R v AA - [2020] NSWDC 362

District Court

New South Wales

Medium Neutral Citation: R v AA [2020] NSWDC 362
Hearing dates: 20 & 21 April 2020
Decision date: 23 April 2020
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
I admit evidence identified by the Crown in its ‘Tendency Notice’ as “Cross Admissible” as relevant to establish the two particular tendencies that have significant probative value.
The evidence of “Uncharged Acts” are, in reality, not suitable for ‘charging’ and are not admissible as tendency evidence but are available as evidence of “context” and/or “relationship”.
The “Other Evidence”, as described in the Crown’s ‘Notice’, does not have significant probative value, if otherwise it ought not be admitted pursuant to s 101 Evidence Act 1995.

Catchwords:
Interlocutory orders – admissibility of tendency evidence

Legislation Cited:
Criminal Procedure Act 1986
Evidence Act 1995

Cases Cited:
BP v R [2010] NSWCCA 303
Ceissmann v R [2015] NSWCCA 74
DAO (2011) 81 NSWLR 568; [2011] NSWCCA 63
Demirok [1976] V.R. 244
DPP v RDT [2018] NSW CCA 293
DSJ v R (2012) 84 NSWLR 758; [2012] NSWCCA 9
Hughes v R (2017) 263 CLR 338; [2017] HCA 20
IMM v R (2016) 257 CLR 300; [2016] HCA 14
JG v R [2014] NSWCCA 138
Jones v R [2014] NSWCCA 280; (2014) 246 A Crim R 425
McPhillamy v R [2018] HCA 52; (2018) 92 ALJR 1045
Mol v R [2017] NSWCCA 76
Pfenning v R [1995] HCA 7; 182 CLR 461
R v Bauer [2018] HCA 40; (2018) 92 ALJR 1045
R v Carroll (2002) 213 CLR 635; [2002] HCA 55
R v Dent [2016] NSWSC 99
R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
R v Watkins [2005] NSWCCA 164; (2005) 153 A Crim R 434
Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136
Sokolowskyi [2014] NSW CCA 55, 239; (2014) 239 A Crim R 528

Category: Procedural and other rulings
Parties: Regina (Crown)
AA (Accused)
Representation:
Counsel:
Mr A Terracini (DPP)
Ms M Swift (Accused)
Solicitors:
Ms C Patrizi (DPP)
Ms C Younes (Accused)

File Number(s): 2018/00137078
Publication restriction: No

Judgment

Introduction

The Crown has filed an indictment in the following terms, that the accused:

“Between 1 November 1986 and 30 November 1986, at X in the State of NSW, did have sexual intercourse with CC without his consent and knowing that CC had not consented to the sexual intercourse.

Between 1 November 1986 and 30 November 1986, at X in the State of NSW, did have sexual intercourse with CC without his consent and knowing that CC had not consented to the sexual intercourse.

Between 5 April 1987 and 25 April 1987, at X in the State of NSW, did have sexual intercourse with CC without his consent and knowing that CC had not consented to the sexual intercourse.

Between, 5 April 1987 and 25 April 1987, at X in the State of NSW, did have sexual intercourse with CC without his consent and knowing that CC had not consented to the sexual intercourse.”

The trial of the accused is listed to start on 18 May 2020. The matter was listed before me in mid November 2019, not as the trial judge but as a judge available to hear pre-trial applications, particularly to determine the primary issue of whether relevant medical and counselling notes were “protected confidences” which could not be provided to the accused in response to subpoenas issued by his then legal representative. I gave a judgment in relation to that matter on 15 November 2019 immediately prior to travelling to Orange to conduct sittings there for the next three weeks. The matter returned before me on 18 December 2019 to deal with other outstanding issues including an application to examine the complainant in relation to matters of sexual history, other than his alleged relationship with the accused, an application for trial by ‘judge alone’ and to determine whether the Crown could rely upon ‘tendency evidence’ in proof of guilt of the accused in respect of the matters proposed to be tried. I gave a judgment on that date in relation to limited aspects of the outstanding matters, excluding trial by judge alone and tendency issues.
The matter was to be further conducted to primarily resolve the issue of whether the Crown be permitted to rely upon “tendency evidence” in March 2020, however the then solicitor for the accused withdrew and other legal representatives had to be retained. I listed the matter before me on 27 March 2020 but the ‘defence’ was unable to proceed, so the matter was relisted for hearing on 20 and 21 April 2020 to permit resolution of pre-trial issues before the proposed starting date of the trial. These various applications and hearings proceeded on the assumption that I would not necessarily be the trial judge. Having had to grapple with the intricacies of the “protected confider” material I was in a position to deal with the other pre-trial issues. In fact the trial date was apparently set by the parties without consultation with me with the result that the current trial date is one when I will be unavailable.
Since mid-March however there has been a considerable change in the legal landscape because of the COVID-19 pandemic. At the time of delivering this judgment this court understands that the District Court is unable to conduct jury trials at least before 31 May 2020. Trials by judge alone can be conducted. There are other issues to be considered in determining whether a trial by judge alone in a particular instance is feasible given the interests of legal representatives and witnesses to be protected from the risk of infection by the virus. The courts are required to take a pragmatic but sensible approach to the resolution of the competing interests. It is in the context of the accused’s desire for the matter to be resolved as quickly as possible that an application was foreshadowed for a trial by judge alone, which is opposed by the Crown. On 20 April 2020 I discussed with the parties the fact that the court could take judicial notice of the current situation concerning the pandemic having spent the previous three or four weeks conducting proceedings under the current regime of “virtual courtrooms’ in most cases, having sentenced a number of people where issues relevant to sentence arising from the pandemic were raised by both Crown and defence, having dealt with persons in custody supposedly subject to social distancing requirements sought to be put in place by the Department of Corrective Services and having received detailed evidence and submissions in relation to relevant issues in sentence matters and on bail applications. Further, Judges of this court have received a number of directions, ‘Amended Practice Notes’ and the like from the Chief Judge. As it transpired the application for trial by judge alone at this time has been withdrawn. One last matter to note is that the Criminal Procedure Act 1986 (CPA) has been amended in late March to now permit pre-recording of evidence in certain circumstances that previously could not be pre-recorded (see ss354-8 CPA).
As I understand the matter, in relation to the tendency evidence sought to be adduced, the accused objects to any reliance upon tendency as particularised in the ‘Tendency Notice’ of 15 April 2020 (subject to some amendment by the Crown). The Notice I will set out in detail later, but to categorise what the Crown seeks to lead from the evidence available to the court and the Notice, the Crown would seek to establish particular tendencies alleged to be possessed by the accused by relying upon:

the evidence of the complainant in respect of one count to establish the guilt of the accused in relation to another count, or other counts, and vice versa,

evidence of the complainant in respect of “uncharged acts” in the same respect, ((i)and(ii) described as “Cross Admissibility” and “Uncharged Evidence”, evidence in the ‘Tendency Notice’ and the defence submissions,

the evidence of witness LL of conversations he had with the accused as summarised at paragraphs 12, 13 and of his affidavit sworn 20 August 2019 as admissions to having relevant tendency (or tendencies),

the evidence of witness KK in a police statement as to the character and detail of his sexual relationship with the accused in 1989 and their conversations, as evidence of admissions of relevant tendency(ies),

evidence relating to the accused’s activities in 1992, including related documentation either prepared by the accused or of which he would have been aware, the subject of police investigation in 1996 (including the electronic interview with the accused in relation to those matters) as evidence of relevant tendency(ies), and

material obtained in a psychological report prepared in March 2015 as admissions of having a relevant tendency (or tendencies).

These areas of tendency evidence are split into 3 categories in the ‘Notice’ and the defence submissions: ’Cross Admissibility’((i) above), ‘Uncharged Acts’( (ii) above) and ‘Other Evidence’ ((iii)-(vi) above). I understand that the parties generally accept my categorisation or analysis of that evidence.

In relation to this matter I have a bundle of material provided by the Crown which includes the draft indictment, the Crown case statement and the ‘tendency notice’ which have been incorporated into this judgment. I have two statements from CC (that is the complainant named in the indictment), the statement of KK and the affidavit of LL as well as the documents that relate to (v) and (vi) above. I also have other documentary exhibits, including records of the Roads and Maritime Services Department concerning the licence record of the complainant.
The ‘Crown Case Statement” sets out a great deal of detail about the context of the alleged offending. At the risk of setting out details that will be repeated in that Crown case statement, I outline in just a few sentences the context of these various applications. At the relevant time of the offending alleged by the complainant the accused was 33 or 34 and the complainant was 16 or 17 years of age. The accused at the relevant time was a Priest of the Roman Catholic Church and the complainant and his family were parishioners of the Catholic parish in X where the accused was based. The accused provided religious services to the X community and particularly to the local Catholic High School where at relevant times the complainant was a student. The accused was a homosexual who had subsequent consenting sexual relationships with KK and LL with no suggestion of illegality in the character of the sexual activity, such as acting contrary to consent. The accused also continued to have a sexual relationship with the complainant in circumstances which as I understand the matter are not criminal, either by regard to the age of the complainant or the character of the sexual conduct.
The accused in the psychological report referred to in 5 (vi) above gave a history of being sexually attracted to males since he was 14 or 15 years of age and that in the early 1990s he had an interest in, homosexual “pornography”. He is said to have made admissions about his interest in “adolescent males” in the past and particularly obtaining “pornographic photographs” of adolescent males in the early 1990s. He made an admission that he engaged in a relationship with at least one partner who may have been under the age of 18 years in the past when spoken to in 2015.

