McPhillamy v The Queen

The High Court of Australia heard an appeal from McPhillamy, who had been convicted of sexual offences against an altar boy, "A". The alleged offences occurred between November 1995 and March 1996 in the public toilets of a cathedral, where the appellant, an acolyte, supervised the complainant, an 11-year-old altar boy. The complainant's evidence detailed two separate occasions of sexual misconduct by the appellant. The appeal to the High Court followed a divided decision in the New South Wales Court of Criminal Appeal regarding the admissibility of certain tendency evidence.

The central legal issue before the High Court was whether evidence of the appellant's prior sexual misconduct, occurring approximately ten years before the charged offences, possessed sufficient probative value to be admitted as tendency evidence under section 97(1)(b) of the *Evidence Act*. This tendency evidence concerned allegations that the appellant, while working as an assistant housemaster, had sexually offended against boarding students who sought him out in private. The tendency was expressed as the appellant having a sexual interest in young teenage boys under his supervision and acting on that interest.

The High Court allowed the appeal, concluding that the tendency evidence did not possess significant probative value. The Court reasoned that the ten-year gap between the prior conduct and the charged offences, coupled with the absence of any other evidence of offending during that period, diminished the evidence's capacity to demonstrate a propensity on the part of the appellant to commit the charged offences. The Court found that the tendency, as expressed, was too general and lacked the necessary connection to the specific circumstances of the alleged crimes against "A" to outweigh its prejudicial effect.

Consequently, the High Court set aside the orders of the New South Wales Court of Criminal Appeal and, in lieu thereof, ordered that the appeal to that Court be allowed and that there be a new trial.