if, in truth, what is being utilised is reliance on improbabilities or coincidences or anything like that, then you are at risk of engaging section 98, and that is all I am saying.

BELL J:   It is a submission that assumes that, when section 98 refers to evidence that two or more events occurred, the relevant event is the account given by a person of an event that occurred to the person as distinct from the event.

MR ODGERS:   It can be, and it could be in the case of multiple – if a break and enter is done in a particular way, then it is the event of how that offence was committed, but it could also be an event of an allegation of something and the event is the making of the allegation and then the similarities are to be seen between the two different sets of allegations, in which case again you are engaging in 98 reasoning.  Section 98 covers a broad range of circumstances.

BELL J:   I understand.  It is an issue about what is embraced by two or more events.

MR ODGERS:   Yes.

BELL J:   I understand your submissions.

MR ODGERS:   Thank you, your Honour.

NETTLE J:   I am not sure I do.  Where does it go?  A notice was given under 97.  The submissions were made in relation to the admissibility of the evidence referred to and it was tendered and acted upon.  The tendency was said to be one to have an interest in young ‑ ‑ ‑

MR ODGERS:   Yes.  Your Honour, it may not go anywhere.  I think Justice Edelman has, with respect, correctly made the point.  There was not any reliance on this kind of reasoning below.  I am not sure it has been relied on by my friends.  Therefore, it does not matter.  I am merely meeting a potential argument that a modus operandi type analysis would inform the probative value of this tendency evidence and to meet that I am saying it did not work in this case, but putting the facts to one side it raised a question about the operation of 98.

NETTLE J:   This is the lack of grooming and high risk environment and so forth considerations, is it?

MR ODGERS:   That kind of thing, yes.  Once you start analysing it in terms of what I will call modus operandi and in terms of improbabilities, then you are really engaging 98.

NETTLE J:   Your submission would then be you have to have a 98 notice and that was not done.

MR ODGERS:   Yes, that is right.

NETTLE J:   I am not sure that is right, if you give sufficient notice under 97.

MR ODGERS:   Your Honour, I have to say that there are authorities – I do not have them in my hand – where courts of criminal appeal have accepted that ‑ ‑ ‑

NETTLE J:   I have seen those.

MR ODGERS:   ‑ ‑ ‑if in truth you are engaged in one rather than the other – for example, you put a 98 notice on and it turns out that you are really relying on tendency reasoning, too bad you did not put a notice on, you cannot do it. 

Conversely, you put a 97 notice on, you do not put a 98 notice on.  It is interesting that in New South Wales practices have changed.  In the old days – old days, 10 years ago – they used to put on both notices invariably and say, “It is one or the other or both,” so the problem was resolved.  When they just put on one notice then there is a difficulty which needs to be confronted.

KIEFEL CJ:   Perhaps we could get back to your central argument.

BELL J:   Factually there is no suggestion of that here.

MR ODGERS:   I think I can leave it on that basis.  Thank you, your Honours.  That is all I have to say about 97, unless there is anything your Honours want to raise with me, which takes me to section 101(2).  I have said at paragraph 10 of the outline that there is nothing in the Act that prevents a court from considering 101(2) without having first considered 97. 

I accept that it is conventional and it makes perfect sense to deal with it sequentially, but it is not required.  Circumstances could arise and it may be that this is a good example of a case where a judge or a court might say, “Whether or not you characterise the evidence as having significant probative value, the prejudice is so high, or the risk of unfair prejudice” – I will come back to that point in a moment – “is so high that there is just no way that I could be satisfied that the probative value substantially outweighed those dangers”.  Indeed, we would say that this is a case where it would be appropriate to adopt that approach.

Of course you have to, as part of the exercise of engaging in 101(2), assess the probative value of the evidence.  That is true.  You also have to assess the danger of unfair prejudice.  But you do not necessarily have to say whether or not it is significant.  You could just simply conclude, quite properly, that, as we said in our submissions, it is not high, and there was a high risk of prejudice, and in those circumstances you could not possibly satisfy the onus on the Crown of demonstrating that the probative value substantially outweighed those dangers just could not be met or was not met.  I just make that point.

We say that if you go through the 97(1)(b) test, even if it were concluded that the evidence had significant probative value, even if that was satisfied, 101(2) plainly does have work to do.  It is clearly intended to have operative effect, even if tendency evidence does have significant probative value.  It was contemplated that circumstances might arise in which the evidence is of a sort where there is very high or high dangers of unfair prejudice and that in those circumstances it was contemplated that they might well outweigh – whatever that term means – the probative value of the evidence.  But that is merely introductory commentary about the provision.

I have already touched on the fact that it is expressed in terms of “cannot be used”.  I will not say any more about that point.  We say that if it was engaged, the evidence was allowed to be used, it should not have been.  That caused a miscarriage of justice.

Paragraph 11 of the outline, we respectfully submit we maintain it.  It is not critical to our argument.  The majority did not provide any reasons as to why the test was satisfied.  The Crown says that they did.  We have put the argument.  I am not sure that it assists this Court greatly for us to take you through that material.  At the end of the day there really was not anything that one could isolate as to reasons given by the majority as to why the test was satisfied.  But, as I say, I have dealt with that in the written submissions at 26 to 27, and I am not going to take your Honours through that orally.

So then there is the application of the test.  We have said in the submissions ‑ it is really self‑evident ‑ that there is a three‑stage process.  You have to assess probative value, you have to assess danger of prejudice and then you have to engage in this weighing exercise, whatever that means, and I will come to that in a moment.  As for the first step, the probative value, I will not say any more than we essentially adopt the reasons, the arguments that we have advanced, relying heavily on Justice Meagher, as to why the probative value of the evidence in this case was, at the very least, not high.