The Crown case (from the Crown Case Statement)

The complainant was born in 1970. It is alleged he was 16 years, possibly 17 years of age when these offences were committed. The accused was born in 1953.
During the relevant period, the complainant was living in X with his mother, father, brother and two sisters. The complainant was raised in the Catholic religion, attending church every Sunday with his family as member of the X Catholic Parish. The complainant’s mother was involved in church fundraisers and his father was involved in a Catholic men’s society.
Between 1983 and 1988, the complainant attended the local Catholic High School in X. The Priest and religious services for the school were provided by the X Catholic Parish.
The accused was ordained a priest in 1980, and in 1984 was appointed as the Assistant Priest in the Catholic Diocese of Y. From 1984, the accused provided religious services to the X community and the local Catholic High School. During this time, the accused lived in an apartment at the Presbytery.
After the accused arrived in X, the complainant’s mother invited the accused to her home for dinner to meet the family. This is the complainant’s first memory of meeting the accused. The accused was highly trusted and respected by the complainant’s family and the community as a ’Man of God’.

Conduct leading to Offences

The complainant began to attend and participate in a local Youth Movement, a social gathering for religious youth which was organised through the Church. The group would meet every Sunday night in the parish hall and the accused would be present.
After one of the group meetings, the accused asked the complainant if he wanted to go to his place to have a chat. The complainant agreed and went across the road to the presbytery with the accused and entered his apartment. The accused and the complainant sat in the apartment and played some music and chatted for about 40 minutes. The complainant left the residence after this. These kinds of meetings occurred about a dozen times.
The complainant said he obtained his Learners Licence sometime around his 16th birthday. The accused offered to give the complainant driving lessons and the complainant’s parents gratefully accepted the offer. In evidence from the Department of Roads and Maritime Services that the complainant, according to its records was issued his “Learner’s Licence” in 1987.
During November 1986, the accused was giving the complainant a driving lesson in his silver Peugeot. During the driving lesson the accused suggested that he and the complainant go “skinny dipping” at a swimming spot in the local river. The complainant told the accused he had no swimming gear, but the accused suggested he swim in his underwear. The complainant drove the accused’s car to the river, where the accused went swimming naked and the complainant wore boxer shorts. After the swim, the complainant drove the accused back to the presbytery. During the drive the accused said to the complainant “I will have a shower, why don’t you come up and have a shower before you go home”. The complainant declined to shower but agreed to come up to the accused’s apartment.
Once inside the apartment, the accused went to his bedroom and undressed. The accused then walked naked in front of the complainant, from his bedroom to the bathroom. The accused yelled to the complainant and suggested that he pull up a chair outside the bathroom so they could continue their conversation while the accused showered.
The accused left the shower curtain slightly ajar as he and the complainant continued their conversation. The complainant could see the accused showering through the gap in the shower curtain. The complainant saw the accused’s penis was erect as he was washing himself and the accused occasionally massaged his penis with soap. The accused continued speaking to the complainant and maintaining eye contact as if nothing was amiss. Whilst this was happening, the complainant felt very uncomfortable, as if he should not have been there.
The accused finished showering and dried himself in front of the complainant. The accused told the complainant he should be on his way home and the complainant left. The complainant did not tell his parents about what had passed between him and the accused because he did not think they would believe him.

Count 1 – Sexual assault without consent – s61D (1) Crimes Act 1900.

A couple of weeks later, on a Sunday evening in November 1986, the complainant attended a Youth Movement meeting. After the meeting, the accused invited the complainant up to his residence to have a chat. The complainant agreed, as he had on previous occasions, and the pair walked across the road to the presbytery apartments.
Once inside the apartment, the accused asked the complainant if he would like a massage. The complainant had never been physically touched in such a way before and he was interested. The complainant accepted and the accused told the victim to remove his shorts and shirt and lay down on the bed on his stomach, with his arms by his side. The accused then massaged the complainant on the shoulders and back using baby oil. The baby oil was getting onto the complainant’s shorts and the accused said to the complainant “we should take those off”. The accused then got off the bed and pulled the complainant’s shorts all the way off. The accused did not get back on the bed straight away and the complainant noticed that the accused started to get undressed. The complainant froze, his body became heavy and he felt as if he could not physically move or talk. The accused then got back on the bed and sat on top of the complainant’s legs, at the base of his buttocks. The complainant looked over his shoulder and saw that the accused’s penis was erect.
The accused moved towards the complainant and placed both of his hands on either side of the complainant’s head. The accused gripped the complainant’s head firmly with his hands behind his ears and directed the complainant’s head towards his erect penis. The complainant was in a nervous panic and felt frozen, feeling as if he could not act against the accused as a man of authority. The accused put his penis into the complainant’s mouth and the complainant was unable to pull away and determined that it was clear what the accused wanted him to do. The complainant began to move his head up and down inserting the accused’s penis in and out of his mouth, whilst the accused maintained his grip on the complainant’s head. The complainant continued but was worried that he may contract AIDS as the news said it came from gay sex and sodomy. The complainant stopped and said to the accused, “I do not want to get AIDS” and the accused said, “don’t worry I’ll use a condom”.

Count 2 – Sexual assault without consent – s61D (1) Crimes Act 1900.

The complainant saw the accused get up and go to the bathroom and put a condom on. The accused returned to the bed and turned the complainant over onto his stomach. The accused then inserted his penis into the anus of the complainant, using the baby oil as lubricant. The complainant felt a sharp pain, as if something was tearing inside him and he immediately said, “please stop, it hurts”. The accused continued to thrust his penis in and out of the complainant’s anus and replied, “you will get used to it”. This went on for a little while until the accused ejaculated into the condom.
The accused put on his bath robe and asked the complainant if he wanted to have a shower. The complainant said “No”, as he just wanted to go home. The accused told the complainant that it was late and that to avoid waking another priest he should leave by climbing out of the window. The complainant got dressed and left through the window, walking along the roof of the parish office attached to the back of the presbytery and down to the carport, before walking home.

Count 3 – Sexual assault without consent – s61D (1) Crimes Act 1900.

On 6 April 1987, the complainant and a female school friend received a school detention slip for throwing potato salad out of the bus window. The detention slip required their attendance at detention for two hours on the afternoon of 14 April.
Following this, the Deputy Principal, contacted the accused and it was determined that the complainant and the school girl, supervised by the accused, would serve further detention by gardening at the nun’s convent in Z.
On a Saturday between the 18th and 25th of April, the complainant drove the accused’s car, under the supervision of the accused, together with the school girl to the Convent in Z to undertake the gardening as part of their punishment. The complainant and the girl worked in the garden at the convent for up to two hours. The accused then drove the complainant and her to his mother’s house, where they did further gardening and had lunch.

The complainant drove the car back to X, under the supervision of the accused. The complainant and the accused dropped the girl home and once she had exited the car the accused said to the complainant “why don’t you come back to the presbytery to have a shower before you go home?”, and the complainant agreed.
Once at the accused’s residence, the accused handed the complainant a towel for the shower and went into the living room. The complainant undressed in the bedroom and went into the bathroom to have a shower. Whilst the complainant was showering the accused entered the shower. The complainant saw that the accused had an erect penis. The accused put his hands on the complainant’s shoulders and pushed the complainants head down towards the accused’s erect penis. The accused put his erect penis in the complainant’s mouth. The complainant fellated the accused’s penis with his mouth.
The accused then said to the complainant “let’s go and get onto the bed”. The accused left the shower and the complainant remained in the shower and washed himself again as he felt dirty because of what the accused had just done.

Count 4 – Sexual assault without consent – s61D (1) Crimes Act 1900.

A couple of minutes later the complainant left the shower and the accused was lying on his back naked on his bed. The accused said to the complainant “come over here” and motioned towards the bed. The complainant walked to the bed and the accused pulled him towards him and whilst kneeling on the bed tried to kiss the complainant. The complainant gagged and pulled back, as he did not want the accused to kiss him.
The accused placed his hands on the back of the head of the complainant and pushed his head down towards his erect penis and put his penis into the mouth of the complainant. The complainant then moved his head up and down on the accused’s penis.

Count 5 – Sexual assault without consent – s61D (1) Crimes Act 1900

The accused got up and went to the bathroom and returned to the bed. The accused put a condom on his erect penis and got in between the legs of the complainant, trying to penetrate the complainant’s anus with his penis. The accused could not penetrate the complainant’s anus, so placed a pillow under the complainant’s lower back at the top of his buttocks. The accused then penetrated the complainant’s anus with his penis, which caused the complainant to feel immediate pain.
The accused tried to kiss the complainant on the mouth while he continued to thrust in and out of the complainant’s anus, however the complainant turned his head away indicating that he did not want the accused to kiss him. The accused continued to thrust in and out of the complainant’s anus until he ejaculated into the condom.
The accused got up and put a dressing gown on and told the complainant to have a shower. The complainant finished showering and was worried about his hair being wet, so took the time to dry it. The accused told the complainant he would walk him downstairs to the door of the presbytery and the complainant became impatient when the accused was not getting dressed quickly, as he wanted to get out of there. The accused eventually walked the complainant down to the front door of the presbytery and the complainant walked home.
Later in 1987, towards the end of the school year, the accused took the complainant and the same school girl to a dinner at an expensive restaurant in Z. The accused then drove her and the complainant back to X. After dropping her back to her house, the accused invited the complainant back to the presbytery for a “night cap”. The complainant agreed because he felt as if the accused was treating him like an adult. The accused gave the complainant a whisky or something similar on that occasion.
In late November 1987, the accused left X and relocated to D.

