R v Ford - [2009] NSWCCA 306

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Ford [2009] NSWCCA 306

FILE NUMBER(S):
2008/2734

HEARING DATE(S):
19 November 2009

JUDGMENT DATE:
17 December 2009

PARTIES:
The Crown (Appellant)
Adrian Ford (Respondent)

JUDGMENT OF:
Campbell JA Howie J Rothman J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/2734

LOWER COURT JUDICIAL OFFICER:
Sorby DCJ

LOWER COURT DATE OF DECISION:
20 October 2009

COUNSEL:
D Woodburne SC (Crown)
RJ Button SC; AJ Williams (Respondent)

SOLICITORS:
Solicitor for Public Prosecutions (Crown)
Legal Aid Commission (Respondent)

CATCHWORDS:
EVIDENCE – tendency – section 97 Evidence Act – what amounts to tendency evidence – whether evidence of a tendency is admissible even if that tendency is not itself the criminal activity alleged – whether tendency evidence must itself show a tendency to commit acts similar to the criminal activity alleged – degree of specificity required of tendency evidence – test for relevance of tendency evidence – test of appellate review of decisions about tendency evidence – whether reviewable according to Warren v Coombes (1979) 142 CLR 531 or House v The King (1936) 55 CLR 499 – APPEAL AND NEW TRIAL – appeal – nature of appellate review of a decision as to the admissibility of tendency evidence – whether reviewable according to Warren v Coombes (1979) 142 CLR 531 or House v The King (1936) 55 CLR 499 – Court of Criminal Appeal – section 5F Criminal Appeal Act – whether an appeal to the Court of Criminal Appeal is an appeal by way of rehearing – nature of the error that is required to be established

LEGISLATION CITED:
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995

CATEGORY:
Principal judgment

CASES CITED:
AE v The Queen [2008] NSWCCA 52
Alexandroaia v The Queen (1995) 81 A Crim R 286
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Antonovic v Volker (1986) 7 NSWLR 151
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 83 ALJR 951; 258 ALR 14
Archer v Howell (1992) 7 WAR 33
Baker v The Queen [1975] AC 774
Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256
Biogen Inc v Medeva plc [1997] RPC 1; (1996) 36 IPR 438
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424
BWM v The Queen (1997) 91 A Crim R 260
CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172
Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Colby v The Queen [1999] NSWCCA 261
Costa v Public Trustee of NSW [2008] NSWCA 223; (2008) 1 ASTLR 56
CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1
DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226
Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124
Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38
Em v The Queen [2006] NSWCCA 336
Em v The Queen [2007] HCA 46; (2007) 232 CLR 67
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Giovannone v The Queen [2001] NSWCCA 22; (2001) 119 A Crim R 519
Harrison v Melham [2008] NSWCA 67; 72 NSWLR 380
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ibrahim v Pham [2007] NSWCA 215
Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51
Jovic v Lamont [2007] NSWCA 47
Kocer v R [2006] NSWCCA 328
Mace v Murray (1955) 92 CLR 370
Markisic v Commonwealth of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158
Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
Perpetual Trustee Company Limited v Khoshaba [2006] NSWCA 41; (2006) 14 BPR 26,639
Pfennig v The Queen (1995) 182 CLR 461
R (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] QB 955
R v BD (1997) 94 A Crim R 131
R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326
R v Cittadini [2008] NSWCCA 256; (2008) 189 A Crim R 492
R v Cook [2004] NSWCCA 52
R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700
R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308
R v GAC [2007] NSWCCA 315; (2007) 178 A Crim R 408
R v Harker [2004] NSWCCA 427
R v Li [2003] NSWCCA 407
R v Lockyer (1996) 89 A Crim R 457
R v Milton [2004] NSWCCA 195
R v MM [2004] NSWCCA 364
R v Ngatikaura [2006] NSWCCA 161; (2006) 161 A Crim R 329
R v Powch (1988) 14 NSWLR 136
R v RN [2005] NSWCCA 413
R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
R v Smith [2008] NSWCCA 247; (2008) 190 A Crim R 8
R v Sophear Em [2003] NSWCCA 374
R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182
R v Zhang [2005] NSWCCA 437; (2005) 227 ALR 311; 158 A Crim R 504
Savouts v Minister for Immigration and Multicultural Affairs [2000] FCA 1059
Singer v Berghouse (1994) 181 CLR 201
Townsend v Townsend [2001] NSWCA 136
Warren v Coombes (1979) 142 CLR 531
Williams v Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255; [2000] Aust Torts Reports 81-578 (64,136)
Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85; (2009) 53 MVR 187; [2009] Aust Torts Reports 82-024 (63,400)
Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171
Zoram Enterprises Pty Ltd v Zabow [2007] NSWCA 106; (2007) 71 NSWLR 354

TEXTS CITED:

DECISION:
(1) Vacate the ruling made by his Honour Judge Sorby on 20 October 2009.
(2) In lieu thereof, rule that the evidence contained in the statements of AG and ZM is admissible at the trial of the Respondent on a charge of sexual intercourse with TL without consent on 14 January 2007.
(3) Direct the Solicitor for Public Prosecutions to notify the Registrar of this Court, and my Associate, in writing, promptly after the trial of the Respondent has concluded.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/2734
CAMPBELL JA
HOWIE J
ROTHMAN J
17 DECEMBER 2009