Then we turn to the second step, which is the words “any prejudicial effect it may have on the defendant”.  Immediately we have acknowledged that you have to read the word “unfair” into that formulation.  We accept that the mere fact that it tends to prove he is guilty is not the kind of prejudice that is being contemplated by 101(2).  It must mean “unfair prejudice”.  The term is found in 135 and 137.  I am not sure why the drafter of 101 – actually, I have a theory about why it was drafted in this way. 

Your Honours may recall that this was not a provision recommended by the Law Reform Commission.  I think your Honour Justice Nettle looked at the history of all of this.  There is not a lot of information available as to how this provision came into existence and what it was intended to achieve but, nonetheless, I am not going to speculate about why they left out the word “unfair”.  The point we are making is that we concede that it must be read into the provision to give it sense.

However, we do emphasise the word “may”.  It is not a question of the Court assessing what the unfair prejudice is; it is, rather, to ask:  how might it be unfairly prejudicial to, in this case, the appellant?  There is no definition of either “prejudice” or “unfair prejudice” in the dictionary of the Act.  One is left to import meaning to it.  In Hughes, the plurality judgment did say things about it at paragraph 17 which we adopt and I will not take your Honours to it. 

We do place weight on 100 years of authority in the courts recognising that tendency evidence does have a prejudicial capacity of a high order, particularly when we are talking about tendency evidence of prior criminal conduct by an accused person relied on to show a tendency to engage in that conduct and to then commit the offence charged.

We say that through a whole sequence of High Court cases and going back to Makin and to adoption of what the House of Lords held in Boardman and the decision in P and then High Court cases like Sutton, Perry, Pfennig and Harriman.  I am not going to take your Honours through all of them.  There is a recognition of different kinds of prejudice and a recognition that such prejudice can be very significant. 

Indeed, in Pfennig, the plurality said at 483 that tendency evidence has a prejudicial capacity of a high order.  That was the language that their Honours used, and we adopt it.  As I have already said, the statute necessarily contemplates that prejudicial effect may be very high because it contemplates circumstances in which, even though probative value is significant, it does not substantially outweigh the risk that prejudicial effect may apply, which clearly contemplates that the prejudicial impact or effect can be considerable.

The two forms of unfair prejudice that we have placed weight on are summarised at paragraphs 13 and 14 in the outline.  I do not understand that there is any issue or difficulty about these two kinds of prejudice.  The first is the danger of the evidence being given disproportionate weight; that is, the tribunal of fact, particularly a jury, giving it more weight than it deserves. 

The other, of course, is the danger of the jury responding in what I might call an emotional way to the evidence.  It is not a question of assessing the weight it should be given but rather clouding the assessment and clouding the operation of the discharge of the standard of proof and the assessment, potentially, if the accused goes into the witness box:  how his or her account should be received.  They are all aspects of what we say is recognised potential adverse emotional response.

As I say, I am not going to go to those references we have given in the outline other than perhaps to take your Honours briefly to what the Law Reform Commission said about this.  Of course, notwithstanding the fact that the Law Reform Commission’s proposal was not adopted, the discussion of prejudicial effect must inform the meaning to be given to that term in section 101(2).  We say that it is still of assistance to this Court.  It is found in the joint book of authorities, volume 2 at tab 13.

KIEFEL CJ:   I think that appears to be Cox.

MR ODGERS:   My mistake, your Honour.  It is 17.  This of course was in the interim report, volume 1.  I am not proposing to read much of it at all; I am just going to draw your Honours’ attention to various parts of it.

KIEFEL CJ:   To what end, Mr Odgers?

MR ODGERS:   To assist your Honours in an understanding of the concept of prejudicial effect as it is found in section 101(2) and to assist your Honours in your own assessment of the danger of prejudicial effect in this case.

At page 595, there is paragraph 799 which is headed “Disadvantages of Character Evidence”.  Then you will see there is a dot point, “Problems with Estimating Probative Value”.  Then later on there is a dot point, “Risk of Prejudice”.  They are the two different kinds of prejudice. 

On the problems with estimating probative value, again the point has been made that there is a danger of disproportionate weight being given to tendency evidence.  On page 596, your Honours will see a reference to psychological theories and research which informs that conclusion. 

I will note, your Honours, just by the way, that Justice Gageler, in Hughes, discussed what he called “cognitive bias”.  His Honour in his judgment, particularly at paragraphs 70 and 71, and we adopt it, referred to that in the context of understanding 97, but he acknowledged that it could be understood as a form of prejudice, and we adopt what his Honour said there about cognitive bias.             It is really another way of describing the very kinds of things that are summarised at 596.  Paragraphs 71 to 72 in his Honour’s judgment we rely upon as confirming – his Honour was referring, I think, to more recent research which supported that phenomenon.

BELL J:   By this you are referring to the prejudice arising from the risk that a jury finding a person has a tendency to act in a particular way will be likely to consider that they acted on that tendency without properly estimating that chance.

MR ODGERS:   Yes.

BELL J:   So it is just another way of saying that the risk is of reasoning that the evidence proves more than it is capable of.

MR ODGERS:   Yes; moving too readily to the conclusion that he did what is alleged, based simply on the fact that he is that sort of person.

BELL J:   That is applicable to any tendency evidence.  There is a discrete form of prejudice in a case of this character about the response that jurors might have to evidence that establishes that a person has engaged in sexual contact with a child previously.

MR ODGERS:   I think that is the second aspect of the risk of prejudice that is referred to at 597, at the dot point headed “Risk of Prejudice”.  There is a reference to what Wigmore said:

the deep tendency of human nature to punish, not because our victim is guilty this time, but because he is a bad man and may as well be condemned now that he is caught, is a tendency that cannot fail to operate with any jury in, or out of court.