Post – Offence Conduct

From around 5 March 1988, the accused sent the complainant hand written letters regarding various subjects, including the complainant’s 18th birthday and his HSC Examinations. In December 1988, the complainant travelled down to D to visit the accused at his new residence. Whilst the complainant was staying with the accused the accused penetrated the complainant’s anus with his penis whilst wearing a condom. On a subsequent night the accused asked the complainant to again have anal sex with him, to which the complainant refused. The complainant instead performed oral sex on the accused.
In January 1989, the complainant relocated to Sydney with his female friend. The accused continued to contact the complainant via his landline telephone and in writing at this time. Around 1992 the accused and the complainant met up with one another in Surry Hills, Sydney. During this meeting the accused and the complainant had anal sexual intercourse.

Arrest of the accused.

On Tuesday 1 May 2018, the accused was arrested outside of his home address. The accused declined to participate in an electronically recorded interview and was granted bail by police.

Tendency Evidence – Sexual attraction to school aged boys

The Evidence of LL (from his affidavit)

‘Around late 1984’, the accused commenced a consensual sexual relationship with LL. He grew up in X and was 19 at the time that the relationship commenced. He was born in August 1965. In 1987, LL moved to K to go to the seminary, however remained in contact with the accused by telephone. During his telephone conversations with LL, the accused would tell LL about his sexual interests. On three separate occasions, the accused told LL about school aged boys that he was “besotted” with. Around 1988, he discussed his sexual relationship with a boy in Year 12 at the local Catholic High School in X. The second was when the accused had moved to D, about a boy called KK, who the accused said he was very attracted to. The third was another boy from D who LL met on a few occasions at the presbytery. This last aspect of the conversations with the accused is not pressed.

The Evidence of KK (from his police statement)

Around late 1988, the accused commenced a consensual sexual relationship with KK. He was 17 years old at the time, attending high school in D. The accused was living in D. The relationship began with the accused providing KK with advice about life and engaging intellectual conversation. The relationship progressed to KK staying at the presbytery with the accused. The relationship became sexual shortly after, with the accused offering to massage KK with oil. This was done a couple of times, each time with less clothing involved at the suggestion of the accused. These circumstances progressed to consensual oral sex, mutual masturbation, cuddling and open mouthed kissing.

Other Evidence

In November 1992, S posted an advertisement in the classified section of a male homosexual magazine. The advertisement stated as follows: “EXPLICIT COLOUR PHOTOS, Hot, hung, handsome young guys to suit all tastes. $5 for catalogue and sample photos”.
In June 1994, following an investigation of S by NSW Police, two letters authored by the accused, were located at S’s residence. They are provided as part of the Crown bundle.
On 18 September 1996, the accused participated in an electronically interviewed. During the interview the accused made the following admissions:

The accused confirmed he had written the above letters in response to an advertisement for photographs in magazines;

He had done so out of curiosity;

His request for persons under 18 years meant 16, 17 and 18 years;

The term “boys” was used in a general sense;

The accused said he had no liking for child pornography. He said the ages he thought of were 16 – 17 years of age.

During the week of 23 March 2015, the accused participated in a comprehensive psychological evaluation with psychologist, at the request of the Bishop of the Y Diocese. The report produced by the doctor made the following findings:

by the time he (the accused) was 14 or 15 years of age he realised he was sexually attracted to males.

In relation to his use of pornography, the accused admitted to ordering homosexual photographs in the early 1990’s and also acknowledged that he attempted to source photographs of adolescent males. He admitted to being “curious” and attracted to adolescent males in the past.

During assessment he acknowledged a history of being attracted to adolescent males and of seeking to procure pornographic photographs of adolescent males in the early 1990’s. He also acknowledged that he engaged in a relationship with at least one partner who may have been under the age of 18 years.

This is the material as it is outlined in the Crown Case Statement, generally supported in the accompanying statements.

The witnesses KK and LL are gave evidence in court on 20 April 2020. The evidence is to be seen in the context of the respective statement (in the case of KK) and affidavit (in the case of LL). The latter witness gave evidence via AVL from K, the former gave evidence via AVL from W in Victoria. Dealing with the evidence of LL, he commenced a consensual sexual relationship with the accused in 1984/1985. He had no knowledge of the accused ever telling him of having a sexual relationship with the principal complainant but he was the best friend of the older brother of that complainant. He was contacted by police after that person contacted him to tell him of the fact that his brother had made allegations against the accused. He was unaware of any relationship of the accused with the brothers during the time that he lived in X, part of which he lived as a neighbour to CC’s family. He did not know whether or not the accused as Parish Priest or otherwise was a frequent visitor to the complainant’s parents’ place. He had regular contact with the accused at the presbytery at X, showering there, having sex there and the like. But had no contact with the complainant or his brother in that context. In late 1986 early 1987 he was involved in preparing for a “camp” that was held in January of that year but had no contact with the complainant or his brother in that context.
LL said he was approximately 19 years of age (but no younger) when he commenced having a sexual relationship with the accused. He said that he had left school in late 1984, started working as an apprentice butcher in the nearby town of Z and he was 19 years of age at this time. He conceded the possibility that he commenced the relationship in April 1985. The relationship with the accused apparently started after he had left school in circumstances developed at paragraphs 7 and 8 of that affidavit. He continued to have a sexual relationship with the accused at least until he had completed studies at a seminary in K where he remained for six years. That relationship included a trip to Tasmania in January 1989 when the accused was living in D. The accused never said to him that he had a sexual relationship with the complainant and he had no knowledge of the complainant seeing the accused in D in December 1988.
The critical part of his evidence turns upon paragraphs 12 to 14 of his affidavit. In that part of the affidavit he referred to telephone conversations with the accused whilst he was studying in the seminary where he remained until 1992. These telephone conversations would appear to of occurred between 1989 and 1992. He said in his affidavit that:

“On three occasions he told me about school-age boys that he was besotted with. The first was in around 1988 when he told me about a boy in year 12 at the Catholic secondary school in X. He was the School chaplain at the time. He would tell me that the boy was very attractive and a nice young man. I reminded him that the boy was school-age and therefore a child still”

In relation to this paragraph he resiled from any suggestion the accused had referred to the student as a “child”, or that he had used the term indicating that he would have understood by the fact that the student was in year 12 that the student was 17 or 18, or possibly, 19 years of age. The complainant on his account was in years 10 and 11. He also made it clear that the word “besotted’ was not the accused’s word but his own interpretation of what the accused was telling him. He did not know the age of the student but accepted that the student could have been 17, 18 or even 19. He said that he had reminded the accused that the student was still at school. He said the accused said the student was “attractive” and that he had “spent time with him” but did not particularise or identify any sexual conduct. In his affidavit he referred to the fact that the accused also spoke about a person he met in D, a boy called KK who was about 17 or 18 years of age. He said that the accused told him he thought that he was in school at the time, that he was “very attractive” and was “besotted” with him. Again besotted was not the expression used by the accused. Neither did he say he performed any sexual activity with him.
This evidence is available to support KK in his account as to the timing of his relationship with the accused but does not strengthen the claim for tendency reasoning beyond what is contained within KK’s account. In paragraph 14 of the affidavit is a reference to another person but that material is not pressed.
KK said in evidence, that he knew neither the principal complainant nor his brother. His evidence is that he first met the accused when he was 17 years of age, meeting him through a sporting contact not through his role as a priest in D. KK was not Catholic, nor attended the local Catholic school, but went to a State school. He initially said that he was 17 1/2, (turning 18 in July 1989) when he first started having a sexual relationship with the accused by staying at the presbytery from the start of 1989. He remembered the accused going overseas. He believed that was after his 18^th birthday. He conceded the possibility that the sexual relationship did not start until after the accused had come back from overseas. When it was put to him that the sexual relationship did not start until November 1989 he said that he believed it started earlier than that. But as to whether it started after the overseas trip and after surgery, he said he “wasn’t fixed on dates”….”it was possible”. However he did remember the accused going overseas when he was studying for his year 12 exams, because when the accused was overseas he stayed at the presbytery and studied there, apparently with the permission of the accused and others. He continued to have a consensual sexual relationship with the accused between 1989 and 1999 and agreed that all their sexual relationship was consensual. He said that that no time was “anal intercourse” achieved. In 1991 they may have talked about it but he remembered that in 1999 it was attempted unsuccessfully. However, there was other sexual activity between them over that period of time. He said in his evidence that the accused did not endeavour to convert him to Catholicism and their discussions about spirituality were not concerned with Catholic dogma. When taken to part of his statement at paragraph 20 concerning sexual activity where he said “I can only assume I was 17” he was asked: “is it possible you were 18?” He replied “I don’t believe so”.
He was asked about his understanding of celibacy by reference to paragraph 24 of his statement, and he said that he understood celibacy to mean, in the context of a requirement of a priest to be celibate that: “You give your life to God and Jesus and do not give your body to anybody else”.