REGINA v Adrian FORD

Judgment

CAMPBELL JA: This appeal is brought by the Director of Public Prosecutions under section 5F(3A) Criminal Appeal Act 1912 concerning a ruling on admissibility of evidence made by a judge of the District Court. The ruling was given following a voir dire held before any jury was empanelled. The judge ruled that certain evidence that the Crown wished to call at the trial of a charge brought against the Respondent would not be admissible. The judge gave the ruling on 20 October 2009. This appeal has been brought on quickly, as the trial is due to commence on 15 February 2010.
So far as presently relevant, section 5F Criminal Appeal Act provides:
“(1) This section applies to:
(a)proceedings (including committal proceedings) for the prosecution of offenders on indictment in … the District Court, and …
(3A)The … Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution’s case.
(4)An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates.
(5) The Court of Criminal Appeal:
(a)may affirm or vacate the judgment, order, decision or ruling appealed against, and
(b)if it vacates the … decision or ruling, may give or make some other … decision or ruling instead of the … decision or ruling appealed against. …”
The Respondent accepts that this Court has jurisdiction to hear the present appeal.
The Notice of Appeal identifies the orders that the Crown seeks as:
“1.An order vacating the decision or ruling made by his Honour Judge Sorby.
2.An order that the evidence does have significant probative value and is admissible for the purpose of establishing that the accused has a tendency to act in a particular way.
3. An order that the evidence is admissible.
4.Such further or other orders as this Honourable Court thinks fit.”
The Respondent resists each of the first three orders sought. In the alternative, it submits that even if order 1 is made, orders 2 and 3 should be refused.
The Procedural Background
The Respondent was originally charged, by a single indictment presented in the District Court, with three different types of offence, namely:
Sexual intercourse with TL without consent on 14 January 2007.
Indecent assault of AG on or about 20 May 2007.
Indecent assault of ZM on or about 20 May 2007.
On 29 July 2008, the Crown had served on the Respondent’s solicitor a notice pursuant to section 97 Evidence Act 1995 of what it contended was a tendency of the Respondent. The Crown gave notice that it would be contending that, by reason of that tendency, evidence of each of TL, AG and ZM would be admissible against the Respondent on all counts of the indictment.
The Respondent brought a Notice of Motion dated 15 August 2008 in those District Court proceedings. It sought, in substance, that the sexual intercourse without consent charge be severed from the remaining counts on the indictment and tried separately, that the evidence in relation to TL be inadmissible in any trial concerning AG and ZM, and that the evidence in relation to AG and ZM be inadmissible in any trial concerning TL.
On 8 September 2008, his Honour Judge Sorby ruled that the sexual intercourse without consent count should be severed from the other counts, that the sexual intercourse without consent count be tried separately from the other counts, and that the evidence in relation to TL be inadmissible in any trial concerning AG and ZM. The transcript of the hearing does not reveal any ruling about whether the evidence in relation to AG and ZM would be admissible in any trial concerning TL. No reasons for judgment were delivered, and no formal orders or rulings were made.
The trial of the counts alleging indecent assault of AG and indecent assault of ZM proceeded on the next day. That trial resulted in the conviction of the Respondent on all counts.
On 10 March 2009, the Respondent was arraigned before his Honour Judge Berman on an indictment containing the remaining single charge, of sexual intercourse with TL without consent on 14 January 2007. The Crown asked the judge for a ruling that the evidence of AG and ZM was admissible as tendency evidence in the trial relating to TL. The Crown Prosecutor appearing before Judge Berman was a different prosecutor to the one who had appeared before Judge Sorby. The prosecutor told Judge Berman what his understanding was of the rulings that Judge Sorby had made. The transcript continues:
“HIS HONOUR: I understand. His Honour decided that the evidence in relation to the events of 14 January 2007 could not be used as tendency evidence in relation to the events of May 2007, is that right?
CROWN PROSECUTOR: That’s my understanding, I wasn’t there--
HIS HONOUR: But he didn’t decide the other way?
CROWN PROSECUTOR: No, your Honour.”
Counsel appearing for the Respondent before Judge Berman was the same counsel who had appeared for the Respondent before Judge Sorby. Judge Berman enquired of that counsel about the application made to Judge Sorby. Counsel told Judge Berman that the application was for severance of the counts,
“… and that the Crown be not permitted to adduce in the trial of the indecent assault counts evidence of TL--
HIS HONOUR: But of course not the other way around because that was the trial that his Honour was dealing with at the time.
[COUNSEL]: That’s right.”
After argument, Judge Berman delivered a judgment on 10 March 2009 in which he ruled that the evidence of AG and ZM was admissible in the trial concerning the alleged sexual assault of TL.
On 11 March 2009, the Respondent’s counsel – contrary to what had been asserted the previous day – expressed the view that Judge Sorby had made a ruling on 8 September 2008 by which his Honour excluded the evidence of AG and ZM in proceedings relating to TL. Counsel submitted that the ruling of Judge Berman should be revisited in light of section 130A Criminal Procedure Act 1986 (which, in broad terms, makes a pre-trial order made by a judge in sexual offence proceedings binding on a trial judge in those proceedings unless the trial judge decides otherwise). Counsel’s instructions were withdrawn by the Respondent, and the matter was adjourned without Judge Berman needing to consider any further the admissibility of the evidence of AG and ZM.
On 20 October 2009, the matter came before his Honour Judge Sorby. The Crown requested clarification of rulings he had made on 8 September 2008 concerning the admissibility of the evidence of AG and ZM. It was on 20 October 2009 that the judge delivered the judgment the subject of the present appeal.
Judge Sorby said that he had prepared detailed reasons after 8 September 2008, that were subsequently not required by the parties, in which he had decided “in the context of both trials the evidence of the three complainants should not be used as tendency evidence in either trial”. Those reasons were, it seems from the transcript, longhand reasons that had been disposed of once it became apparent that the parties did not require them. Judge Sorby said:
“… my detailed reasons were not handed down, and the transcript is unclear; not helped by the fact that the separate argument and the tendency submissions came mixed together, something I should have dealt with at the time to avoid any confusion.
Earlier this year Judge Berman of this court was asked to adjudicate on the tendency evidence point, having been erroneously advised that I had not made a ruling on tendency. He did so, handing down his decision on 10 March 2009. His ruling was that the proposed tendency evidence of the Crown had probative value and its probative value substantially outweighed any prejudicial effect it may have had on the accused. I have had the advantage of reading Judge Berman’s remarks and reasons. In view of the fact that Judge Berman was inadvertently not made aware of what I had decided, and in the interest of justice, I decided to revisit the question.”
Judge Sorby went on to hold that the evidence was not admissible.
The Substance of the Evidence in Question
Under this heading in the judgment I recount evidence but make no findings about it.
TL, who was aged 18 when she made a statement in June 2007, attended a barbeque at the Respondent’s home, probably on the evening of 13 January 2007. She had not met the Respondent before, and came to be attending because her friend A was a relative of the Respondent’s girlfriend. The Respondent was 36 years old at the time. The Respondent gave TL several drinks during the night and by the end of the night she felt “pretty drunk”. Between 2:00 am and 3:00 am on 14 January 2007, TL decided to go to bed. She saw the Respondent standing at the bathroom door as she was exiting the bathroom. Her head was spinning from the effects of alcohol. The Respondent guided her into a spare bedroom and placed her onto a single bed where she immediately went to sleep. She was wearing underpants, as well as some other items of clothing, when she went to sleep.
TL awoke sometime during the night with difficulty breathing. She realised the Respondent was lying on top of her and pressing down on her chest. He was having penile/vaginal intercourse with her. She tried to scream but was unable to. The Respondent placed his hand over her mouth and said, “Don’t tell [A]”. At that time A was asleep on a mattress on the floor in the same room. The Respondent withdrew and left the room. TL was in shock and passed out. TL later complained to police and made a statement on 3 June 2007.
ZM, who was aged 28, attended a party at the Respondent’s home on 19 May 2007. She was a friend and work colleague of the Respondent’s girlfriend, and had met the Respondent a few times previously. ZM consumed about seven drinks of Jim Beam and Coke. She decided to go to sleep soon after 3:00 am and lay “head to toe” with a man named P on the lounge. Her clothing at the time included track pants, and underpants. She woke up to the sensation of someone’s hand inside her underpants, rubbing her vagina. Her hand was also taken and placed on someone’s penis. ZM “fully woke up” and saw the Respondent beside the lounge and she pulled her hand away from him. By that time he was no longer touching her. She shook her head and pulled the blanket over her head twice until the Respondent went away. Prior to the Respondent leaving, ZM pinched P on the leg to try to rouse him but he didn’t wake up. ZM gave a statement to police on 3 June 2007.
AG, who was aged 20 in June 2007, also attended the party at the Respondent’s home on the evening of 19 May 2007. AG said that by the end of the night she was “pretty drunk and feeling very sleepy”. The Respondent’s girlfriend took her to a spare room and she slept on the bottom bunk of a set of bunk beds. She awoke to feel someone stroking her hair and kissing her face. She thought it might have been C, a man she once dated. She then felt someone touching her breast between her outer clothing and her underwear. She pulled the hand away. The man then grabbed her hand and placed it on his penis. She said, “fuck off” and pulled her hand away but then felt the man trying to undo the buttons on her jeans. She hit the hand away and said “fuck off” again. She turned towards the man and saw that it was the Respondent. AG gave a statement to police on 7 June 2007.
The Respondent was interviewed by police on 19 June 2007. The Respondent generally declined to answer questions but in relation to TL denied that sexual intercourse occurred.
Relevant Evidence Act Provisions
The provisions of the Evidence Act that bear upon the admissibility of the evidence of AG and ZM at the Respondent’s trial concerning the alleged incident on 14 January 2007 are:
“55(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
…
56(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2)Evidence that is not relevant in the proceeding is not admissible.
…
97(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
…
101(1)This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2)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.
…
135The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
…
137In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”
The Dictionary to that Act includes:
“probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
tendency evidence means evidence of a kind referred to in subsection 97(1) that a party seeks to have adduced for the purpose referred to in that subsection.”
The Tendency the Crown Asserts

The Crown served notice of its intention to adduce tendency evidence on 30 January 2009. It stated:
“The tendency sought to be proved is his tendency to act in a particular way, namely to sexually assault and indecently assault women who are asleep in his home after they have been drinking alcohol.”
It identifies the precise parts of witness statements, and of the transcript of evidence given at the previous hearing, that the Crown alleges establish the tendency for which it contends. No complaint is made about the adequacy of this notice to fulfil the requirement of section 97(1)(a).
In the course of argument before his Honour Judge Sorby, the Crown refined somewhat the way it formulated the tendency. The judge identified the tendency that the Crown ultimately came to rely upon as being:
“… a tendency to act in a particular way, namely to sexually molest young women who (1) have stayed over at his house after attending a party, (2) have consumed a significant amount of alcohol, (3) are asleep, (4) where there is a risk of being discovered by others in the house.”
The Judgment Appealed From
Judge Sorby incorporated by reference into his judgment a table that the Crown had prepared that set out similarities and differences between the accounts of the three women.

[TL] [AG] [ZM]

Date of Offence 14 January 2007 20 May 2007 20 May 2007

Place of Offence Accused’s home in [suburb] Accused’s home in [suburb] Accused’s home in [suburb]

Time of Offence Early hours of morning Early hours of morning Early hours of morning

Reason for attending home of Accused Party Party Party

Complainant well affected by alcohol Yes Yes Yes

Complainant went to sleep before alleged offence Yes Yes Yes

Complainant and accused knew each other well No No No

Other people in the house at time of offence Yes Yes Yes

Awoken by the accused during offence Yes Yes Yes

Accused stroked the complainant’s hair No Yes No

Accused kissed the face of the complainant No Yes No

Accused fondled the complainant’s breast No Yes No

Accused rubbed the complainant’s vagina No No Yes

Accused placed complainant’s hand on his penis No Yes Yes

Penile/vaginal intercourse Yes No No

Accused placed hand on complainant’s chest and held her down Yes No No

Accused spoke to complainant during offence Yes: [The accused] said, “Shh” and “Don’t tell [A].” – see para 12 Yes: [The accused said] “Who’s [K]?”… “It’s [P]”… “if you don’t fuck off I’ll start screaming.” He said, “I’m sorry forgive me.” – see para 12 of statement. Yes: [The accused said]: “Are you sure.” – see para 13 of statement.

Accused ceased sexual contact when asked to stop by complainant. No: the accused placed his hand over the mouth of the complainant and said “Shh” preventing her from talking or screaming. Yes. Yes – after the accused rubbed the complaint’s vagina the complainant tried to roll away. The accused then placed the complainant’s hand into his pants and on to his penis. The complainant pulled her hand away, looked at the accused and shook her head from side to side and said, “No.” the complainant covered her head with a blanket for a short while. When she uncovered her face from the blanket she saw the accused, he said, “Are you sure.” She shook her head from side to side, then closed her eyes and covered her face with the blanket. The accused walked away. – see para 13-14.