Then there is some interesting research – I draw your Honours’ attention to it – on what is called the regret matrix, which is:  when you are considering whether or not you have a reasonable doubt as to guilt, the fact that you are, for example, aware that he has done this kind of thing before will affect the extent to which you are going to feel regret if you get it wrong. 

I do not want to burden your Honours with the theory, but if you know he is a bad person and he has done bad things before, that may subconsciously affect your willingness to properly apply the standard of proof in determining the question of guilt, which is another way of saying the same kind of thing. 

BELL J:   One of the difficulties when you take us back to the long history of the common law’s concern about evidence of this kind is that under the Evidence Act we have come to accept that, for example, evidence proving a tendency as, if you like, general as that in Hughes, is admissible.  It is admissible because it permits a process of reasoning including:  this is a person who is attracted to underage girls, has a tendency to act on that attraction, including in circumstances in which there is a high risk of detection, ergo it is more likely that he did so on the subject occasion. 

If one goes back to Makin and the cases that followed, evidence of that character would have been considered inadmissible by reason of what would be described as prejudice.  That was the prejudice of reasoning that, because a man has committed a crime before of this character, he is more likely to commit it on this occasion.  So now the difficulty in applying 101(2) is where one draws the line. 

MR ODGERS:   I cannot disagree with what your Honour has said, but I do remind your Honour that Hughes can be understood as fitting within the Makin formulation. 

NETTLE J:   But that is because it was held to have substantial probative value ‑ real substantial probative value ‑ whereas you say it does not exist here. 

MR ODGERS:   True, your Honour, but I am responding to what Justice Bell put, that the approach of the common law is that this kind of stuff never got in, effectively. 

EDELMAN J:   Why is not the answer to that in cases like this that 101(2) directs attention to particular circumstances that might fall outside those delineated circumstances of the tendency that themselves can give rise to prejudicial effects like you have described?  For example, in footnote 1 in your reply, you talk about matters such as abuse of authority, preying on homesick boarders, caning after complaint and so on. 

Those abuse of authority type matters do not form part of the tendency complaint, but they might be matters which then lead to a question of proportionality between the substantial probative value of the tendency and the prejudicial effects. 

MR ODGERS:   I certainly accept that, your Honour, but I am not relying exclusively on that material.  What I am putting is this:  there is a big difference between the way the common law approached this kind of evidence and the way that the Evidence Act approaches this kind of evidence. 

True it is that the Evidence Act accepts that in some circumstances tendency evidence is admissible.  That is implicit.  Of course 97 is a bit tricky because that covers civil cases and evidence of anybody.  But 101 recognises that tendency evidence against an accused may sometimes be admissible.  So to that extent, I accept what your Honour Justice Bell has put to me, because there was a line of authority under the common law that it was never admissible.

But I am making two points about that.  One, one has to look carefully at that line of authority because even Makin, which said it was never admissible, recognised that it could be allowed in, for example, to meet a potential argument – a defence argument ‑ and that is exactly what we say happened in Hughes.  So Hughes could be seen to fit within the Makin analysis.  That is the first point I am making. 

The second point I am making, your Honour, is that of course this Court came to accept that sometimes propensity evidence, propensity reasoning, was permissible, but it was seen to be only in rare circumstances where you could conclude that it was highly probative.  Sometimes the reasoning involved improbability reasoning.  Of course, the common law did not need to draw the statutory distinctions between tendency reasoning and coincidence reasoning, but sometimes what was said was that in truth it showed a tendency, but the probabilities meant that it was highly probative and should be allowed in.  That was sometimes an argument. 

Let it be assumed that it was recognised under the common law that occasionally tendency evidence could be admitted.  The Evidence Act does not say how often 101(2) is going to be satisfied; it just requires a court to engage in this analysis and it does not mandate an outcome.

BELL J:   You run into the difficulty when you say, well, look, before the Evidence Act, evidence of propensity was admitted in some instances ‑ you run into the difficulty that it was not usually seen to be admitted to prove propensity.  It was accepted that evidence of misconduct on another occasion might well be admissible but generally not for the reasoning which now it is accepted that this is allowed.

MR ODGERS:   That might be true, your Honour, but in Pfennig this Court acknowledged that under the common law propensity reasoning is sometimes – it was accepted that there were cases where it had to be characterised as what I will call tendency reasoning ‑ not that Pfennig necessarily informs this Court’s analysis.

Perhaps I can put it this way, your Honours.  The very fact that 101(2) is expressed as it is in terms of requiring that it be demonstrated by the prosecutor that the probative value substantially outweighs these dangers can be seen as reflecting a cautious approach, prioritising the minimising of the risk of wrongful conviction. 

One has to give meaning or effect to two aspects of this provision contrasted with 135 and 137.  The first is the onus is on the prosecution.  The prosecution has to demonstrate that the probative value at the very least outweighs the dangers.  Secondly, it has to do so by showing that it substantially outweighs the dangers.  We would say that that is consistent with a cautious approach reflecting a recognition of the real dangers of this kind of evidence and requiring a clear demonstration that the evidence is so probative. 

To use the language of Justice McHugh in Pfennig, when he talked about these two things as incommensurables, he said that it ultimately came down to a question of whether or not the probative value was so high that it justified taking the risk of an unfair trial.  Given the cautious approach that the courts have for 100 years taken to this kind of evidence, we would say that that caution should be applied through the operation of this provision.

EDELMAN J:   Does that mean the effect of section 101, rather than section 97, is that no common law case prior to the Evidence Act would actually have been decided any differently?