Tendency Notice

By reference to s 97(1) Evidence Act 1995 (“the Act”) the person whose “tendency” is the subject of the evidence sought to be adduced (the accused).

Cross Admissibility.

The indictment contains five counts relating to one complainant. The Crown seeks to rely upon the evidence of each count as tendency evidence in respect of the other counts on the indictment. In summary, it is contended that the evidence in relation to each count is cross admissible as tendency evidence in respect of each other count on the indictment.
The tendency sought to be proved is:

The tendency of the accused to have a particular state of mind, namely to be sexually attracted to the complainant;

The tendency of the accused to act in a particular way, namely to use his position within the school and church to get the complainant alone with him;

The tendency of the accused to act in a particular way, namely to act upon his sexual attraction to the complainant by engaging in sexual acts with and/or towards the complainant, while alone with him in the following ways, including:

Taking his own clothes off,

Taking, or telling the complainant to take his clothes off,

Massaging or touching the complainant’s shoulders,

Putting his erect penis in the complainant’s mouth,

Placing a condom on his erect penis,

Inserting his erect penis into the complainant’s anus,

Ejaculating into the condom as a result of the anal intercourse; and

Engaging in sexual intercourse on his bed in the residence.

The substance of the “tendency” evidence which the Prosecution intends to adduce is contained within the following documents which previously have been served upon you.

Statement of the complainant 23 February 2017 Paras 13, 14, 15, 21 and 22.

Statement of the complainant 8 November 2019 Para 9.

Uncharged Acts:

The Crown also seeks to rely on evidence of “uncharged acts” as tendency evidence in respect of each count on the indictment.

The tendency sought to be proved it:

The tendency of the accused to have a particular state of mind, namely to be sexually attracted to the complainant; and
The tendency of the accused to act in a particular way, namely to use his position within the school and church to get the complainant alone with him,
The tendency of the accused to act in a particular way, namely to act upon his sexual attraction to the complainant by:

Being naked in front of the complainant,

Exposing his body and genitals to the complainant,

Handling his own penis in front of the complainant,

Whilst alone in his residence.

The substance of the “tendency” evidence which the Prosecution intends to adduce is contained within the following documents which previously have been served upon you.

Statement of the complainant 23 February 2017 Paras 9, 10, 11 and 12

Other Evidence

The Crown also seeks to rely on other evidence as tendency evidence in respect of each count on the indictment.

The tendency sought to be proved is:

The tendency of the accused to have a particular state of mind, namely to be sexually attracted to school boy aged males of European/Australian background, during the relevant time period; and
The tendency of the accused to act on the said state of mind, by;

responding to an advertisement in a homosexual themed magazine seeking photographs of young teenagers of European/Australian background,

responding to said advertisement in a magazine, a homosexual themed magazine seeking one copy of a magazine

sending money and receiving as a result of sending that money photographs and photocopies

writing to the supplier of said photographs and requesting younger material

writing to the supplier of said photographs and requesting secure packaging

conveying over the phone in around 1988 to LL that he had a sexual attraction to three school aged boys;

engaging in sexual activity with KK when he was aged 17 years old; and

engaging in sexual activity with the complainant when he was aged 16 years old.

The similarities in the evidence of KK and the complainant are as follows:

Age of the boys

Same period of time

Location of the sexual contact being alone in the presbytery

Engaging the boys in intellectual discussion in order to foster relationship with the boys

The accused’s position and authority over the boys as local priest

The trust, based on the accused’s position, placed on the accused by the boy and his family allowing access to the boy

Escalating nature of the grooming and sexual contact in general

The accused offering a massage as an excuse for clothing to be removed and as the genesis of the sexual contact

Use of oil during the massage

Positioning the boy flat on his stomach on the bed and the accused behind him performing the massage

The boy wearing only underwear and then ending up naked during the massage

The accused getting an erection during the massage

The massage escalating to sexual contact, including oral sex

A sexual relationship then developing with time.

The substance of the “tendency” evidence which the Prosecution intends to adduce is contained within the following documents which previously have been served upon you.

Handwritten letter of the accused Undated (Whole document)
Typed letter of the accused 26 March 1992 (Whole document)
Recorded Interview of the accused dated 8 September 1996
Classified Magazine November 1992 Page 89
Psychological Report of the accused by the psychologist 31 March 2015 Page 3, 4 and 7 6.
Statement of KK 3 September 2019 Paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20
Affidavit of LL 20 August 2019 Paragraphs 12, 13 and 14
Statement of the complainant 23 February 2017 Paragraphs 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 20, 21, 22 and 23
Statement of the complainant 8 November 2018 Paragraphs 7 and 9”

Submissions of the parties

The accused’s submissions

The accused through his counsel, referred to ss 97,101 and 137 Evidence Act 1995. Counsel noted the essence of the High Court Judgment in Hughes at [40]. It was noted that the prosecution had identified three areas of Tendency:

Cross-Admissibility

Uncharged Acts

Other Evidence

Counsel for the accused stated: “The defence case, in a nutshell, does not dispute that there existed a consensual, casual sexual relationship between the complaint and AA after the complainant turned 18 years of age for some years. The Defence will not be running a case that the accused did not have a sexual interest in males of a legal age”.
Noting the elements of the offence it was also noted in the submissions that the age of the complainant is not an element of the offences charged and, therefore, an asserted tendency to be attracted to “school aged boys” is not relevant to the elements of the offences charged.
It was submitted that “none” of the “Other Tendency” evidence has any significant probative value (s 97b), and if any is found to have significant probative value, that probative value does not substantially outweigh any prejudicial effect it may have on the defendant (s 101).
It is particularly noted the use of the term “school aged boys”, which covers an age range of 4.5 years until about 19 years. The use of the term is “inflammatory, misleading and highly prejudicial”. The age of the complainant is not an element of the offences charged and any asserted tendency to be attracted to school aged boys is not relevant to the elements of the offences charged.
More generally, it is submitted that the whole of the ‘Tendency Notice’ conflates homosexuality with paedophilia, and inappropriately connects the accused with paedophile priests within the Catholic Church.
It is submitted that the offences with which the accused is charged are charges which relate to sexual assault without consent, knowing that he was not consenting. They do not allege paedophilic activity, as the complainant asserts that he was over sixteen years old when the allegations occurred. The Tendency Notice improperly connects the accused with underage male sexual activity, and to the extent that any of the evidence suggests that, it should not be admitted.
Objection was also taken to the use of the word, or of any concept of, ‘grooming’. It is submitted that ‘grooming’ is in itself an offence, relating to paedophilia, and a concept which is strongly connected to criminal behaviour. Between people of a legal age, this term is generally called ‘courting’ and is a natural and normal process between two people.
It is submitted that the issue of fact in this trial is whether the Crown can establish beyond reasonable doubt that the accused committed the acts constituting sexual intercourse without the consent of the complainant, at the time knowing that the complainant was not consenting. The defence case is that the accused did not commit any such acts at the time alleged, nor did he have any “tendency” to act without consent, knowing that he was not consenting. It was submitted that none of the evidence sought to be adduced by the Crown goes to heart of the charge, i.e. lack of consent and knowledge thereof.
Reference was made to the High Court judgment of IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, where the Court said:

“Evidence from a complainant adduced to show an accused’s sexual interest can generally have limited, if any, capacity to rationally effect the probability of the complainant’s account of the charges and offences is true. It is difficult to see that one might reason rationally to conclude X’s account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion, the accused exhibited sexual interest in him or her.” (at [63])

It is submitted that the introduction of significant amounts of evidence relating to the age of the complainant, the sexual orientation or interest of the accused and evidence regarding the previous consensual sexual partners of the accused, create a preponderance of prejudicial evidence which overwhelms the substantive matter, and any probative value that may exist.

Cross-admissibility

It is not conceded that the counts are cross-admissible as sought to be relied upon by the Crown. In the current case, the evidence sought to be used by the prosecution in establishing tendency through the cross-admissibility of evidence from counts 1-5 includes the accused allegedly: taking off his clothes; asking the complainant to take off his clothes; massaging or touching the complainant’s shoulders, putting his erect penis into the complainant’s mouth and anus, using a condom, using a bed, and ejaculating.
If the Court were to find that the sexual interest existed at the relevant point in time, and the Court were also to find that the actions alleged occurred, the defence would argue that these actions, all of which are contested by the defence at the point in time charged, would in any case be standard features of a consensual sexual encounter and would not assist the court in establishing a tendency to have sexual intercourse without consent, knowing that he was not consenting.
In the context of the whole of the Crown case, where the complainant remained in a consensual sexual relationship for many years, until 1993, it is submitted that it is meaningless for the Crown to rely on such a tendency. Proof of a sexual interest which exists prior to a sexual encounter cannot be used to prove knowledge of lack knowledge of consent.
As to the evidence sought to be used by the prosecution in establishing tendency through the use of evidence from uncharged acts it is submitted that ignoring the logical flaw in the evidence put forward by the prosecution (one cannot expose one’s body to another whilst being alone), the accused would argue that each of these actions would not assist the court in establishing whether he had sexual intercourse without consent, knowing that he was not consenting, and thus has no probative value.