The judge recorded the Crown’s submission that the circumstances surrounding the alleged assaults had striking similarities, and that although the actual acts of sexual molestation of the three women were different, it would be “unduly narrow” to emphasise these differences as they only played a part in the overall pattern of behaviour. He recorded the submission of the Respondent that, “not only must the surrounding circumstances of the acts be similar, as they here are as demonstrated by the Crown’s schedule, but the various sexual activities must be similar as well …”. The judge referred to, but distinguished, the statement of Blanch J (with whom McClellan CJ at CL and Hislop J agreed) in R v Smith [2008] NSWCCA 247; (2008) 190 A Crim R 8 at 12-13 [17], where Blanch J said:
“The trial judge did note the similarity of the surrounding circumstances but in addition to that, in my view, there were similarities in relation to the way the offences were alleged to have occurred. The significant feature of the complaint of TG was the fondling and stroking of her vagina and legs. The evidence relating to the first occasion where the respondent is charged with an offence against TM involved him stroking her vagina and touching her bottom before he inserted his finger in her anus. The evidence relating to the second occasion was that after he had put her hand on his penis and tried to pull her towards his penis, he began touching her vagina before he inserted his finger in her vagina. On the third occasion he was stroking her vagina before he inserted his finger in her vagina. In my view the virtually identical surrounding circumstances of all of these allegations and the similarities involved in carrying out the various activities involved in the allegations does lead to the conclusion that the evidence sought to be tendered by the Crown is admissible as tendency evidence. That conclusion is not frustrated simply by the fact that on some occasions the respondent went further than simply touching and fondling.”
Judge Sorby recorded a submission by counsel for the Respondent that the last sentence of this quotation from the judgment of Blanch J had to be seen in the factual context of that case, whereas in the case before Judge Sorby there was “a dramatic difference in the sexual molestation alleged to have occurred between the accused and [TL]” and that of which AG and ZM had complained. Judge Sorby set out the relevant parts of the statements of each witness, and concluded:
“There is a marked contrast in the events described by [AG] and [ZM] and that of [TL]. This is not a case where the offender whilst with [TL] ‘went further’. There is no evidence that anything else occurred other than what is set out in the statement, and to suggest otherwise would be speculation. Whilst not – for tendency to apply, the evidence need not demonstrate a tendency to commit a particular crime, the rule applies to evidence showing a tendency to ‘act in a particular way’.
In my view, such a particular way includes not only the general circumstances surrounding a specific act as set out here in the Crown’s schedule, but also as important the particular act or acts and the immediate circumstances around those act or acts that is alleged to have been committed by the accused. I have set out the specific acts earlier in this judgment.
In my opinion, the significant difference between what the jury found that the accused did to [ZM] and [AG] compared to what is alleged by the Crown the accused did to [TL], notwithstanding the considerable similarities and surrounding circumstances at the accused’s house on 14 January 2007 and 20 May 2007, as set out in the Crown’s schedule – that the similarities of the sexual interference on the two occasions are significantly different to such a degree that the proposed evidence of the Crown’s tendency does not amount to tendency and the application fails.”
Having found that the evidence, when taken together “does not amount to tendency”, his Honour did not go on to consider whether the evidence would have significant probative value, or the application of section 101(2) Evidence Act.
By comparison, his Honour Judge Berman had been satisfied that the evidence established a tendency on the part of the accused “to do something unusual, that is to indecently assault women who are asleep at his place after having attended a party there”. Judge Berman was satisfied that the evidence had significant probative value, and that the probative value of the evidence substantially outweighs its prejudicial effect.
Interrelationship of Evidence Act Provisions Concerning Tendency Evidence
Before section 97 can operate, the evidence that is sought to be tendered must be relevant to a fact in issue, within the meaning of section 55. If the evidence is relevant, then section 56 makes it admissible, unless there is some other provision of the Evidence Act that makes it inadmissible.
One such provision of the Evidence Act that can make relevant evidence inadmissible is section 97(1). Section 97(1) operates as both an exclusionary, and an inclusory rule of evidence. If evidence is of the type referred to in the chapeau of section 97(1), that evidence is made inadmissible. To be of the type referred to in the chapeau of section 97(1) the evidence must satisfy two separate criteria. One concerns its content, namely that it be evidence of the character, reputation or conduct of a person, or of a tendency that the person has or had. The other concerns the forensic purpose that the evidence plays in the proceedings, namely that it is sought to be used 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.
However, if each of paras (a) and (b) of section 97(1) is satisfied, the exclusionary rule stated in the chapeau does not apply (cf Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 at 63 [48].)
The provisions that I have been discussing so far under this heading apply equally to civil and criminal trials. In criminal trials, section 101(2) provides a separate restriction on the use of tendency evidence. Even if evidence is of a type that falls within the chapeau to section 97(1), but satisfies each of the requirements of paras (a) and (b) of section 97(1), it still cannot be tendered by the prosecution unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
Decision Concerning the Reasoning Below
There are two serious flaws in the way the judge’s reasoning proceeded in the present case. The first is that he treated the conclusion he arrived at, that “the proposed evidence of the Crown’s tendency does not amount to tendency” as though it were a reason for the evidence not being admissible. If evidence were truly not evidence of a tendency (and not evidence of any of the other matters referred to in the chapeau to section 97(1)) then section 97(1) would not operate on it at all. Thus, if it was relevant evidence, section 97(1) would provide no bar to its admissibility.
The second flaw is the judge’s apparent view that the tendency evidence must itself show a tendency to commit acts that are closely similar to those that constitute the crime with which a particular accused is charged. That is not so. All that a tendency need be, to fall within the chapeau to section 97(1), is “a tendency to act in a particular way”.
Of course, before any question can arise of section 97 being applicable to evidence that a person has some particular tendency, whether that person has such a tendency must itself be relevant to a fact that is in issue concerning the particular crime that is charged. This was recognised in R v Cittadini [2008] NSWCCA 256; (2008) 189 A Crim R 492, when Simpson J (with whom McClellan CJ at CL agreed) said (at 495 [22]-[23]):
“Proof of a tendency to act in a particular way of itself goes nowhere. Evidence that a person had a particular tendency is adduced in order to render more probable the proposition that, on a particular occasion relevant to the proceedings, that person acted in a particular way (or had a particular state of mind); that is, to provide the foundation for an inference to that effect.
Put another way, tendency evidence is tendered to prove (by inference), that, because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceeding, acted in a particular way (or had a particular state of mind).”
Similarly in R v Harker [2004] NSWCCA 427 at [57], Howie J (with whom Santow JA and Bell J agreed) said:
“… tendency evidence is placed before the jury as evidence tending to prove the guilt of the accused. The jury are asked to reason that, because the accused acted in a particular way on some other occasion or occasions, he or she must have acted in the same way on another occasion.”
The case law contains examples of the way in which a tendency to engage in a particular type of behaviour can be relevant to whether an accused has committed a particular crime charged, even though that tendency does not in itself involve performance of a contravention of the same provision of the criminal law as that charged, or closely similar behaviour. In R v Li [2003] NSWCCA 407, Dunford J (with whom Spigelman CJ agreed) said at [11]:
“Section 97 is not directed only at evidence showing a tendency to commit a particular crime but showing a tendency ‘to act in a particular way’. In this case it was directed to showing that the appellant had a tendency to use violence to the complainant and to seek to control her in stressful marriage situations, and was relevant to whether he did by his actions on the night in question effectively ‘detain’ her; but it was not necessary for this purpose to show that he had detained her on any other occasion.”
Similarly, R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 involved an appeal under section 5(1)(a) Criminal Appeal Act1912 against conviction (at 325 [75]). The appellant, who was a parish priest, had been convicted of various counts involving a variety of homosexual conduct with a boy belonging to his parish. The judge had admitted evidence of another boy who had also been the subject of the appellant’s advances. The judge had rejected evidence from other boys about the appellant’s sexual activities with them. Necessarily, given the type of appeal it was, the Crown had no capacity to allege error on the part of the judge in rejecting that evidence. However, at 324 [67], Simpson J (with whom McClellan CJ at CL agreed) described, with apparent approval, the “tendency” sought to be illustrated by the whole of the evidence that the Crown had sought to tender on this topic was evidence that:
“… sought to establish a pattern of behaviour, or even a modus operandi, in the appellant’s behaviour. This included the use of his position as parish priest in meeting Catholic families and involving himself in their lives, developing a special relationship with the families, the children of the families, and in particular with a child the focus of his attention; and the introduction of the child to sexually explicit material and, eventually, inappropriate sexual behaviour.”
The same point about there being no need for the tendency to be to commit acts closely similar to those that constitute the crime charged emerges from R v Smith, in the passage quoted at para [29] above.
In my view, if the Respondent had a tendency of either the type identified by the Crown in its tendency notice, or of the type that the Crown ultimately came to rely upon in argument before Judge Sorby, that would be relevant to whether the Respondent had engaged in the acts that are the subject of the charge concerning TL. For a man to sexually interfere with a female houseguest while she is still asleep is fairly unusual. If the evidence of AG and ZM were to be accepted, that would not suffice to make out the charge concerning TL, but a jury could justifiably take the view that it increased the probability of TL’s evidence concerning the elements of the crime charged being correct.
It follows from what I have said so far that in my view, the evidence is relevant, and is evidence of a tendency to act in a particular way, within the meaning of section 97(1). It is possible for a person to have a tendency to act in a particular way even if that tendency has not shown to be manifested on very many occasions. The forensic purpose of its tender is to prove that the Respondent has a tendency to act in a particular way, namely that identified in the tendency notice or in Judge Sorby’s identification of the tendency in his judgment. Thus, the evidence falls within the chapeau of section 97(1) and will be inadmissible unless the requirements of paras (a) and (b) of section 97(1) are met, and the requirements of section 101(2) are also met.
Before proceeding further, I should give some more general consideration to the preconditions for admission of tendency evidence, and the appropriate test to apply before a decision concerning the admissibility of tendency evidence can be overturned on appeal. As mentioned earlier, there is no issue in the present case that the requirements of section 97(1)(a) have been satisfied. Even though Judge Sorby did not seek to apply either section 97(1)(b) or section 101(2) in the present case, it is relevant to consider the nature of the task involved in applying those provisions for the purpose of deciding whether this Court itself should apply them.
Section 97(1)(b)
It is the judge making the decision about admissibility of evidence who must decided whether the test in section 97(1)(b) has been satisfied. Insofar as it incorporates the phrase “significant probative value” the Act’s definition of “probative value” set out at para [24] above, is invoked.
Probative Value
Concerning that definition of “probative value”, Spigelman CJ (with whom Simpson and Adams JJ agreed) said in R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 at 237 [61]-[62]:
“In my opinion, the critical word in this regard is the word could in the definition of probative value as set out above, namely, ‘the extent to which the evidence could rationally affect the assessment …’. The focus on capability draws attention to what it is open for the tribunal of fact to conclude. It does not direct attention to what a tribunal of fact is likely to conclude. Evidence has ‘probative value’, as defined, if it is capable of supporting a verdict of guilty.
This conclusion is reinforced by the test that evidence must ‘rationally affect’ the assessment. As Gaudron J emphasised in Adam [v The Queen [2001] HCA 57; (2001) 207 CLR 96 at 115 [60]], a ‘test’ of ‘rationality’ also directs attention to capability rather than weight.” (original emphasis)
Thus, making a decision about the probative value of evidence does not involve a judge usurping any of the functions of a jury. Rather, it involves making a decision of law about the reasoning processes that would be open to a jury.
Significant Probative Value
The test for whether evidence not only has probative value, but also “significant probative value” was described by Lehane J in Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171 at 175-6. His Honour said that relevance was not enough, but rather it must be shown that the evidence “could rationally effect the assessment of the probability of the relevant fact in issue to a significant extent; ie, more is required than mere statutory relevance.”
Similarly, in R v Lockyer (1996) 89 A Crim R 457 at 459 Hunt CJ at CL noted that the terms of the definition of “probative value” are substantially similar to those of the definition of “relevance” in the Act, and said:
“… the probative value of evidence is the degree of its relevance to the particular fact in issue. There is no definition of ‘significant’ probative value as that phrase is used in s 97. In its context as I have outlined it, however, ‘significant’ probative value must mean something more than mere relevance but something less than a ‘substantial’ degree of relevance … One of the primary meanings of the adjective ‘significant’ is ‘important’, or ‘of consequence’. In my opinion, that is the sense in which it is used in s 97. To some extent, it seems to me, the significance of the probative value of the tendency evidence … must depend upon the nature of the fact in issue to which it is relevant and to the significance (or importance) which that evidence may have in establishing that fact.”
Hunt CJ at CL in substance repeated that analysis in R v Lock (1997) 91 A Crim R 356 at 360-1.