MR ODGERS:   That would be our submission, yes.  I cannot demonstrate that but we would say there is no reason ‑ I am responding really to what Justice Bell has put to me, that the two are different.  We are saying that that is an assumption that may not be correct.

True it is, one difference is clear, the Pfennig test that the evidence has to have ‑ is so probative that there is no view of it inconsistent with the guilt of the accused is not adopted in 101(2).  That is a difference.  But until Pfennig the general approach to the common law was that it was a balancing of probative value and prejudice which is really the same kind of idea and Pfennig, with respect, the majority’s judgment, was really a way of giving – making the application of that balancing test work more effectively in practice.  I think that was really – the view was taken, this kind of evidence is so prejudicial, prejudicial of high order, that it would only be sufficiently probative to outweigh those dangers where it was so probative that there was no rational view of it inconsistent with guilt.  So, that was the logic that their Honours adopted. 

Now, as was held in Ellis and this Court refused special leave, Justice Spigelman – the Court of Criminal held and we do not challenge that that test is not to be applied under 101(2), but as Justice Spigelman – Chief Justice Spigelman himself acknowledged, there would be cases where the risk of prejudice is so high that the Court would only conclude that the evidence is sufficiently probative to substantially outweigh those dangers where it was so probative that there was no rational view of it inconsistent with guilt.

So, we would say that this is that kind of case but we are not inviting your Honours necessarily to adopt that approach.  We are not abandoning the proposition that that can inform the operation of 101(2) and, indeed, Justice McHugh himself in Pfennig when he held that it was not correct to adopt the majority’s test unequivocally, he himself acknowledged that when you engage in the balancing test circumstances would arise where the evidence would have to be so probative as to meet that test.

KIEFEL CJ:   The Court will now take the break.

MR ODGERS:   I could say, your Honours, that ‑ perhaps I will reflect on whether there is anything else to say but I think I have pretty much said what I want to say.

KIEFEL CJ:   Yes, thank you.  The Court will adjourn for 15 minutes.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.32 AM:

KIEFEL CJ:   Yes, Mr Odgers.

MR ODGERS:   I have not quite finished, your Honours.  Following up on the point about the difference between the common law on the one hand and the Evidence Act provision on the other, I draw your Honours’ attention to the formulation of the common law that was adopted by Justice Brennan, for example in Perry’s Case.  Can I take you to that.  It is behind tab 11, appeal book 416.

KIEFEL CJ:   How does this advance your case, Mr Odgers?

MR ODGERS:   It advances the case in that what is said in common law authorities about this kind of evidence can, we say, inform the application of 101(2) if that provision is seen to very largely reflect the common law position.  That is the argument, your Honour.  At 416 at about point 5, his Honour referred to earlier authority and then said:

Evidence of these matters is, as a general rule, excluded in criminal cases, but the second principle is an exception to that rule.  The exception is allowed only where the probative force of the evidence clearly transcends its merely prejudicial effect.

That is a very similar formulation to 101(2).  Your Honours, I do not want to burden you with too much material, but in terms of the legislative history of 101(2), I mentioned before that it was not proposed by the Law Reform Commission but your Honours might be assisted by the fact that there was some discussion in ALRC 26 about this very formulation, which is now in 101(2).  Can I just hand up to your Honours an extract from ALRC 26 where there is a discussion of this very test.  I have provided nine copies.

If I can just take you to page 463, at the first dot point is “Requirement of Substantial Probative Value”.  That was what was ultimately proposed by the Law Reform Commission.  Then below that, at the dot point “Exclusionary Discretions” it was noted that:

There remains the criticism that the existing law, together with the discretion to exclude . . . can have the effect of allowing highly prejudicial evidence to be received where its probative value, while substantial, only just exceeds its prejudicial concern.  This is a matter for concern, given the priority of minimising the risk of wrongful convictions.  A possible alternative to the proposed requirement of substantial probative value is a rule which provides that similar conduct evidence shall be excluded unless the probative value of the evidence substantially outweighs its prejudicial effect.

And then there is some discussion of that.  Ultimately, the conclusion was that that test would not be proposed but it seems likely that that was adopted by the drafters of the current provision. 

Just to finish that story, there was some additional discussion of that formulation in a research paper prepared – published by the Law Reform Commission in 1982, discussing that very formulation, which is now found at 101(2) and I will just provide – this will be my last hand‑up ‑ nine copies of the relevant parts of that research paper, number 11, “Character and conduct” from 1982.  I will not read any of it out, but the relevant part of the discussion is to look at page 115, paragraph 53, going over the page to 116 where it was noted that:

The preferable solution seems to be a discretionary balancing test.

And then the view is expressed at 116 that it would be – it could be phrased in terms of probative value substantially outweighing countervailing factors, and that discussion, no doubt, was what informed the discussion in ALRC 26.  That is all I want to say about the history of the matter, your Honours.

In terms of the outline, I should just touch very briefly on points 15 and 16.  Point 15 is perhaps more by way of reply, that the Crown is placing reliance on a Royal Commission study.  We say, anticipating that, that this Court would not place any reliance on that study, that it has been criticised.  Articles have been provided which have criticised the study, they are in the joint book of authorities.  I will not take you to them.  We say the requirements of section 144 of the Evidence Act are not satisfied and that, therefore, on that basis, your Honours would not take judicial notice of the conclusions that are drawn in that study. 

Equally, we say that reliance on conviction rates – low conviction rates for matters of child sexual abuse, do not provide any basis for an inference that evidence of this kind is not highly prejudicial – or not prejudicial at all.  In fact, I think our friends contend that there is no prejudice from this kind of evidence. 