Other evidence

It is submitted that, in circumstances where the use of this evidence goes only to a legal and common sexual interest and/or the willingness to act on that legal and common sexual interest, there is little or no probative value in this evidence. It is further submitted that this evidence does not reach the threshold of ‘relevance’ (s 55EA).
It is submitted that IMM v The Queen is relevant, in that the Court found that: “Evidence from a complainant adduced to show an accused’s sexual interest can generally have limited, if any, capacity to rationally effect the probability of the complainant’s account of the charges and offences is true”
The tendency evidence sought to be proved is: ‘The tendency of the accused to have a particular state of mind, namely to be sexually attracted to schoolboy age males of European/Australian background, during the relevant time period’.
It is noted that the defence objects to the use of the term ‘school age males’ which directly refers to males of about 4.5 to 19 years old. This directly refers to children and directly implies that AA had paedophilic tendencies.
Reference is made to DPP v RDT [2018] NSW CCA 293, per Basten JA at [34] (with whom Johnson J and RA Hulme J agreed), distinguished the facts in “McPhillamy” from those of RDT as follows, finding significant probative value due to the unusualness of the tendency alleged:

“.... First, there is a qualitative difference between a man having a sexual interest in teenage boys, examples of which are replete throughout recorded history, and a mature male having an interest in female toddlers in nappies…”

It is submitted that the tendency alleged by the Crown is of such commonality that it lacks significant probative value, particularly in circumstances where the offences relate to sexual intercourse without consent, knowing that he was not consenting. This is not a situation where the tendency itself creates the offence.
It is submitted that the tendency of the accused to act on the said state of mind, as alleged by the Crown, fell broadly into five categories. The photographs responding to an advertisement in an insert in a homosexual themed magazine seeking photographs of young teenagers of European/ Australian background; sending money and receiving as a result of sending that money photographs and photocopies; writing to the supplier of said photographs and requesting younger material; the requesting of younger photographs than which he had already been provided, writing to the supplier of said photographs and requesting secure packaging.
It is submitted the “advertisement” in the Crown bundle in a magazine is dated November 1992 and thus post-dates the letters sent by the accused, and therefore it is “impossible” for him to respond to this advertisement as alleged. These pages are sourced from the Mitchell Library and have no relevance to this case. It is unclear how or why they became part of the brief of evidence it is submitted. (The Crown agreed that the particular pages were produced to represent the ‘type’ of material to which the correspondence of the accused relates).
It is submitted that the introduction of the purchase of nude photographs, which is legal material, and which is not a criminal act, lacks probative value. The obtaining of 8 nude photographs/images is such an outstandingly common thing to occur, it cannot be seen that, as a result of purchasing such items, the accused is more likely to have committed the offence of sexual intercourse without consent, knowing that he was not consenting.
The “out-of-context introduction” of the letters written by the accused have been read as containing references to child pornography. Whilst it is possible that the Crown does not intend to adduce the information for this purpose, the letters, in context of a police investigation from information led from an ERISP, would create a set of circumstances that are highly prejudicial, and the probative value does not substantially outweigh the prejudicial effect.
Further, the relevant activity occurs at least 5 – 6 years after the relevant time period, and thus provides no probative value and ‘do not make more likely, to a significant extent, the facts that make up the elements of the offence charged, in the relevant time period.
As to his conversations with LL, it is submitted that the Crown seeks to introduce evidence of gossip from the accused to his lover at the time about the men of a legal age which he thought attractive has little or no probative value, and can only be prejudicial. This is behaviour which the jury might feel is unseemly in a priest, and thus increases the prejudicial nature of this evidence is this case. It is submitted that jury members may have the misunderstanding held by KK, that priests ‘take a vow of celibacy’, and should not be behaving in that manner.
It is submitted that speaking of an attraction to a particular type of person does not create significant probative value that that attraction will be acted upon in a sexual way, in a non-consensual manner. Whilst it may indicate a legal sexual interest for that particular type of person, the probative value is extremely low.
As to the sexual activity with KK, it is not conceded that sexual activity with KK occurred before he was 18 years old. However, a long-term, consensual relationship with KK is not challenged. It is submitted that the existence of a consensual, casual long-term relationship with another adult male for about ten years, provides little probative value as to whether the accused committed the offence of sexual intercourse without consent, knowing that he was not consenting, as charged.
The Crown seeks to rely on similarities between the complainant and KK, however, the circumstances of the young men are very different, and the manner in which these are drafted are based on an assumption that relationship was wrong or impermissible in some way.
It is submitted that the introduction of this material to the jury, would create significant prejudice which is not overcome by the probative value of the evidence. Use of the word ‘grooming’, and ‘boy’, implications of ‘trust being used to gain access’ are all concepts which do not properly represent the nature of the relationship described by KK, and imply wrongdoing on behalf of the accused. It is submitted that the claimed similarities do not exist and are unfairly prejudicial.
Whilst the timing of the commencement of both these sexual events is in dispute, the accused argues that the actions that the prosecution seeks to rely upon as tendency evidence would not assist the court in establishing a tendency to have sexual intercourse without consent, knowing that he was not consenting. In any case, such actions would be a standard feature of any person engaged in the vocation of the accused and this evidence does not have probative value to the court in determining whether the accused had sexual intercourse with the complainant without consent, knowing that he was not consenting. It is submitted that there is no evidence to be adduced by the Crown that the accused’s role as a priest had anything to do with the contact.
In this regard, in respect to the tendency evidence asserted relating to “the accused's position and authority over the boys as local Priest”, and “the trust, based on the accused's position as a Priest, placed on the accused by the boy and his family allowing access to the boy”, it is noted that the accused was not the Parish priest of KK, did not instruct, or introduce KK to Catholicism. KK did not attend the Catholic School. KK and the accused met through basketball.
The defence would also assert that there is nothing particularly unique about a massage leading to a consensual sexual encounter, and thus this aspect has little or no probative value
As to the relevant extracts of the report of the psychologist, and his admission of a consensual sexual relationship with a male in X when the male was “about 18 and continued until the man was about 24 years of age”, the admission does not identify the person. It certainly does not amount to an admission of criminal conduct as alleged by the complainant.
It is submitted, that evidence of a legal, common sexual interest and consensual sexual relationship cannot be used to prove the offences for which the accused stands charged. This proposed evidence creates even further material which contributes to the weight of the unfair prejudice.
It is submitted that, the circumstances of the obtaining of the material, in itself, contains significant prejudice to the accused. The fact of a compulsory interview with a psychologist, in circumstances such as it occurred, is highly prejudicial. Whilst the prosecution may be able to hide this in the manner in which it is adduced, it is clear from the material that the accused is unhappy with some of the conclusions drawn by the writer.
In this prosecution case, it is submitted that the prosecution are seeking to rely upon what would be described as an unnecessary amount of evidentiary material relating to the sexual orientation of the accused. Invariably this arises in the context of tendency evidence. There is the risk of considerable prejudice towards such an accused, who is homosexual and a priest.
The prosecution case is submitted to be “a simple case” of sexual assault without consent, knowing that he was not consenting, between two people. The defence will not be running a case that the accused is not homosexual, nor that he does not have a sexual interest in males of a legal age. It is still submitted that the introduction of an overwhelming “wealth” of information regarding other, consensual same sex relationships creates significant prejudice.
In this case, there will be evidence of a consensual sexual relationship between the accused and the complainant after the complainant attained the age of 18 years of age and for some years thereafter. In such circumstances, jurors, notwithstanding any direction given by a trial Judge, may nevertheless be influenced in a prejudicial way against the proper interests of the accused.
In all these circumstances, it is submitted that:

The evidence of each count should not be cross-admissible;

The evidence of uncharged acts is admissible as context evidence, but not for tendency proposed; and

None of the “other” tendency evidence should be admitted against the accused.

In addition to the written submissions counsel for the accused in respect of “the other evidence”, that is the evidence relied upon for tendency purposes independent of the complainant, counsel asked the rhetorical question; “what work does the other evidence do?”.
It was submitted that in essence the other evidence does not have significant probative value, particularly if the court concluded that there was a sexual attraction by the accused towards the complainant. It was submitted in the circumstances the jury notwithstanding any directions given to it would accord the “other evidence” undue weight and thus the evidence would be excluded either as not having significant probative value or pursuant to s. 101 of the Act
Further it was submitted orally that the prosecution of the accused was a “simple” sexual assault case that would be made considerably lengthier and more complicated by the admission of the “other evidence”, which would significantly distract the jury .There was a risk of this evidence being given too much weight, having regard to its character, than was appropriate, thus causing unfair prejudice. There would be a risk that a jury would lead to the conclusion that the accused was a paedophile in circumstances where the issue was whether he was in effect a “rapist”.

Crown submissions

The Crown did not provide written submissions but made short oral submissions. It made it very clear that it was not in any way shape or form suggesting that the accused was a “paedophile” and there would be no risk of the jury on the Crown case confusing the accused’s “homosexuality” with the allegation of him being a rapist.
The reference to the accused having an interest in “school age boys” was to be seen in the context of the character of the association alleged by the complainant with the accused.