For a judge to decide that evidence has “significant probative value” is, like the decision about whether the evidence has “probative value” at all, a decision about the reasoning processes that are open to a jury.
It has previously been observed that the generality with which a tendency is stated may be such that it provides a handicap to that evidence having “significant probative value”: Townsend v Townsend [2001] NSWCA 136 at [78] per Giles JA (with whom Hodgson JA agreed); Ibrahim v Pham [2007] NSWCA 215 at [264] per Campbell JA (with whom Hodgson and Santow JJA agreed).
Section 101(2)
Is Section 101(2) a Provision about Admissibility?
It has been observed that, unlike sections 135 and 137 (which are cast in terms of whether evidence is admitted) section 101(2) uses different language, namely that evidence of a particular type “adduced by the prosecution cannot be used” against the defendant unless a particular condition is met. As Simpson J pointed out in R v Fletcher at 318-19 [46]-[48] treating section 101(2) literally, as a provision that limits the use that can be made of evidence that has already been adduced, presents insuperable problems in a jury trial. It has on previous occasions been regarded as an exclusionary rule: R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 at 713 [54]; R v Zhang [2005] NSWCCA 437; (2005) 227 ALR 311; 158 A Crim R 504 at [125]; R v GAC [2007] NSWCCA 315; (2007) 178 A Crim R 408 at 413 [18]. No submission has been made that we should not treat section 101(2) as an exclusionary rule of evidence. I propose to do so.
Meaning of “Prejudicial Effect”
It has also been noticed that there is a textual difference between section 101(2) on the one hand, and section 135 and 137 on the other, in that the latter sections talk of unfair prejudice, while the former talks about a “prejudicial effect”. A course of authority makes reasonably clear that this difference is not one of substance.
The unfair prejudice referred to in section 137 is not that the evidence is harmful to the interests of the accused because it tends to establish the Crown case. If that were so, then the more powerful the evidence was in showing the guilt of the accused, the greater would be the difficulty of the Crown in putting the evidence before the jury. Rather, the unfair prejudice referred to in section 137 is harm to the interests of the accused that is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way: R v BD (1997) 94 A Crim R 131 at 139 per Hunt CJ at CL; Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at 325 [91] per McHugh J. In R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 at 199 [116], Wood CJ at CL (with whom Sully and Howie JJ agreed) said that the prejudice referred to in section 137 meant “damage to the defence case in some unacceptable way, for example by provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves”.
Other authority about the need for prejudice in section 137 to be unfair, in the sense of there being a risk of it being misused, is in R v Shamouil at 239 [72]-[73].
The same concept, of evidence being prejudicial if it involves a risk of an unfair trial, has been adopted in relation to section 101(2). In R v RN [2005] NSWCCA 413, this Court (Sully J, with whom Grove and Howie JJ agreed) adopted, as expressing the essence of the task called for by section 101(2), the statement by McHugh J in Pfennig v The Queen (1995) 182 CLR 461 at 528-9:
“If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.”
Further, there have been repeated statements in this Court to the effect that once evidence had passed section 101(2) it was not possible to think of circumstances in which it could then be rejected under section 137: R v Harker at [46]; R v Ngatikaura [2006] NSWCCA 161; (2006) 161 A Crim R 329 at 343 [71]; AE v The Queen [2008] NSWCCA 52 at [41]. That would not be so if there were a difference of substance between section 101(2) and section 137.
The Balancing Task
The nature of the balancing task required to be done under section 137 is the same as the nature of the balancing task required to be done under section 101(2). R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 was a decision of a five member bench of this Court, constituted to consider a conflict in previous decisions of the court concerning construction and application of section 101(2). In Pfennig v The Queen (1995) 182 CLR 461 (a decision given concerning the common law, not concerning the Evidence Act), Mason CJ, Deane and Dawson JJ had said, at 482-3:
“Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here ‘rational’ must be taken to mean ‘reasonable’ and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.”
In Ellis, Spigelman CJ (with whom Sully and O’Keefe JJ agreed) concluded, at 718 [94]-[95]:
“The words ‘substantially outweigh’ in a statute cannot, in my opinion, be construed to have the meaning which the majority in Pfennig determined was the way in which the common law balancing exercise should be conducted. The ‘no rational explanation’ test may result in a trial judge failing to give adequate consideration to the actual prejudice in the specific case which the probative value of the evidence must substantially outweigh.
Section 101(2) calls for a balancing exercise which can only be conducted on the facts of each case. It requires the Court to make a judgment, rather than to exercise a discretion. (See R v Blick (2000) 111 A Crim R 326 at 333 [20] per Sheller JA; F Bennion ‘Distinguishing Judgment and Discretion’ [2000] Public Law 368.) The ‘no rational explanation’ test focuses on one only of the two matters to be balanced – by requiring a high test of probative value – thereby averting any balancing process. I am unable to construe s 101(2) to that effect.”
In R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326 at 332-3 [19]-[20], Sheller JA (with whom James and Dowd JJ agreed) said of the task involved in section 137:
“When an application is made by a defendant pursuant to s 137 to exclude evidence, the first thing the judge must undertake is the balancing process of its probative value against the danger of unfair prejudice to the defendant. It is probably correct to say that the product of that process is a judgment of the sort which, in terms of appellate review, is analogous to the exercise of a judicial discretion: see the cases referred to by Priestley JA in Moran v McMahon [(1985) 3 NSWLR 700] at 716 and following, particularly Lee Transport Co Limited v Watson (1940) 64 CLR 1 at 13 and Miller v Jennings (1954) 92 CLR 190 at 197. In the second of those cases, Dixon CJ and Kitto J, in an appeal against damages awarded by the trial judge, said of the sum awarded that it was ‘reached after a very full and careful examination of the facts of the case and it represents an informed judgment upon a matter which must largely be one of opinion and must be governed to a not inconsiderable degree by an estimate formed of the witnesses and in particular the appellant’. Translated to the task set by s 137, a trial judge’s estimate of how the probative value should be weighed against the danger of unfair prejudice will be one of opinion based on a variety of circumstances, the evidence, the particulars of the case and the judge’s own trial experience. In that sense, the result can be described as analogous to a discretionary judgment: see Heydon, A Guide to the Evidence Acts (2nd ed, 1997), par 3.725.
Even so, and with due respect, there seems to me to be a risk of error if a judge proceeds on the basis that he or she is being asked to exercise a discretion about whether or not otherwise admissible evidence should be rejected because of unfair prejudice to the defendant. The correct approach is to perform the weighing exercise mandated. If the probative value of the evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, there is no residual discretion. The evidence must be rejected.”
In R v Cook [2004] NSWCCA 52 at [38], Simpson J (with whom Ipp JA and Adams J agreed) said that section 137:
“… is not a section that confers a discretion on the trial judge, although the balancing exercise has been said to be ‘akin’ to the exercise of a discretion. S137 calls for the exercise, not of a discretion, but of judgment. It is in that sense that it is ‘akin’ to the exercise of discretion; whilst there will be cases in which the facts are so plain that they admit of only one outcome, there will be many in which minds may properly differ. The exercise of judgment is not, in my view, akin to the exercise of discretion in the sense that, if the exercise is not performed in accordance with the section, it cannot then be undertaken by an appellate court. This Court may, in my view, consider whether the result of the balancing exercise, even if performed having regard to irrelevant considerations, was correct.”
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 at [47], [58]; R v RN [2005] NSWCCA 413.
The Standard for Appellate Review Under Section 5F(3A)
The Diversity of Types of Appeals
Deciding an appeal under section 5F Criminal Appeal Act requires one to be clear about the nature of the appeal that section 5F creates. Not all appeals are of the same nature. In Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124 at 128-9 [2], Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said:
“… an ‘appeal’ is not a procedure known to the common law, but, rather, always is a creature of statute. (The authorities are collected in Fox v Percy (2003) 214 CLR 118 at 124 [20]. In Graziers Association (NSW) v Australian Legion of Ex-servicemen and Women (1949) 49 SR (NSW) 300 at 303, Jordan CJ said that re-hearings under the pre-Judicature Act procedures of the Court of Chancery were appeals ‘in effect’.) Further, the term ‘appeal’ may be used in a number of senses. In Fox v Percy (2003) 214 CLR 118 at 124 [20], Gleeson CJ, Gummow and Kirby JJ referred to the fourfold distinction drawn by Mason J in an earlier decision (Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 619-622) as follows:
‘(i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo.’
But these categories cannot represent a closed class and particular legislative measures, such as those with which this appeal is concerned, may use the term ‘appeal’ to identify a wholly novel procedure or one which is a variant of one or more of those just described. It was in that vein that McHugh J pointed out in Eastman v The Queen ((2000) 203 CLR 1 at 40-41 [130]. See also Turnbull v Medical Board (NSW)[1976] 2 NSWLR 281 at 297-298 per Glass JA):
‘Which of these meanings the term ‘appeal’ has depends on the context of the term, the history of the legislation, the surrounding circumstances, and sometimes an express direction as to what the nature of the appeal is to be.’
In short, it is the proper construction of the terms of any particular statutory grant of a right of appeal which determines its nature: Elliott v The Queen (2007) 234 CLR 38 at 42-43 [7].”
Spigelman CJ in Perpetual Trustee Company Limited v Khoshaba [2006] NSWCA 41; (2006) 14 BPR 26,639 at [32] said, concerning the test for appellate intervention in a first instance decision:
“The contemporary jurisprudence of the High Court emphasises that the starting point for the determination of such issues must be a careful analysis of the text of the statute establishing the right to appeal. (See, eg Fleming v The Queen (1998) 197 CLR 250 at [7]-[12]; Dinsdale v The Queen (2000) 202 CLR 321 at [20]-[22], [57]-[58]; Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [5]-[19]; Roy Morgan Research Centre Pty Ltd v State Revenue (Vict) (2001) 207 CLR 72 at [9]-[12], [46]-[51]; Fox v Percy (2003) 214 CLR 118 at [21]-[23]; Weiss v The Queen (2005) 80 ALJR 444 at [9]-[11], [31]-[40]; CSR Ltd v Della Maddalena [2006] HCA 1 at [13]-[19].)"
See also CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 at 196-7 [95].
A court exercising a statutorily conferred power or jurisdiction has the power or jurisdiction expressly conferred by the statute, and as well, by implication, such powers as are incidental and necessary to the exercise of that jurisdiction and those powers: DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 at 240-1 [25]; Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38 at 47-8 [30].
The Type of Appeal that Arises Under Section 5F
In Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158 at [11]-[13], Basten JA (with whom Grove and Howie JJ agreed) said:
“[11] Section 5F(4) provides that an appeal under that section is to be determined on the evidence given in the proceedings to which the appeal relates, unless, by leave, fresh, additional or substituted evidence is adduced. Such provisions have, in cases involving civil jurisdiction, been relied upon in support of the conclusion that the nature of the appeal is by way of rehearing: see, eg, CDJ v VAJ (1998) 197 CLR 172 at [95]-[101] and Allesch v Maunz (2000) 203 CLR 172 at [22]. As Mr Game SC for the applicant noted, there is a suggestion in the judgment of Hunt CJ at CL in BWM (1997) 91 A Crim R 260 at 265-267, that an appeal pursuant to s 5F ‘is not by way of rehearing’: at p 265. However, neither Gleeson CJ nor Hidden J joined in his Honour’s comments in that respect. Hunt CJ at CL referred (at p 267) to Alexandroaia (1995) 81 A Crim R 286 at 290, as authority that an appeal pursuant to s 5F was not by way of rehearing. However, the discussion in Alexandroaia at p 290 is to the effect that an exercise of discretion is only reviewable on the grounds identified in House v The King (1936) 55 CLR 499 at 504-505. As Gleeson CJ noted in BWM, at p 261, that is not the same question. What Hunt CJ at CL appears to have meant by an appeal ‘by way of rehearing’ is to be understood by reference to his summary of the applicant’s argument in BWM that ‘an appeal pursuant to s 5F is by way of rehearing, and that it is for this Court to determine for itself whether the Crown should have leave to withdraw its acceptance of the plea, without first concerning itself with the issue as to whether error had been demonstrated …’: pp 264-5.
[12] His Honour also relied, by way of comparison with the terms of s 5F, on the express reference to a ‘rehearing’ in s 5AA(3) of the Criminal Appeal Act. That subsection was repealed by the Courts Legislation Amendment Act2000 (NSW), Schedule 3, [1]. The explanatory note to the amendment stated that it ‘removes the requirement that any such appeal is to be by way of a rehearing of the original evidence’. This, however, is not standard use of the terminology. As explained in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [13]-[14]:
‘If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of a hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.
Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.’
Accordingly, adopting the orthodox use of the terminology, an appeal pursuant to s 5F is an appeal by way of rehearing.
[13] Such a description of the nature of the appeal does not provide a full indication of the powers of the Court and the limitations on those powers. In an appeal under s 5F, unlike an appeal against conviction following a jury trial, this Court may have the benefit of reasons given by the trial judge, as it did in this case. On the other hand, it does not have the benefit of having seen the witnesses give evidence and respond to cross-examination, which constrains the ability of the Court to interfere with findings as to credibility.”
Contrary to the submission of Mr Game that Basten JA recorded, Hunt CJ at CL in BWM v The Queen (1997) 91 A Crim R 260 did more than “suggest” that an appeal pursuant to section 5F “is not by way of rehearing”. It was his considered view, supported by reasons. However, the refusal of Gleeson CJ and Hidden J to endorse that view have the effect that it is not part of the decision of the court in BWM.
The decision in Alexandroaia v The Queen (1995) 81 A Crim R 286, on which Hunt CJ at CL had relied, was a decision about the test for appellate review, under section 5F, of a judge’s refusal of an adjournment of a criminal trial – the archetype of a discretionary decision on a matter of practice and procedure that is reviewable only in accordance with House v The King (1936) 55 CLR 499. Thus, it is not a decision about the appellate standard for review of all decisions under section 5F.