We say that the fact there are low conviction rates tells you nothing about – because we do not know whether tendency evidence was admitted in those cases.  We just do not know what proportion of them was admitted, and in those cases where it is admitted, what are the conviction rates there.  One would suspect considerably higher, but this is all speculation and we say nothing should be drawn from conviction rates generally to an inference about dangers of prejudice. 

Paragraph 16 deals with the issue of jury directions.  There has been a view expressed sometimes that juries must be assumed to follow all directions given to them.  We say that it must be more nuance than that.  There are some directions where one could be confident that they will be followed, others where telling a jury not to act – to be emotionally affected by something is an example of where one hopes that they can avoid it, but I would not necessarily be confident of that.  And, indeed, you do not get a direction about giving it appropriate weight so you do not even have directions about that.

So the point we make is that, as was pointed out by Justice Hoeben in Sokolowskyj, in this field the effectiveness of directions to the extent that they are given, must be approached with a degree of care when one is assessing the prejudicial impact that evidence may have, on a tribunal effect. 

Quickly, your Honours, unfortunately, I was distracted when I was taking your Honours through Justice Meagher’s judgment.  I think I reached paragraph 108 ‑ I am sorry, 111 of his Honour’s judgment.  Given where we are in the argument, I am not going to take your Honours through it in any detail but I do need to say just a little bit more, if I might; in the core appeal book 140.  I think Justice Nettle asked me a question and I responded to it and then I went off track.  I am not blaming Justice Nettle, it is my fault.

So, paragraph 111, I rely on that analysis and I say there is no inconsistency with Hughes, and then at 112 his Honour dealt with the third of the matters which was the general nature of the tendency and his Honour analysed that and, we say, in a way that is persuasive. 

In that context, the prosecutor relied on similarities between the circumstances, particularly the circumstances ‑ conduct and the circumstances to support a conclusion of significant probative value.  It was in that context that his Honour then proceeded to analyse those similarities and to point to the fact that there were dissimilarities going over the page to paragraphs 116 and 117 to demonstrate, we say persuasively, that when one looked carefully at the circumstances of, on the one hand, the alleged offending and, on the other hand, the tendency evidence, that this was not a case where the evidence had significant probative value and there was an absence of sufficient similarities, bearing in mind that the prosecution argument was they were sufficiently similar to have significant probative value. 

His Honour was not satisfied of that.  We say he was right not to be satisfied of that and his Honour, indeed, at 118 responded to the analysis of the majority to make the point that the mere fact that you have a sexual interest does not have significant probative value to show that you did act on that interest, absent evidence that you would take any opportunity to do it, and his Honour said there was no evidence of that, bearing in mind the 10‑year gap, in particular.  We adopt what his Honour’s analysis is at 116 through to 118.

Your Honours, I think that is all, subject to two things.  One, the proviso that has not been raised and I do not understand that that is sought

to be relied upon.  The other is an order.  Your Honours may have noticed that we did not actually ask for a new trial.  I appreciate that normally that would be the appropriate order.  Our only argument against it is that the appellant was sentenced to a non‑parole period of four years.  That expires on 12 February next year.  It is likely then that if he were successful in this appeal that the decision of this Court would be handed down in circumstances very close to the end of his non‑parole period.  That is not a determinative factor.  We appreciate that.  Your Honours have a discretion.  We would respectfully submit that the discretion should be exercised not to order a new trial.  Unless I can assist your Honours further, those are our submissions.

KIEFEL CJ:   Yes, Mr Babb.

MR BABB:  Your Honours have my outline of oral submissions.  Your Honours, the tendency evidence, I submit, demonstrated that as a mature male the appellant had a sexual interest in young adolescent boys who were under his supervision or authority and he was prepared to act on that sexual interest by abusing such boys.

That tendency my learned friend has described as tendency at a high level of generality.  That is not so, in my submission, because the evidence demonstrated that the appellant had that sexual interest in a narrow class of people – young adolescent boys between the ages of 11 and 13 years – who were under his supervision and authority.  In summary, there was particularity in gender, the tendency, the age of the person he was attracted to and the nature of the relationship. 

The tendency evidence had significant probative value.  It was evidence of a tendency to have a particular state of mind and a tendency to act.  He acted on that interest on more than one occasion in relation to each of the tendency witnesses and in respect of more than one child.

That tendency evidence strongly supported proof of the facts in issue in the trial.  The issue here was not the identity of the offender but whether the acts occurred at all.  The complainant gave evidence that the appellant had committed each of the acts alleged, and it was the appellant’s case that none of those acts had occurred.

In those circumstances, the probative value of the tendency evidence came from, firstly, the particularised tendency being capable of demonstrating that the appellant had a motive to commit the alleged acts; that is, the fact that the appellant had a sexual interest in young adolescent boys and that the evidence was capable of demonstrating that the appellant had a sexual interest in this young adolescent boy.

The particularised tendency demonstrated that the appellant had previously overcome any inhibitions and had acted on that sexual interest in the past.  That evidence is different to the use of the evidence in Hughes in that it does largely go to the probability of this accused having acted in relation to young boys under his authority, in this narrow age bracket, in the past and the probability of his having acted as the complainant in this case so alleged.

If we could go to the question of the passage of time.  The impact that that has on the capacity of the evidence to establish the tendency is something that I will address shortly.  But my submission is that, if these acts had occurred and there was a short passage of time between them, clearly the evidence had significant probative value.

KIEFEL CJ:   Is 10 years a short period of time?

MR BABB:   No, your Honour, I was ‑ ‑ ‑

KIEFEL CJ:   You are referring to the tendency evidence itself, not the gap between that and ‑ ‑ ‑

MR BABB:   And had there not been a gap then clearly there was significant probative value in the evidence.  The question is, in my submission:  has the passage of time impacted upon the capacity of the evidence to establish the tendency to act because of the passage of 10 years?