The simple aspect of the matter from the Crown’s perspective was that the probative value of the tendency evidence (as I understand it in all respects) deals with the contradicting the possibility that the accused at the relevant time of the alleged assaults had an innocent association with the complainant. The tendency evidence went from the complainant and KK to the issue of the accused having an attraction for a young man such as the complainant and acting upon that attraction. The probative value of the “other evidence “is its capacity to support the complainant’s account in that the alleged behaviour of the accused was so unusual that it must have happened as alleged by the complainant, or that the jury might think that in a single instance that “it was so unusual that it would be unlikely to have taken place”.
The Crown indicated that the six discrete issues identified by the bench accorded with appropriate categorisation of the various types of tendency evidence identified in the tendency notice.
As to the cross admissibility of the evidence the Crown said it relied upon the reasoning of the High Court in Bauer v The Queen [2018] HCA 40; (2018) 92 ALJR 846. Here the respective allegations are not so remote in time as to undermine the probative value of the evidence. The evidence of charged and uncharged acts reveals a specific attraction for that particular complainant at the relevant time of the alleged offences.
In the context of the material contained within the Crown bundle, after some discussion at the bar table with counsel for the accused, the Crown clarified that advertisements that were part of the Crown bundle contained within a magazine referred to in correspondence from the accused were not relied upon by the Crown as the actual magazine edition to which the accused was referring but as an example of the relevant magazine content at about the time of the correspondence of the accused.

The principles to be applied

S 97 of the Evidence Act relevantly provides;

“The tendency rule”

Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:

the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value...”

Reasonable notice is not an issue here.

S 101 of the Evidence Act relevantly states:

This section only applies in a criminal proceeding and so applies in addition to ss 97 and 98.

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

In the context of the Dictionary (of the Evidence Act) definition of “probative value” of the majority of the High Court in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 stated (at [16]):

“Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent… the starting point requires identifying the tendency and the fact or facts in issue which it is adduced to prove”

The majority said (at [20])

“Tendency evidence depends for its probative value on how persuasively it can be reasoned that the person will behave in a way that is consistent with the tendency.”

The majority further said at [40]–[42]

“In the trial of child sexual offences, it is common for the complainant's account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford: "the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged". The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.

The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.

Unlike the common law which preceded s 97(1)(b), the statutory words do not permit a restrictive approach to whether probative value is significant. However, the open-textured nature of an enquiry into whether "the court thinks" that the probative value of the evidence is "significant" means that it is inevitable that reasonable minds might reach different conclusions” (emphasis added)

At [64] the majority further stated:

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

Issues relevant to these matters will include the nature of the proceedings and whether matters are required to determine “beyond reasonable doubt” (Hughes at [16]). The length of time between relevant events may be of significance in assessing the probative value of particular evidence relied upon for tendency purposes, e.g. R v Dent [2016] NSWSC 99 – (albeit that was a gap of 37 years), R v Watkins [2005] NSWCCA 164; (2005) 153 A Crim R 434. A tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in relevant acts to the claimed tendency (Hughes at [37]).
Competing inferences arising from the evidence relevant to establish a particular tendency are relevant to the assessment of the “probative value” of evidence of a particular tendency (DSJ v R (2012) 84 NSWLR 758; [2012] NSWCCA, JG v R [2014] NSWCCA 9). Such other evidence may “reinforce” evidence otherwise lacking “significant probative value” (Hughes at [62]) or may weaken the inference of “tendency” sought to be established Jones v R [2014] NSWCCA 280; (2014) 246 A Crim R 425 at [88]-[90]. This, in terms of s 97, requires consideration of “other evidence adduced or to be adduced by the party seeking to adduce the evidence” (s 97(1)(b)).
In IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, the High Court held that in assessing the probative value of evidence the Court must proceed on the assumption that the evidence is accepted, that is credible and reliable (at [48]).

The majority of the Court further observed (at [46]) stated that:

“The significance of probative value of the tendency evidence must depend on the nature of the facts in issue to which the evidence is admissible and the significance or importance which the evidence may have in establishing those facts. So understood, the evidence must be influential in the context of the fact-finding.”

In IMM the court observed (at [62]–[63])

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

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

It is this last paragraph from IMM that the accused relies upon to oppose the admissibility of the tendency evidence from “Cross Admissibility” or “Uncharged Acts”.

The decision of the majority of the High Court in IMM was considered in The Queen v Bauer [2018] HCA 40; (2018) 92 ALJR 846, an appeal from a decision of the Supreme Court of Victoria. In Bauer the Court resolved to “speak with one voice” on the subject of tendency evidence in single complainant sexual offence cases [47].
The Court pointed out that the judicial basis of “cross admissibility” of evidence of charged acts and the admissibility of evidence of uncharged acts in such cases rests upon the “very high probative value” of that kind of evidence which results from ordinary human experience that, where a person is sexually attracted to another and is acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person. The Court also pointed out that the fact of itself that evidence of ‘uncharged acts’ is given by complainant does not mean that it lacks significant probative value. Although there is a lack of independence in the sense that the evidence of uncharged acts depends on the complainant’s account, once the evidence is admitted, and assuming it is accepted, it adds a further element to the process of reasoning to guilt and so, therefore, may be seen as significantly probative of the accused guilt of the charged offences (at [51]).
The Court then went on at [52]–[59] to review various authorities of the High Court and “intermediate courts” some of which concerned “multiple complainants” some of which concerned a single complainant as was the case in IMM. In respect of that decision the Court noted that the observations of the majority in that case was that the “uncharged act” which was thought not to have significant probative value was relevantly “remote in time” and of a “significantly different order of gravity from the charged offending” (at [55]). The Court noted, at [60], that in a single complainant sexual offences case, where a question arises as to whether evidence that the accused has committed one sexual offence against the complainant is significantly probative of the accused having committed another sexual offence against that complainant:

“… there is ordinarily no need of a particular feature of the offending to render evidence of one offence significantly probative of the other.… Evidence that an accused has committed one sexual offence against a complainant taken in conjunction with evidence of another sexual offence against the complainant suggest that the accused has a sexual interest in or a sexual attraction to the complainant and a tendency to act upon it as occasion presents. And as has been seen, that is so because, where one person is sexually attracted to another and has sought to fulfil that attraction by committing a sexual assault with him or her it is more likely that the person will continue to seek to fulfil the attraction by committing further sexual acts with the other person as the occasion presents”.

The Court went on to observe that the question of whether tendency evidence is of significant probative value is one to which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ (at [61]). In this context, having to consider the issues at bar itself rather than whether it was open to the trial judge to make the relevant conclusion, it noted that the charged and uncharged acts involve one complainant, none of the acts was far separated in point of time or far different in nature and gravity from the others. It therefore concluded:

“There was no need for any “special feature” in order to render the evidence of one charge cross admissible in proof of the other charges or to render the evidence of uncharged acts admissible in proof of the charged acts… (In this case) the “very high probative value” and thus admissibility of the evidence of each charged in uncharged act rested on the logic that, where a person is sexually attracted to another and has acted upon that attraction by engage in sexual acts with him or her, the person is more likely to seek to continue to give effect to that attraction by engaging in further sexual acts with the other person as the opportunity presents”.

Thus, the court held that the trial judge was correct to hold the relevant evidence admissible for tendency purposes [62].

Another authority worth citing, slightly pre-dating Bauer by about a month is McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045. There the majority of the High Court upheld the dissenting judgment of Meagher JA ([2017] NSWCCA 130 at [115]–[130]), as did Edelman J in a separate judgment. The High Court majority concluded, in the context of evidence of alleged tendency arising from a witness, or witnesses, other than the complainant (here relevant to the ‘uncharged acts’), that it would;

“usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together”.

The suggested link in that case was the alleged tendency of the accused to act upon his sexual interest in young teenage boys that were under his supervision and were vulnerable approximately 10 years before the events giving rise to the charges in the indictment [31]. The Court held that the respective accounts of the two other witnesses and the alleged victim as to prior events establish no more than that a decade before the subject events the appellant had sexually offended against each of them. Proof of that offending was not capable of affecting the assessment of the likelihood that the appellant committed the offences the subject of charged to a significant extent.

“It rose no higher in effect than to insinuate that, because the appellant had sexually offended against (the other witnesses) 10 years before, in different circumstances and without any evidence other than the complainant’s evidence at trial that he had offended again, he was the kind of person who was more likely to have committed the offences the day alleged”.

Thus the evidence “did not meet the threshold requirement” of ‘significant probative value’ pursuant to s 97(1) (b) [32].
As to the operation of s 101 of the Act, in the context of its terms the Court of Criminal Appeal in Hughes ([2015] NSWCCA 330 at [189]–[193]) held (not granted special leave for the High Court Appeal):

“Section 101(2) provides that tendency evidence cannot be used against a defendant in a criminal trial, unless its probative value substantially outweighs its prejudicial effect on the defendant. The section involves an evaluative judgment by the trial judge, not the exercise of a discretion: see R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [94]-[95], although it is accepted that the principles in House v The King [1936] HCA 40; 55 CLR 499 apply to the appellate review of a determination made under s 101(2). see Ford at [110]; DAO at [170]; Fletcher at [48]. As Simpson J (Kirby and Schmidt JJ agreeing) stated in DAO at [170]:

“What is involved under s 101 is quintessentially a judgment – a judgment as to the probative value of the evidence relative to any potential prejudicial effect. That, no doubt, is why it is established that a so called ‘decision’ (read judgment) under s 101 is reviewable only on House v The King principles.”