Before Norvenska, this difference between Hunt CJ at CL on the one hand, and Gleeson CJ and Hidden J on the other, had been noted, but not resolved, by Sheller JA (with whom Grove and Kirby JJ agreed) in Giovannone v The Queen [2001] NSWCCA 22; (2001) 119 A Crim R 519 at 523-4 [14]-[16], and by Sully J (with whom Meagher JA and Dowd J agreed) in R v Glossop [2001] NSWCCA 165 at [8]-[11].
I agree with Basten JA that the right of appeal created by section 5F is an appeal by way of rehearing, in the conventional sense of appeal “by way of rehearing” explained in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at 203-4 [13]-[14]. The proposition that Hunt CJ at CL was rejecting was, in substance, that the appeal under section 5F is an appeal by way of a hearing de novo.
The Need to Establish Error
Concerning an appeal by way of rehearing in the conventional sense of the term, establishing error on the part of the trial judge is necessary before the appeal succeeds: Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 at 369 per Beaumont and Lee JJ; Williams v Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255; [2000] Aust Torts Reports ¶81-578 (64,136) at [60] per Heydon JA (with whom Spigelman CJ and Sheller JA agreed); Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at 180-181 [23]; Branir Pty Ltd v Owston Nominees (No 2)Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at 435-6 [21]-[25]; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 127-8 [27]; Jovic v Lamont [2007] NSWCA 47 at [60]; and Zoram Enterprises Pty Ltd v Zabow [2007] NSWCA 106; (2007) 71 NSWLR 354 at 379 [99].
How the Type of Decision Appealed Against Affects Establishing Error
The “error” that the appeal court must find need not be of a single type – without trying to be exhaustive, it might be that the court below has made an order or a material finding that the appeal court is satisfied is wrong, or it might be that a process has been followed in either the trial itself or in the pre-trial preparation or in the judge’s reasoning that the law does not permit. Inevitably, it is the appellate court’s own consideration of the evidence and the reasoning in the court below that will be the basis on which it concludes that there is an error in the court below. But a real problem for appellate courts is: “how can I be confident that there is error in the court below?” Appeal court judges need to approach the task of appellate review bearing in mind the inevitable incompleteness of the reasons of the judge below in conveying all the impressions that the evidence and argument have made on the trial judge: Biogen Inc v Medeva plc [1997] RPC 1 at 45; (1996) 36 IPR 438 at 452. Appeal court judges need to approach the decision of the court below with a lively consciousness of their own fallibility and of the limitations under which they carry out their task of review (which are more extensive than concerning factual decisions influenced by demeanour: Fox v Percy at 126 [23] (quoted at para [86] below); Seiwa Australia Pty Ltd v Beard at [150]-[151]). It should also be said that for appellate judges to recognise their limitations is not inconsistent with recognising that there can also be some respects in which an appeal court has an advantage over a trial judge: Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85; (2009) 53 MVR 187; [2009] Aust Torts Reports ¶82-024 (63,400) at [3]; Seiwa Australia Pty Ltd v Beard at [2].
Characteristics of the particular decision that is being appealed against affect whether an appeal court judge can be satisfied that the decision appealed from was in error. One relevant characteristic of the decision is whether it involves deciding a question concerning which the law recognises that there is no single correct answer or whether it involves deciding a question that can only be answered with a “yes” or a “no”. It is not relevant, for this purpose, that the decision is one concerning which one can say that competent lawyers could come to different conclusions. That can be said of many legal matters, including pure question of law. But questions of law, and some questions of mixed fact and law are ones that can be answered only with a “yes” or a “no”, and if the appellate court comes to be satisfied that the answer to such a question is different to that which the court below has arrived at, the appellate court must substitute the answer at which it has arrived. Another relevant characteristic concerns the type of evidentiary basis the court below was required to consider in making the decision. Another relevant characteristic concerns the process of reasoning that the court adopted in reaching its decision. See generally Costa v Public Trustee of NSW [2008] NSWCA 223; (2008) 1 ASTLR 56 at [15]–[19] per Hodgson JA, [32]–[51] per Ipp JA, cf [71]–[105] per Basten JA.
It has frequently been stated that a discretionary decision by a judge can be altered on appeal only within the principles stated in House v The King (1936) 55 CLR 499 at 505. Those principles have been summarised by Heydon JA (Sheller JA and Studdert AJA agreeing) in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274. His Honour said, at [45], that a challenge to a primary judge’s discretionary decision can succeed only if the judge:
“(a)        made an error of legal principle,
(b)          made a material error of fact,
(c)          took into account some irrelevant matter,
(d)failed to take into account, or gave insufficient weight to, some relevant matter, or
(e)arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.”
In accordance with those principles, it is not enough to justify judicial intervention that the judges of the appeal court would have exercised the discretion in a different way had they been exercising the discretion at first instance: Mace v Murray (1955) 92 CLR 370 at 378.
However, the High Court has decisively rejected any suggestion that, if a decision being appealed from can be described as a discretionary decision, it follows that the appeal can be allowed only if the criteria identified in House v The King are met. In Dwyer v Calco Timbers Pty Ltd at 138-9 [37]-[40], Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said:
“The varied use of the term ‘discretion’ is apt to create a legal category of indeterminate reference. This is because the term is used in the description or characterisation of many acts or omissions in the law. It is, as Dyson LJ recently put it (Carty v Croydon London Borough Council [2005] 1 WLR 2312 at 2319; [2005] 2 All ER 517 at 524. See also the observations of Gleeson CJ, Gaudron and Hayne JJ in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 204-205 [19]), ‘a somewhat protean word’ which ‘connotes the exercise of judgment in making choices’, and, in a sense, ‘most decisions involve the exercise of discretion’.
The term ‘discretion’ is sometimes used to describe the scope for selective choice in judicial determination of facts disputed on the evidence, particularly on the oral evidence. Thus in Kades v Kades (1961) 35 ALJR 251 at 253-254; 108 CLR 664 (note) Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ, in the course of upholding the setting aside by the New South Wales Full Court of the decision of the primary judge in a custody dispute, said:
‘[The primary judge] saw and heard the parties as witnesses and he might thereby gauge the personality of each of them. His exercise of his discretion, moreover, should not be set aside except on firm grounds. Yet in this case the learned judge does seem to have mistaken the effect of what Mrs Kades was endeavouring to convey.’
In other settings, ‘discretion’ is used quite differently. Thus, the degree to which a court of equity will interfere in the administration of trusts has been held to reflect the width of discretionary powers which have been conferred on the trustees: Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 at 417, 436, 441-442. The judicial review of administrative decisions made in the exercise of a statutory power or ‘discretion’ attracts a body of principles which in this Court may conveniently be traced back to what was said by Latham CJ in Shrimpton v The Commonwealth (1945) 69 CLR 613 at 620. The exercise of what was called in House v The King (1936) 55 CLR 499 at 504 ‘a judicial discretion’ to impose a particular sentence or to make a particular order under a power conferred by family provision legislation (see Vigolo v Bostin (2005) 221 CLR 191 at 218-219 [74]-[75]), attracts, upon subsequent exercise of a ‘general appellate power’ ((1936) 55 CLR 499 at 505), principles somewhat akin to those developed in public law. The well-known passage in House v The King illustrates this.
Rather different is the situation where statute creates a legal norm, in this litigation that of a ‘serious injury’, and does so in terms which require for their operation in a given dispute the identification and evaluation of facts and assigns that fact-finding in the first instance to a judge sitting alone. The occasion for appropriate appellate intervention will depend upon the nature and scope of the particular statutory appeal for which the legislature provides. That inquiry is not advanced by describing the overall decision-making process of the primary judge as ‘discretionary’.”
The “nature and scope of the particular statutory appeal” were of particular importance in Dwyer v Calco Timbers because the statute creating the appeal that was there in question required the Court of Appeal to “decide for itself whether the injury is a serious injury on the evidence and other material before the judge who heard the application and on any other evidence which the Court of Appeal may receive …” (at 134 [27]). That provision required the appeal to be approached more in the manner of an appeal de novo. There is no analogous provision in section 5F.
Conversely, there are some decisions that are not discretionary, but that nonetheless are reviewed in accordance with House v The King criteria: Singer v Berghouse (1994) 181 CLR 201 at 210-12.
In seeking to understand the way an appellate court hearing an appeal by way of rehearing approaches a decision that involves the application by a primary judge of an evaluative standard to a set of facts, it is instructive to consider the detail of the reasoning of the High Court in Warren v Coombes (1979) 142 CLR 531. The reasoning in question is that which the court employed in arriving at its conclusion about the circumstances in which an appeal court exercising an appeal by way of rehearing should overturn a trial judge’s finding concerning whether there had been a breach of duty of care. In Warren v Coombes, there was no issue about the existence of a duty of care (it will be recalled that the case involved a collision between a boy on a bicycle and a motorist), and, as the majority judgment of Gibbs ACJ, Jacobs and Murphy JJ said, at 536: “The question for decision … is whether the learned trial judge was correct in finding that the respondent was not negligent.” It was in relation to whether the trial judge was wrong in deciding there had been no breach of duty of care that their Honours said, at 551:
“… in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.”
It was also in relation to the question of whether the trial judge was wrong in deciding that there had been no breach of duty of care that their Honours said, at 552-3:
“… we can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process. The duty of the appellate court is to decide the case – the facts as well as the law – for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment. Further there is, in our opinion, no reason in logic or policy to regard the question whether the facts found do or do not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge. On the contrary we should have thought that the trial judge can enjoy no significant advantage in deciding such a question. The only arguments that can be advanced in favour of the view that an appellate court should defer to the decision of the trial judge on such a question are that opinions on these matters very frequently differ, and that it is in the public interest that there should be finality in litigation. The fact that judges differ often and markedly as to what would in particular circumstances be expected of a reasonable man seems to us in itself to be a reason why no narrow view should be taken of the appellate function. The resolution of these questions by courts of appeal should lead ultimately not to uncertainty but to consistency and predictability, besides being more likely to result in the attainment of justice in individual cases. The interest of the community in the speedy termination of litigation might, no doubt, be an argument in favour of the complete abolition of appeals, although that would be far too high a price to pay merely for finality. However, if the law confers a right of appeal, the appeal should be a reality, not an illusion; if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it.
The way their Honours there proceeded was by considering whether, given the particular type of decision the judge below had made, the appellate court was in as good a position as the trial judge to decide that particular question for themselves. If, taking account of any advantages that the trial judge has, the appeal court is still able to reach the conclusion that the decision of the trial judge was wrong, the appeal court should overturn it.
The fact that the decision of a trial judge involves weighing and balancing various factors does not of itself mean that the appeal court is not in as good a position as the trial judge to make that particular decision, and thus to conclude that the trial judge was in error. As I pointed out in Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56 at [105] a decision by an appellate court about whether a defendant in a negligence action has failed to act with reasonable care involves taking into account such matters as:
“… what choices for action were open to the defendant, was the availability of those choices for action something that the defendant knew or ought to have known, were any of those alternative methods of proceeding ones that the defendant was required by legislation to follow, what type and seriousness of injury is predictable might happen if one of those alternative courses of action is not followed, what is the extent of the risk that injury will result if one of those alternative courses of action is not followed, what disadvantages to other people might arise from the various alternative ways of proceeding, how serious are those disadvantages and what is the risk of them arising, and what were the respective costs (to the defendant and anyone else) of following those various alternative methods of proceeding.”
Notwithstanding that being the nature of the task, in Warren v Coombes the court held that, at least in circumstances where the facts are undisputed or have been established, an appellate court is in as good a position as the trial judge to carry out that balancing function.
One way in which characteristics of the decision appealed against affect whether an appeal court can be satisfied a trial judge’s decision was made in error is stated in Fox v Percy. Gleeson CJ, Gummow and Kirby JJ made clear that the obligation of an appellate court conducting an appeal by way of rehearing was to “conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons” (at 126-7 [25]), and “give the judgment which in its opinion ought to have been given in the first instance” (at 125 [23]). However there are “natural limitations” on an appellate court that proceeds wholly or substantially on the record (125 [23]), and the appellate court’s obligation to review can only be carried out within those natural limitations (126-7 [25]). At 126 [23] of Fox v Percy, their Honours made clear that the advantage of a trial judge is by no means confined to the making of factual findings that are affected by demeanour. Deliberately not being exhaustive, their Honours said that the limitations on an appellate court:
“… include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.” (citations omitted)
The majority in Fox v Percyat 128 [28] stated that in some cases “incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings”. Their Honours also acknowledged, at 128 [29], that “In some, quite rare, cases, although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case”, and be justified by those matters in reversing a trial judge’s conclusion on a matter of fact.
The inevitable advantage of a trial judge over an appellate court is one of the “natural limitations” on the ability of an appeal court to be satisfied that the trial judge has erred. In the sort of situations identified by their Honours in 128 [28] and [29], an appellate court can be satisfied that the trial judge has erred in making a factual finding that was affected by demeanour.
In Seiwa Australia Pty Ltd v Beard at [154], after reviewing this case law, I concluded, with the agreement of Allsop P and Macfarlan JA:
“More generally, concerning any factual finding of a trial judge that is affected by any of the different ways in which the trial judge has an advantage over the appellate court, there needs to be a reason, such as those identified in 128 [28] and [29] of Fox v Percy, that explains why it is that an appellate judge is satisfied, notwithstanding the circumstance that would usually give the trial judge an advantage, that there is error in the finding. But once an appellate judge is satisfied that there is such a reason, the obligation of the appellate judge is to correct the error.”