KIEFEL CJ:   Dr Quadrio’s evidence only goes so far in this respect, I think.  I do not think it was put to Dr Quadrio.  She said, in the respondent’s further materials at page 50, at about line 40: 

not everyone will act on their fantasies.

MR BABB:   She accepted that, your Honour.

KIEFEL CJ:   Dr Quadrio went on to say, at 24, one:

would expect . . . sexual interests to remain fairly stable –

but I do not think it was put to her as an expert witness that, once a sexual interest has been acted upon, whether one can assume that that will continue to be the case.

MR BABB:   No, it was not, your Honour.  The acting on a sexual interest depends on more than the existence of the sexual interest; it depends on other circumstances that can impact upon it.

KIEFEL CJ:   But your argument for the admission of the tendency evidence relies upon the fact that the appellant did act upon the interest in the past, but the question remains:  how one extrapolates from that over a 10‑year period when there is no evidence that he continued to act upon that interest.

MR BABB:   That is my difficulty, your Honour.  I do say, however, that the majority of the Court of Criminal Appeal was correct to accept that it was not particularly controversial for a jury to be asked to infer that a sexual interest in young teenage boys – that is, a focus on the sexual interest – would be unlikely to become attenuated in the space of 10 years.  That is a conclusion completely consistent with Professor Quadrio’s evidence.

KIEFEL CJ:   Yes.

BELL J:   Accepting that and, as I understand the majority’s analysis, their Honours were not depending on expert evidence that had not been adduced at the trial.  Their Honours were saying that, as a matter of ordinary human experience, it is reasonable to draw that inference.  Accepting that for present purposes, the critical issue here is the capacity to make it more likely that he acted on that interest to know that, 10 years earlier in different circumstances, he had indulged that interest with two boys.

MR BABB:   What I point to in that regard is that there was no evidence that the appellant received any treatment or counselling in the interim period.  There was no doubt that the other offending had occurred.  It was unchallenged.  In those circumstances, my submission is that the elapse of 10 years is not such as to deprive the evidence of significant probative value.  It certainly impacts upon the probative value.  There is no doubt that, had the offending occurred in a more compact passage of time, the probative value was high at the time and is important in the assessment of whether the tendency is capable of being established by the evidence.

BELL J:   The other thing is that the only evidence of the tendency to act on a sexual interest in young teenage boys was of, as it were, succumbing to that interest in circumstances where the young boys had come into the assistant master’s room because they were homesick and vulnerable and it had started off as quasi innocent comforting and progressed to acting on the interest, in some respects quite different circumstances to the subject of the charged counts.

MR BABB:   In some respects, your Honour.  But, I do maintain that, even with the tendency offending, there was relatively little grooming.  If one looks at A, that movement to the oral sexual offending occurred in a way that lacked the history of grooming that one would generally expect.  That established an element of risk‑taking that certainly was nowhere near as comprehensive as that observed in the case of Hughes.

EDELMAN J:   Why is grooming or risk‑taking relevant here if it was not part of the tendency that was put at trial?

MR BABB:   I was really dealing with her Honour Justice Bell’s direct question on that part, that that is another challenge I face, your Honour, in that, as my learned friend has put against me, it was not addressed on by the Crown Prosecutor at trial.

Can I move to the section 101 considerations.  Your Honours, section 101, like section 97, was intended to make substantial changes to the common law.  It clearly abrogated the common law “no rational explanation” test.  I would ask your Honours to follow the relatively recent authority that said just that of IMM:

Any assessment of the prejudicial effect of tendency evidence does not include the “legitimate capacity [of the evidence] to inculpate” an accused.

Chief Justice Gleeson made that point in HML:

As s. 97 expressly permits tendency reasoning, the prejudicial effect of such evidence does not relate to the legitimate capacity of the evidence to inculpate by way of tendency (as opposed to coincidence) reasoning.  The “more than a century of case‑law” relied on by the appellant ARS at [12]) must be viewed with caution. 

I pick up the discussion in my paragraph 8 and that was had with my learned friend:

For much of its history, the common law did not permit the admission of propensity evidence

My learned friend’s submission that you would use the discussions about caution that are detailed in the common law cases is one that needs to be looked at with caution.  Even where there is a reference to propensity, if one looks at the cases, and my learned friend started with Makin, that was a coincidence case, a similar‑facts case, and almost all of the cases are.  The discussion about the need for caution has to be viewed through the lens of the fact that tendency reasoning was absolutely prohibited. 

NETTLE J:   But it has been a long time, going right back to Thompson with the powder puffs.  It had similar‑fact evidence showing sexual propensity.  The common law has dealt with it and it has dealt with it on the basis of the Christie discretion.  Is 101 any different?

MR BABB:   It is different.  My only submission is that, when looking at the old cases, they need to be viewed with caution.  There is no doubt that there is some overlap in terms of the balancing exercise, but it is not the same exercise because of the formulation of section 97 and the allowance of tendency evidence in its current form.  It is different to that that occurred at common law. 

NETTLE J:   I take your point.

MR BABB:   Nonetheless, the admission of tendency evidence may give rise to a risk of prejudice.  My learned friend indicated that I may not accept that.  I do accept that and I accept the categories that are outlined in the decision of Hughes at paragraph 17:

The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue.  Or the jury may underestimate the number of persons who share the tendency . . . there is the risk that the assessment . . . may be clouded by the jury’s emotional response to the tendency evidence.

They are all things that need to be taken into account in relation to the 101 discretion.

BELL J:   When one looks at the statement that Chief Justice Gleeson made in HML, making the obvious point that all evidence that is probative of guilt can be categorised as prejudicial viewed from the accused’s point of view, there is a distinction. 