The determination to be made under s 101(2) requires the trial judge to engage in a balancing exercise. As explained by this Court in Ceissman v R [2015] NSWCCA 74at [36], in relation to coincidence evidence, although the same principles apply in respect of tendency evidence:

“The question [under s 101(2)] requires an evaluation of the probative value of the evidence balanced against an evaluation of its potential prejudicial effect. Both evaluations are to be undertaken by the trial judge on the basis of the information available at the time its admission is determined. The first evaluation (of probative value) is to be made on the assumption that the evidence said to constitute coincidence evidence is accepted by the tribunal of fact: R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228.”

As is the case with s 97, the “no rational explanation” test as held in Pfenning v The Queen (1995) 182 CLR 461; [1995] HCA 7, no longer reflects the appropriate consideration of the matters to be balanced under s 101(2): see Ellis at[95]-[96]. As Campbell JA stated in Ford, at [64]:

“The proper carrying out of the balancing task requires the judge to identify the type or types of prejudicial effect it may give rise to, and why it is that the judge has reached the view that the probative value of the evidence substantially outweighs (or does not substantially outweigh, as the case may be) any such prejudicial effect: R v Harker [2004] NSWCCA 427 at [47], [58]; R v RN [2005] NSWCCA 413.”

In Sokolowskyj [2014] NSWCCA 55, 239; (2014) 239 A Crim R 528the Court (Hoeben CJ at CL Adams and Hall JJ agreeing) held, at [47], that “[t]he concept of ‘prejudicial effect’ is understood in substantially the same way as ‘unfair prejudice’”,as the latter term is used in s 137, namely, that there is a risk that the evidence will be misused by the jury in an unfair manner: see also Gardiner at [57]; Ford at [55]. The question for determination under s 101(2) is whether probative effect outweighs that prejudicial effect. The section calls for a determination of the “prejudicial effect” the evidence “may have on the defendant” (emphasis added). In DAO (2011) 81 NSWLR 568; [2011] NSWCCA 63, Simpson J considered, at [171], that such terminology meant that:

“… it is legitimate and appropriate for the judge to take into account the ameliorating effect of any directions that may be available to reduce the prejudicial effect.” See also R v Ngatikaura [2006] NSWCCA 161; 161 A Crim R 329 at [32].

This observation in DAO is to the same effect as observations made in Sokolowskyj. It is a function of the trial judge in a jury trial to give such directions in order to ensure a fair trial.”

In Hughes from the High Court judgment, in obiter remarks, the majority stated (at [17]):

“In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. 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 to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.”

The Court may mitigate or remove the prejudicial effect of tendency evidence by direction (Mol v R [2017] NSWCCA 76 at [36]). The character of relevant prejudice should be specifically identified (Mol op. cit.). This risk in s 101(2) of the Act is concerned with the risk “that the evidence will be misused in some unfair way (e.g.) by provoking an irrational, emotional or illogical response by giving the evidence more weight than it truly deserves or by distracting the jury (R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 at [72]).

Consideration of the issues

I have had regard to all the evidence produced and submissions on the parties. In the context of the legal principles to be applied set out above I accept the submission that in respect of the tendency to have a state of mind, or act in a particular way, one has to have regard, as the section requires, to other evidence not just that of the particular complainant that alleges the existence of claimed tendency (JG v the Queen [2014] NSWCCA 138, DSJ v the Queen (2012) 84 NSWLR 758; [2012] NSWCCA 9). The authorities establish that where there are competing inferences to be drawn from the available evidence as to the existence of a particular tendency that will make the existence of that inference less significant.
By reference to the respective categories of evidence upon which the Crown relies and the particular tendencies identified I conclude that the evidence of the complainant in respect of each of the alleged offences the subject of counts in the indictment is available as tendency evidence in the ‘cross admissibility’ way contended by the Crown to establish the tendencies set out below that have ‘significant probative value relevant to the issues at trial:

a tendency to have a particular state of mind, namely to be sexually attracted to the complainant,

the tendency to act in a particular way, to act on his sexual attraction to the complainant, by engaging in sexual acts with and/ or towards the complainant.