The question of whether this Court should exercise its power to decide about section 97(1)(b) and 101(2) is influenced by the present case containing a factor that is unusual. It is that the question of admissibility of the evidence now in dispute has been considered both by Judge Berman and by Judge Sorby.
Section 97(1)(b)
I have earlier concluded that, on an appeal, this Court is in as good a position as a trial judge to reach a view about whether disputed evidence has “significant probative value”. All the relevant material is before us, and I see no reason why we should not decide that question.
The Respondent accepts that the evidence in question has some probative value, but disputes that it has significant probative value. It submits that there is no striking pattern of similarity between the incidents. In my view there is no need for there to be a “striking pattern of similarity between the incidents”. All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged. In my view, it meets that test.
The Respondent submits that “the phenomenon of young women, who are drunkenly sleeping after a social event, being the subject of sexual interference is unfortunately not so compellingly rare or exceptional as to give the evidence significant probative value”. I do not accept that tendency evidence has to be of a tendency to do an act that is “compellingly rare or exceptional” before it can have significant probative value.
I am satisfied that the evidence in question has significant probative value, within the meaning of section 97(1)(b).
The Respondent’s concession that this Court has jurisdiction to hear the present appeal has as a necessary part of it a concession that the ruling appealed from “eliminates or substantially weakens the prosecution’s case” (section 5F(3A)). While I am able to reach the conclusion that the evidence in dispute in the present case satisfies the “significant probative value” test without regard to that concession, the concession supports the conclusion that the evidence in question has “significant probative value”.
Section 101(2)
There have been cases where this Court has set aside on an appeal a judge’s ruling concerning admissibility of evidence, but has declined to make a ruling about whether the evidence would fail a test that depended upon the unfairness of admitting the evidence. In R v Harker, even though the judge’s decision was set aside, this Court did not itself exercise the section 101(2) discretion. Howie J said, at [60]:
“I do not believe that the Court should indicate how the discretion arising under s 101(2) should be exercised if, and when, the matter comes back before the District Court for hearing as to the admissibility of the evidence of DE. Of course on that occasion the material before the trial judge might be different to that which was before Judge Puckeridge, particularly if DE is called to give evidence on a Basha inquiry and is cross-examined on behalf of the respondent. Further, the nature of the discretion under s 101(2) is such that reasonable minds might differ on how it should be exercised in any particular case: Milton at [33]. It could not be said that it is not open for a trial judge to exercise the discretion under s 101(2) to reject the evidence, provided of course that the discretion is exercised in a principled way and adequate reasons are given.”
In R v Smith, Blanch J took the course of not making a final decision about the application of section 101(2). He said, at [21]:
“On the basis of the material produced to this Court in the form of a summary of the Crown case, I would admit the evidence but that is a matter which can be left to the trial judge to determine in the light of the evidence as it emerges in the trial.”
R v MM [2004] NSWCCA 364 was an appeal by the Crown against a pre-trial ruling that excluded certain evidence. The charges related to various sexual acts involving the respondent’s stepdaughter. One issue concerned whether evidence of some admissions that the respondent had made to a probation and parole officer should be excluded under section 138 Evidence Act. James J (with whom McClellan AJA and Grove J agreed) held, at [51], that the judge was mistaken in holding that the evidence of the parole officer had been improperly obtained. Before the District Court judge, counsel for the respondent had submitted:
“… that the Probation and Parole officer’s evidence, if not excluded under s 138, should be excluded under s 90 of the Evidence Act (the discretion to refuse to admit evidence of admissions, if, having regard to the circumstances in which the admissions were made, it would be unfair to the accused to use the evidence) or under s 137 of the Evidence Act (the obligation of a court to refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the accused).” (at [55])
At the appeal, counsel for the respondent urged the court to decide all questions concerning the admissibility of the evidence of the probation and parole officer. James J declined to do so, saying at [57]:
“In my opinion, notwithstanding the power granted to this Court by s 5F(5)(b) of the Criminal Appeal Act, this Court should not in the present case take upon itself to decide any further questions concerning the admissibility of the evidence of the Probation and Parole officer (apart from Judge Maguire’s finding that the Probation and Parole officer’s evidence was also inadmissible as tendency evidence). The present appeal is an appeal by the Crown and par 1 of the Crown’s grounds of appeal, which relates to the evidence of the Probation and Parole officer, is limited to asserting that the judge of first instance erred in refusing to admit evidence ‘as not satisfying tests for admissibility under s 138 of the Evidence Act and/or constituting inadmissible tendency evidence’. More fundamentally, I consider that this Court as an appeal court should be cautious in taking upon itself to decide questions about the admissibility of evidence which have not been decided or even considered by a judge of first instance. This is particularly so, when the questions involve an exercise of discretion or the assessment and weighing of criteria such as ‘probative value’ and ‘unfair prejudice’. I note that in R vSophear Em [2003] NSWCCA 374, an appeal under s 5F(2) of the Criminal Appeal Act, this Court held that a decision by the judge of first instance excluding certain evidence had been erroneous and should be vacated but considered it inappropriate to make any further ruling of its own about the admissibility of the evidence. As stated, SophearEm was an appeal under s 5F(2) and not s 5F(3A), but the powers of the Court of Criminal Appeal conferred by ss (5) of s 5F are the same in both kinds of appeal.”
In R v MM, the Crown sought to tender evidence of the respondent having a practice of collecting and viewing child pornography, and evidence of admissions he had made about certain fantasies concerning sexual acts with children. The District Court judge had held that that evidence could not establish a tendency to engage in the various acts of sexual conduct with a child with which the respondent was charged. There was some unclarity about the trial judge’s reasoning process, but James J took it to be a decision that the evidence was irrelevant to the charge. James J held it was relevant, and on that basis set aside the judge’s finding that the evidence was inadmissible. James J said, at [65]:
“… his Honour held that the ‘tendency’ evidence was inadmissible simply on the basis of its being irrelevant and his Honour did not consider either s 97(1) or s 101(2) of the Evidence Act or any other provision of the Evidence Act which might be relevant. As in the case of the evidence of the Probation and Parole officer which I have already separately considered, I do not consider that this Court as an appeal court should take upon itself to decide questions of admissibility of evidence which were not decided or even considered by the judge of first instance and that, consequently, this Court should not make any decision in relation to the ‘tendency’ evidence, beyond vacating Judge Maguire’s decision, leaving it to a trial judge to determine whether the evidence or parts of it should be admitted.”
R v Sophear Em [2003] NSWCCA 374 to which James J referred, was a decision of this Court on appeal from a pre-trial ruling concerning whether a judge had correctly decided that evidence of an admission should be excluded under section 90 because “having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.” The decision of the judge below was set aside on the basis that he had taken into account irrelevant considerations, but this Court did not itself decide whether the use of the evidence would be unfair. Its conduct in so doing was criticised by Kirby J in his dissenting judgment on an appeal from this Court (Em v The Queen [2006] NSWCCA 336) that had rejected a challenge to the eventual conviction of Mr Em: Em v The Queen [2007] HCA 46; (2007) 232 CLR 67. Kirby J said, at 117 [161]:
“The conventional approach to appellate review of a decision of this nature, which has miscarried for consideration of irrelevant matters, is that the appellate court will decide for itself whether, absent such matters, the decision itself was correct, or remit the discretion (or power) to be re-exercised at first instance, absent the erroneous consideration. In the present case a re-exercise of the discretion by the first Court of Criminal Appeal was to be expected, because that Court had accepted that at least three of the considerations mentioned by Shaw J were open on the evidence and relevant to the s 90 decision. But this did not occur.”
No other judge in Em in the High Court mentioned that topic.