HML was concerned with single complainants giving an account of the history.  The point that was also made ‑ I think, in the analysis of Justice Hayne in that case ‑ was that there is not a lot of added prejudice in a case where one is looking at a complainant’s evidence of charged acts and his or her assertion of some other sexual misconduct.  Somewhat different considerations apply when one comes to the 101(2) test, when one looks at leading evidence of other criminal conduct committed against other persons many years earlier. 

MR BABB:   That is no doubt the case, your Honour.  The question is, though:  where is the right line to be drawn?  The Court should not be drawing the line too heavily in favour of exclusion, noting the admissibility of tendency evidence, and one of the difficulties with assessing where the line should be drawn is that the common law authorities, describing a high risk of prejudice, relied on judicial assumption and some support from studies which they said ‑ that indicated that juries may tend to too readily assume that past behaviour is an accurate guide to future behaviour or that evidence may cause a jury to become biased against an accused person.

It is difficult to make that assessment and more recent research has been conducted by the Royal Commission into Institutional Responses to Child Sexual Abuse that indicates that the risk that juries engaging in such prejudicial form of reasoning is not unduly high.

In particular, the empirical research commissioned by the Royal Commission found that the mock juries that they used in their study ‑ and there were 1,029 mock jurors used in a number of different circumstances and all their deliberations were taped and reviewed and there were exit surveys with them – the Royal Commission study found that jurors were capable of distinguishing between counts and basing their verdicts on the evidence that pertained to the accounts, and the study found no evidence that decisions to convict were the result of impermissible reasoning, including bias.

Your Honours, in light of my friend’s submission that your Honours should not take that study into account, my submission is that the Royal Commission research is not being tendered as evidence but material that the Court should have regard to when determining the correct approach of the application of section 101 and determining where that line gets drawn.

There is no suggestion that this material would be put before a jury but it is important that this Court consider the Royal Commission research because in this case the appellant has relied on common law authorities that used judicial assumption and research to support propositions that possible prejudice flowing from the admission of tendency evidence is high.  The Royal Commission research is the most up to date study from a very relevant recent royal commission.  It is, in my submission, similar to the use that can be made of Law Reform Commission material as extrinsic material.

NETTLE J:   That goes in because the Parliament is taken to have acted on the basis of the Law Reform Commission’s recommendations, both at common law and at statute.  This is different.  This comes after the event.

MR BABB:   But Parliament did not act on the Law Reform Commission’s recommendations in relation to this section and it is still useful material, in my submission, and ‑ ‑ ‑

EDELMAN J:   You are not asking us to have regard to it in determining what meaning Parliament intended by the words.  You are asking us to have regard to it for the substantive, social science research conclusions.

MR BABB:   Exactly.

NETTLE J:   Can we do that?

MR BABB:   In my submission, your Honours ‑ ‑ ‑

NETTLE J:   It is untested, it is untried, no one has ever heard of it before.  It comes out of the blue.  What weight is one to put upon it?

MR BABB:   It was reviewed by experts in the jury research field.  It is subject to some criticism, all research is, as is the research that is cited in the common law cases.

BELL J:   Your submission is at least ‑ it may be more than this and I appreciate that ‑ but it is at least that this Court in 2018 would view with some circumspection statements in the early part of the last century that were based on assumptions often not said to be based on research but rather on unique judicial knowledge about issues of prejudice of the kind that was identified in cases from Christie onwards and Thompson and so forth.  I mean, that is the essence of your submission.

MR BABB:   That is the essence of my submission.

BELL J:   Nonetheless, the Court does have to engage in the 101(2) task and that requires some content be given to the notion of any prejudicial effect on the defendant.  It is difficult to see that informing a tribunal of fact that a person has, in the past, engaged in breaking and entering would not be thought to be irrelevantly on whether they have engaged in the subject break and enter, so one comes back to the capacity of the proven earlier offences to rationally, significantly, bear on the determination of that factual issue.

MR BABB:   Yes, very much so, and in that example, significantly there is a different state of mind with that sort of offending, a not uncommon state of mind, that is a desire for money or objects, as opposed to what I submit in this case is an unusual state of mind, that is a sexual interest of a mature man in young adolescent children.

Your Honours, in the present trial my submission is that the jury directions did mitigate the risk of prejudice.  In particular, the trial judge directed the jury that it would be completely wrong to reason that, because the appellant may have committed one crime or been guilty of one piece of misconduct, they would then find that he committed each count and that they needed to be individually considered and proved beyond reasonable doubt and that they should not let sympathy, emotion, bias or prejudice sway their determination.

One example where section 101 may, relevantly, be used is where the seriousness of the tendency offending is far more serious than the offending in question, so there the capacity to impermissibly prejudice is greater, in my submission.

EDELMAN J:   Would that also apply where the tendency evidence is far more particular than the extent to which the tendency is relied upon?  So, for example, the matters that the appellant refers to in reply relating to, essentially, abuse of authority?

MR BABB:   In my submission, it does not, and I rely on Justice Meagher’s and the majority’s analysis in this particular case as to why those particular four features did not create undue prejudice in this particular case.  There are some examples.  Another example that may see section 101 invoked is where the tendency evidence would overwhelm the substantive counts, not because they were more serious but because of the factual dispute in relation to them being even more lengthy and complex than the dispute in relation to the charged counts.  Here, again, the opposite situation occurs in that there was no challenge to the tendency evidence.

So, when one looks at the tendency evidence, in terms of the amount of time spent in court, it was short, compact and did not overwhelm the complainant’s evidence in any way.  So they are two examples that I would see as being relevant to a consideration of section 101.  In my submission, in this case the probative value of the evidence was strong.