It is noted that in this matter each of the alleged offences involved the use of “force” over some resistance to complete the relevant sexual intercourse alleged. None of the uncharged acts alleged by the complainant to have occurred at D have these features expressly stated. In fact, the issue of lack of consent could not be said to reasonably arise on the material produced (eg paras 28-29, statement of CC -23/02/2017).
The evidence available for ‘cross admissibility’ purposes has significant probative value in the manner identified in Bauer, in evidencing a sexual attraction to the complainant and the accused acting upon that attraction in the manner alleged by the complainant. The reasoning of the High Court in Bauer at [62] has direct applicability to this matter. As with the reasoning of the High Court in Bauer I likewise conclude that the evidence should not be excluded pursuant to s 101 of the Act. There is little risk of unfair prejudice because such prejudice that arises can be dealt with by proper direction in accordance with what is required as set out by the court in Bauer. The probative value of the evidence substantially outweighs any risk of prejudicial effect. In reality the issue of the accused being a Priest provides the context or the factual matrix of the case. The Priest’s position in the community, on the Crown case, provided the opportunity for the accused to commit the alleged offences. Wider issues of sexual assault by members of the clergy upon parishioners and their families are matters that can be dealt with by appropriate and simple direction as they are regularly done in this jurisdiction and in others across the Commonwealth of Australia. The primary argument put by the accused on the “cross admissibility” issue is based upon obiter observations in IMM that were clarified and distinguished in Bauer.
The evidence of other interactions between the complainant and the accused is in my view not available for tendency purposes. It is in reality, pure context evidence, or relationship evidence to explain the context in which the specific offences pleaded in the indictment occurred and how the relationship developed. Although in the context evidence there are claimed to be common tendencies, or the supposedly detailed ‘particulars’ of tendencies, with the evidence available for “cross admissibility” purposes arising out of the counts in the indictment, the context evidence does not speak of similar offending . When analysed, the proper basis for the supposedly uncharged conduct to be before the jury is to provide evidence that explains the context of the alleged offending, bearing in mind of course that the specific offences charged are sexual intercourse without consent knowing that the complainant was not consenting. Not offences of a grooming character nor conduct that would amount to a criminal offence if there was consent. The events in D alleged as “uncharged conduct” particularly lack the similarities of circumstances that support a Crown case of “sexual intercourse without consent”. Many of the ‘particulars’ provided in the Tendency Notice to support the ‘cross admissibility’ material are absent in the ‘uncharged act material, save for particulars of conduct consistent with ‘everyday’ consensual activity. The element of pastoral influence common in the counts in the indictment is in reality absent in relation to the uncharged conduct, or lies sub silento. The issues of lack of consent or the accused’s knowledge that the complainant was not consenting are not as clear as in the counts in the indictment where physical force is alleged. No charges have been preferred in respect of the sexual conduct of the accused with CC after the accused left X. The statement of CC about events at D when he was 18, do not allege lack of consent. The evidence of sexual activity at D revealed in paragraphs 28 and 29 of the statement of 23/02/2017 does not reveal conduct that could reasonably give rise to criminal charges.
With regard to the evidence of KK and LL there are a number of features, or lack of features, of their evidence which deprives that evidence of significant probative value in proof of guilt of the particular charges brought against the accused. Firstly, there is absolutely no suggestion of sexual activity done without the consent of either person, let alone an absence of consent within the knowledge of the accused. It is to be borne in mind the fact that the accused is and was a, homosexual who was attracted to males, including younger males who might be described as “adolescent” but which interest was neither illegal nor criminal. The other telling aspect of the available evidence from KK and LL is that although there are some general details of sexual activity there is not sufficient detail to reflect either relevant similarity in conduct by the accused with that alleged by the complainant or what was described for example in McPhillamy as some “feature of sexual misconduct and the alleged offending which serves to link the two together” (at [31] – see also Hughes (at [64]) and Bauer (at [58]). That does not exist there.
What is described by the two witnesses when detail of sexual activity is provided is detail of consensual homosexual activity. In trying to particularise the character of the sexual conduct relevant to both the “uncharged acts” and where it is described in the “other evidence”, I assume to suggest a similarity or underlying unity of method that may give the proposed tendency evidence “significant probative value” in reality the modus operandi of the sexual contact is entirely consistent with seduction, persuasion and execution of sexual activity that in its character is not criminal.
I accept for the purposes of this judgment that to have a sexual interest in a particular category of person and to act upon that interest in a particular way sufficiently describes a relevant tendency to have a relevant state of mind and a tendency to act in a particular way. It was not argued by the accused, nor could it, that the relevant main tendencies “pleaded” which I have identified (ignoring for the moment the ‘further and better’ particulars which will need refining before trial) are available as evidence of tendencies of significant probative value if capable of being established by the relevant evidence relied upon for tendency purposes. The decisions of Hughes and Bauer are pertinent cases in point. But in order to have significant probative value the Crown in my view needs to show not only a relevant state of mind, that is a sexual interest in a person of a similar class as the complainant, but in conjunction a tendency to act upon that interest in the manner alleged by the complainant. That is not the case in relation to the circumstances of KK and LL. They are not in the same “class” of person. There are similarities of age but the complainant on his version of the timing of the relevant events particularised in the counts (which will no doubt be the subject of strong challenge given the license records and the relationship of alleged events to him undertaking driving lessons with the accused having obtained he is driver’s license). However, the two witnesses were older and both could have been or were adults at the time of the commencement of their sexual relationship with the accused. LL was definitely 19, KK could have been 18 years of age. Their personal circumstances of connection to the accused are each very different. The evidence falls far short of that, and says nothing more than the fact that the accused was a homosexual who was attracted to young men of the same sex. Putting aside dissimilarities and the character of any sexual conduct as alleged by the complainant and can be divined from the evidence of KK and LL, part of the Crown’s case in proof of guilt of the charges in the indictment is that the accused took advantage of his position as Parish Priest with a pastoral connection to the complainant and his family.
This is not the case in relation to KK. He was not Catholic and was not ministered by the accused. There are other matters identified in the accused’s submissions, including the fact that he attended the local State school. There was no ‘grooming’ through the agency of a connection with the parents as there was for CC. Although KK was Catholic and came to know the accused through Parish activities he had left school and there appears no grooming by agency of developing a relationship with the person’s parents. There is not any way that it could be said, on the evidence of LL, that he was taken advantage of or groomed or set upon by the accused in the manner described by CC. I bear in mind that LL was relevantly older and was not a student at school when he commenced his sexual relationship with the accused, although he had common religious interests. I also bear in mind some of the matters identified by the Crown in its tendency notice as reflecting similarity in “grooming”. But the evidence from these two witnesses, KK and LL, is that the accused had a lively intellect, had interests that he shared with them or they shared with him, in a manner that could either arise in a platonic relationship or in a romantic relationship, but fell far short of “grooming” behaviour, bearing in mind that the complainant’s version of events is that of “grooming” for the purposes ultimately of taking sexual advantage of the complainant without his consent, or providing the opportunity for sexual contact with or without that consent. Again, in any event the evidence of KK and LL lacks the specificity to give the evidence significant probative value. There is not a sufficient pattern of conduct or modus operandi to establish the “facts in issue”, as opposed to establishing more general matters which are not of significant probative value (Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 at [42] – [44] – per Basten JA: BP v R [2010] NSWCCA 303, at [108], per Hodgson JA).
It is not appropriate that I comment or rule upon the use of the term “grooming” in relation to CC. The issue is raised in the accused’s submissions as ‘objectionable’. But it seems to be a matter to be assessed in due course by the character of the “context evidence”. I would have thought in passing, not that this is a substantial matter for consideration of the present time, that the use of the word “grooming” was not unacceptably descriptive based on the complainant’s version of events. It is a term commonly used in this context notwithstanding the fact that the word “grooming” can also describe specific offences with which this accused is not charged.
With regard to the evidence of the accused’s correspondence in 1992 in the context of making enquiries about access to restricted literature, photographs or making contact with other gay young men, and the interview conducted by police in 1996 whether the accused made admissions about his sexual interests, as with any admissions made to the psychologist in 2015, (putting aside for the moment the voluntariness or otherwise of that last interview and concerns the accused may have had about the way in which his interests were reported and the like), this evidence either individually, or taken together, or in conjunction with the evidence of the complainant, does not have significant probative value. It may and in fact clearly can establish a particular type of sexual interest. But not one that has significant probative value to establish that the accused had a tendency to act upon his sexual interests in a particular way or more pertinently, to commit sexual assault without consent. There is in relation to this evidence the consideration of the effluxion of time between the alleged events giving rise to the charges (1986 – 1987) and the events relevant to the enquiries made about access to pornographic material and the like. Some of the admissions made to the psychologist may reflect contemporaneity with the time frame of the alleged offences.
A relevant matter to consider is a particular interest existing some years apart from alleged events in assessing the probative value of the claimed tendency in establishing relevant offences. This was the case in McPhillamy, although in that matter the claimed tendencies were said to exist before the alleged offending the subject of the trial not after, and there was a 10 year gap. Here the gap in time is less and the events occur after the alleged crimes. Be that as it may this class of evidence again has the vice, if one may pardon the pun, of transposing a legal attitude or conduct onto, or into, attitudes and conduct that are criminal. As a matter of logic, putting aside the lapse of time aspect, one would have thought, in the context of the reasoning in McPhillamy, that a pre-existing tendency had more pertinence than a tendency said to exist after particular crimes. Further, an interest in pornography of a particular type, is not probative that a person is a rapist or, make it more likely that one will become a rapist.
If it could be held that this evidence of “other acts” had significant probative value in my view it ought to be excluded by the operation of s101 of the Act. The probative value of the evidence is substantially outweighed by the risk of prejudice. One of the complications of this case in this context is the difficulty of directing the jury that conduct that is otherwise legal should not be seen as reprehensible having regard to the occupation of the accused at the relevant time. I have earlier indicated that the fact that an accused person is a Priest, notwithstanding the current climate of allegations against clergy, findings of the Royal Commission into Institutional Child Abuse and the like, is a matter that can be dealt with by appropriate legal direction to ensure a fair trial for an accused. But what the accused admits to by his statements and conduct is a sexual orientation that in the current climate is not illegal, but may not be seen as acceptable for a person who has entered ‘Holy Orders’ as ordination is described. Direction cannot overcome the risk of prejudice to the accused occasioned by having to sift through his sexual orientation in order to divine tendencies that may establish, or are capable of establishing, his guilt in relation to the charges on the indictment. As I made the point to counsel, I conclude this from my experience of conducting trials of clergy for historical sexual abuse. I am a great believer in the capacity of proper direction to remove the risk of prejudice given my anecdotal experience of juries acquitting accused of offences notwithstanding the current “climate”.

Conclusions

I admit evidence identified by the Crown in its ‘Tendency Notice’ as “Cross Admissible” as relevant to establish the two particular tendencies that have significant probative value.

A tendency to have a particular state of mind, that is, to be sexually attracted to the complainant, and

A tendency to act in a particular way, that is, to act upon that attraction to the complainant by engaging in sexual acts with and/or towards the complainant.

The evidence of “Uncharged Acts” are, in reality, not suitable for ‘charging’ and are not admissible as tendency evidence but are available as evidence of “context” and/or “relationship”. I understand this latter aspect is not disputed, and in any event it has been agreed between the parties that evidence of “relationship” is admissible having regard to s 293 Criminal Procedure Act 1986.
The “Other Evidence”, as described in the Crown’s ‘Notice’, does not have significant probative value, If otherwise it ought not be admitted pursuant to s 101 Evidence Act 1995.
This and the preceding 52 pages comprise the judgment of Judge Norrish QC delivered on 23 April 2020

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Decision last updated: 13 July 2020

Medium Neutral Citation:	R v AA [2020] NSWDC 362
Hearing dates:	20 & 21 April 2020
Decision date:	23 April 2020
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	I admit evidence identified by the Crown in its ‘Tendency Notice’ as “Cross Admissible” as relevant to establish the two particular tendencies that have significant probative value. The evidence of “Uncharged Acts” are, in reality, not suitable for ‘charging’ and are not admissible as tendency evidence but are available as evidence of “context” and/or “relationship”. The “Other Evidence”, as described in the Crown’s ‘Notice’, does not have significant probative value, if otherwise it ought not be admitted pursuant to s 101 Evidence Act 1995.
Catchwords:	Interlocutory orders – admissibility of tendency evidence
Legislation Cited:	Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	BP v R [2010] NSWCCA 303 Ceissmann v R [2015] NSWCCA 74 DAO (2011) 81 NSWLR 568; [2011] NSWCCA 63 Demirok [1976] V.R. 244 DPP v RDT [2018] NSW CCA 293 DSJ v R (2012) 84 NSWLR 758; [2012] NSWCCA 9 Hughes v R (2017) 263 CLR 338; [2017] HCA 20 IMM v R (2016) 257 CLR 300; [2016] HCA 14 JG v R [2014] NSWCCA 138 Jones v R [2014] NSWCCA 280; (2014) 246 A Crim R 425 McPhillamy v R [2018] HCA 52; (2018) 92 ALJR 1045 Mol v R [2017] NSWCCA 76 Pfenning v R [1995] HCA 7; 182 CLR 461 R v Bauer [2018] HCA 40; (2018) 92 ALJR 1045 R v Carroll (2002) 213 CLR 635; [2002] HCA 55 R v Dent [2016] NSWSC 99 R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 R v Watkins [2005] NSWCCA 164; (2005) 153 A Crim R 434 Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 Sokolowskyi [2014] NSW CCA 55, 239; (2014) 239 A Crim R 528
Category:	Procedural and other rulings
Parties:	Regina (Crown) AA (Accused)
Representation:	Counsel: Mr A Terracini (DPP) Ms M Swift (Accused) Solicitors: Ms C Patrizi (DPP) Ms C Younes (Accused)
File Number(s):	2018/00137078
Publication restriction:	No