The present case is unlike MM in that it is not one where a judge at first instance has not decided the question concerning applicability of section 101(2) – Judge Berman has decided it. As well, all the relevant material is before us. Concerning some evidentiary rulings made in the course of a trial there may be nuances arising from the unfolding of the evidence of the trial that an appellate court might have difficulty in recapturing, but in the present case the decision below was not made in the course of a trial. Neither when the question of the admissibility of the evidence was before Judge Berman, nor when it was before Judge Sorby, was a submission put that it was inappropriate for a decision about applicability of section 101(2) to be made until more was known about how the evidence at the trial unfolded. In those circumstances, in my view it is appropriate for this Court to form its own view about the application of section 101(2).
The Crown also relied, as a factor in favour of this Court forming its own view about section 101(2) on the protracted pre-trial proceedings that had occurred, and the need to have a decision made finally about whether the disputed evidence is admissible. I do not find it necessary to rely upon that consideration.
The Respondent points out, rightly, that section 101(2) requires more than a mere balancing of probative value with prejudicial effect – the probative value must substantially outweigh any prejudicial effect. Furthermore, section 101(2) involves taking into account the realistic possibility of how the jury might regard the evidence – the test concerns “any prejudicial effect it may have on the defendant”. There is no reason to believe that Judge Berman did not appreciate these matters. Judge Berman quoted the statement of Mason P in Colby v The Queen [1999] NSWCCA 261 at [97], a passage that includes:
“The focus is upon the danger that the tribunal of fact will use the evidence upon a basis logically unconnected with the issues in the case …”.
The Respondent submits that the jury may react with revulsion to the allegation that the Respondent has sexually taken advantage of not just one young woman, but three. He submits that the jury will be tempted to punish the Respondent for global sexual criminality, rather than focusing strictly on the elements of the count in the indictment. He submits that one cannot be confident that directions will cure this sort of prejudice.
Judge Berman came to a different view. He considered he was:
“… able to fashion directions to a jury which will focus the jurors’ attentions on the real issues to be decided in this trial. It is the experience of the law, backed up by empirical research, that jurors do their best to follow instructions given to them by trial judges. That is not to say that jurors are immune from prejudice and emotion, but it is to say in assessing the effect of any directions to be given in this matter I should proceed on the basis that jurors will do their best to apply them.”
I agree with Judge Berman in this respect. Taking into account the ability (indeed, the duty) of the trial judge to give directions to the jury about how their task should be performed, I am satisfied that any prejudicial effect, of the type the Respondent identifies, can be dissipated. For that reason, the evidence passes the test in section 101(2).
Judgment on Internet?
Counsel for the Respondent submitted that, regardless of the outcome of this appeal, the judgment should not be placed on the internet until the trial had concluded. He submits that even with the use of pseudonyms there would be some potentially recognisable facts and circumstances concerning the allegation. That course was not opposed by the Crown. There was no application for any general non-publication order, just for steps to be taken to avoid the risk of the judgment being available to potential jurors and witnesses through the internet.
I would be prepared to arrange the administrative steps for this to happen, particularly given the lack of opposition by the Crown, and the comparatively short time that would be involved. However, it is important that the Court’s judgments be available to the public in general as soon as any reason for restricting their availability ceases to be applicable. To enable that to happen, I propose to direct the Solicitor for Public Prosecutions to notify the Registrar of the Court, in writing, promptly after the trial of the Respondent has concluded. The judgment can then be placed on the internet promptly after that notification is received.
Orders
The orders I propose are:
(1)Vacate the ruling made by his Honour Judge Sorby on 20 October 2009.
(2)In lieu thereof, rule that the evidence contained in the statements of AG and ZM is admissible at the trial of the Respondent on a charge of sexual intercourse with TL without consent on 14 January 2007.
(3)Direct the Solicitor for Public Prosecutions to notify the Registrar of this Court, and my Associate, in writing, promptly after the trial of the Respondent has concluded.
HOWIE J: I have read the judgment of Campbell JA in draft and I agree with the orders proposed.
In my view it is unnecessary for the Court to determine the nature and extent of an appeal under s 5F in order to decide the present appeal. On any basis of appellate review the decision of Sorby DCJ that the evidence is not tendency evidence and, therefore, did not come within s 97(1)(a) of the Evidence Act must be set aside. The reasoning upon which his Honour came to that conclusion is, as the Presiding Judge makes clear, unsustainable.
Whatever be the scope of the power under s 5F of the Criminal Appeal Act to review a decision made by a trial judge to reject evidence under s 97, it must at least extend to permitting this Court to determine for itself whether the evidence does, or does not, disclose a tendency to which the section relates. But I am not presently persuaded that the Court can go further and undertake its own evaluation of the probative value of the evidence without regard to the decision made by the judge who determined the admissibility of the evidence. I would prefer not to determine that question in a case where the issue does not strictly arise. I am content to allow the appeal on the basis that Sorby DCJ was clearly in error in the only finding that he made for the reasons given by the Presiding Judge.
The history of this matter in the District Court, as set out by the Presiding Judge, is a troubling one. There has been unacceptable delay in the determination of the allegation made by TL and confusion as to the status of any ruling that Judge Sorby made concerning the evidence that the Crown could lead in that trial. The problems have arisen principally from the failure of Judge Sorby in September 2008 to pronounce unambiguously the rulings he had made and the reasons for making them. Apparently not even the parties that were before him knew precisely what his Honour had determined. The same defence counsel who appeared before Judge Sorby in 2008 also appeared before Judge Berman and yet he was of the opinion that Judge Sorby had not decided the admissibility of the evidence of AG and ZM on the trial relating to TL.
Even if it is accepted that in September 2008 Judge Sorby was being asked to determine the admissibility of the evidence now under consideration on what was ostensibly a separate trial application, his Honour should, in my opinion, have declined to make that ruling once he had determined the separate trial application and was intending to proceed with the trial involving the allegations against AG and ZM. There was no purpose in his making the further ruling on the admissibility of evidence in the trial involving TL when he was not going to be the trial judge. Yet by making that decision he was in effect binding the trial judge by reason of s 130A of the Criminal Procedure Act. Because it has been assumed in the District Court that the section applies to evidentiary rulings, it was essential that Judge Sorby made clear what his rulings were and his reasons for making those rulings as a result of the hearing before him in September 2008. But even without the section, his Honour was duty bound to formally announce his rulings and to give his reasons for them.
What is clear from the history of these proceedings is that the trial judge in sexual assault proceedings to which s 130A applies will not necessarily be making decisions which are quintessentially those to be made by a trial judge. In my opinion the trial judge is the appropriate person to determine any question as to the admissibility of evidence and this Court has always taken that view by remitting issues of admissibility to the trial judge after a ruling under s 5F. In particular, I have difficulty in understanding how any judge but the trial judge can make decisions which involve the exercise of a discretionary judgment such as is found in s 137 and s 101(2) of the Evidence Act. It is the trial judge who is in the best position to determine whether directions or warnings to a jury, which the trial judge will be required to fashion, can reduce any unfair prejudice arising from the admission of the evidence. In R v Harker [2004] NSWCCA 427 at [47] it was made clear that a judge could not reject evidence under s 137 without considering whether warnings or directions to the jury could overcome the prejudice accompanying the admission of the evidence.
However it is open to question whether s 130A has anything to do with evidentiary rulings. The section is concerned with pre-trial orders in sexual assault proceedings. The proceedings before Judge Sorby in September 2008 fell within the scope of the section at least so far as the order for separate trials was concerned. That section relevantly provides:
(1) A pre-trial order made by a Judge in sexual offence proceedings is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding.
…………
(4) For the purposes of this section:
“pre-trial order” means any order made after the indictment is first presented but before the empanelment of a jury for a trial.
“sexual offence proceedings” means proceedings on indictment in respect of a prescribed sexual offence.
“trial Judge” means the Judge before whom the trial proceedings, following empanelment of a jury, are heard.