The prejudicial effect was limited because none of those factors occurred.  In my submission, none of the factors identified in Hughes at paragraph [17] were likely to unfairly impact because of the directions, and the appeal should be dismissed.

If your Honours are against me on that, I do not rely on the proviso and there would be no need to consider it.  However, I will just address you briefly on my learned friend’s submission that there should be no order for a new trial.  There should be an order for a new trial.  That is a question for the exercise of the prosecutorial discretion, in my submission.  I am best placed to determine and balance the interests of the public and the complainant.  There is utility, even if there is no gaol time to be served, in convictions being recorded.  They are my submissions.  Thank you, your Honours. 

KIEFEL CJ:   Any reply, Mr Odgers?

MR ODGERS:   Yes.  In respect of the Royal Commission’s study, the Court is effectively being asked to take judicial notice of the conclusions in that study.  Just as in Aytugrul, the High Court was being asked to take judicial notice of research that went to how juries respond to certain kinds of DNA evidence.  Section 144 of the Evidence Act, which in Aytugrul was held to apply, mandates that the material that is relied on for the taking of judicial notice:

knowledge that is not reasonably open to question and is:

(a)    common knowledge –

not in that field:

or

(b)capable of verification by reference to a document the authority of which cannot reasonably be questioned.

In my respectful submission, those requirements are plainly not met with respect to this research report, particularly bearing in mind the two articles which are found in the materials behind tab 18 and tab 19 by highly respected academics heavily criticising the methodology and conclusions of that research report.  How it could be concluded that it is not reasonably open to question conclusions which effectively were, as I understand it, that evidence of child sexual abuse does not prejudice juries.  That is really the ultimate conclusion.

That is a proposition where one’s initial reaction is “that sounds implausible” but, whether or not it is reasonably open to question, bearing in mind the heavy criticism of those articles, I think the answer, with respect, must be that it is.  It is reasonably open to question and therefore 144 is not satisfied and therefore the Court would not take judicial notice of that report.

In contrast, the material that was referred to in the ALRC is – your Honours are permitted to take into account even if pursuant to section 3(3) of the Evidence Act because that provision in the New South Wales Act specifically says that:

Without limiting the effect of, and subject to, section 34 of the Interpretation Act 1987, material that may be used in the interpretation of a provision of this Act includes any relevant report of a Law Reform Commission laid before either House of the Parliament of the Commonwealth before the provision was enacted.

Now, true it is that the provision as enacted is not exactly the same as that proposed by the Law Reform Commission but, nonetheless, it is relevant because there was a discussion of probative value, there was a discussion of dangers of prejudice, there was a discussion of various alternative solutions like the very solution that has been adopted in 101(2), all of that discussion is, we say, of assistance – would be of assistance to this Court in understanding and applying section 101(2).

If I could just say something about something that fell from your Honour Justice Nettle when your Honour referred to similar fact evidence and I think – perhaps I am wrong – that that has been dealt with by the common law in the application of the Christie discretion. 

My submission is that that is not entirely accurate, your Honour, that as was demonstrated by the quotation I took you to from Justice Brennan, and indeed my understanding of the weight of the common law at least in the 1980s and the 1990s in the High Court, was that, in contrast to the Christie discretion, firstly, the onus is on the prosecution to justify admission of the evidence, in contrast with Christie ‑ ‑ ‑

NETTLE J:   I take your point and this is all the Hoch developments and so forth, but talking about the older approach ‑ ‑ ‑

MR ODGERS:   I am talking about prior to Hoch and prior to Pfennig.  I am talking about a position which existed in both the United Kingdom and Australia, prior to Hoch and Pfennig, which was essentially a balancing test very similar to 101(2). 

The point was that similar fact evidence would not be admissible on that common law approach unless the probative value of the evidence outweighed – and the onus is on the prosecution and it was said to be not a discretion but a rule of admissibility that the prosecution had to demonstrate that the probative value outweighed the dangers of unfair prejudice – and it was formulated sometimes, as Justice Brennan did, in terms of clearly outweigh the dangers of unfair prejudice, and so we respectfully submit that 101(2) needs to be understood in terms of that common law history of caution that is appropriate particularly where it reveals other criminal acts, as Justice Bell mentioned, that the caution inherent in 101(2) has particular application.

Lastly, this is not strictly in reply but it is the last thing I have to say, caution has to be exercised in approaching section 101(2) through the prism of the fact that it may be that the evidence has got through 97.  It would be

quite wrong to infer from the fact that it has got through a test which is intended to apply to civil evidence, to evidence that is led by defence in a criminal trial, to any circumstances, that means that 101(2) is not really a significant hurdle to be jumped, that would be an erroneous approach.

Given that 97 has this general application designed for all circumstances in which tendency reasoning is to be adopted, it is 101(2) which focuses on the cases where it is led against an accused, where it is likely to involve prior other criminal acts where the prejudice is likely to be high and where it very, we say, clearly indicates that caution must be applied before the evidence is to be admitted so where the Crown has to demonstrate that the probative value is sufficient to “substantially outweigh” what we say are the inevitable dangers, risks, of unfair prejudice.  May it please the Court.

KIEFEL CJ:   The Court will adjourn to consider the course it will take.

AT 12.20 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.22 PM:

KIEFEL CJ:   The Court is unanimously of the view that this appeal should be allowed.

The orders of the Court are that the appeal be allowed, the orders of the New South Wales Court of Criminal Appeal be set aside and in lieu thereof order that the appellant’s appeal to that court be allowed and that there be a new trial.  Reasons will be published at a later date.

The Court will now adjourn to 9.45 am tomorrow.

AT 12.23 PM THE MATTER WAS CONCLUDED