There have been decisions of this Court holding that the term “interlocutory judgment or order” in s 5F does not include an evidentiary ruling, see for example R v Powch (1988) 14 NSWLR 136. I have difficulty in seeing how an evidentiary ruling can fall within the scope of a “pre-trial order” under s 130A. A decision to admit or reject evidence produces no order.
However, it is clear from the Second Reading Speech introducing the bill that amended the Criminal Procedure Act by inserting the provision that it was intended that it would apply to evidentiary rulings. The speech contains the following:
Rulings on the admissibility of evidence by a judge other than the trial judge are not currently binding and it is not possible to ensure that the same judge will deal with both the pre-trial hearing and the trial. Therefore, in order for rulings made by one judge to be binding on a subsequent trial judge, there must be legislative amendment: Hansard NSW Parliament, Legislative Assembly 16 November 2005 at 19870.
But Harrison v Melham [2008] NSWCA 67; 72 NSWLR 380 has addressed the use to be made of minister’s speeches when interpreting statutory provisions, see per Spigelman CJ at [12] and following and Mason P at [159] and following. This may be a case where Parliament “has missed its intended target”, see Mason P at [161].
However, this was not a matter that was ventilated on the hearing of the appeal and the parties proceeded on the basis that the section did operate. It was under this section that Judge Sorby purported to make the ruling that he did in October 2009. He used the section in effect to overturn the ruling that Judge Berman had made. It was not suggested before us that the earlier rulings made by Judge Sorby in September 2008, whatever they were, continued to apply. If s 130A applied and Judge Sorby had in fact made a ruling on the admissibility of the evidence being considered by Judge Berman, then arguably Judge Berman had no jurisdiction to make the ruling that he made without deciding whether it was in the interests of justice that he not be bound by the earlier ruling of Judge Sorby. The concession made by the parties before Judge Berman that Judge Sorby had not made any such ruling would not have conferred jurisdiction on Judge Berman to make the ruling contrary to s 130A if in fact a ruling had been made.
It should be taken that Judge Sorby by redetermining the issue in the judgment from which the present appeal arises had in effect vacated his earlier ruling and dealt with the question afresh. We are now determining the correctness of that ruling despite the history of the matter and the confusion that has arisen because of the failure of Judge Sorby to articulate the rulings he made in September 2008 or the reasons for making them.
But it is this history of the matter and the effect that s 130A has so far had on the rulings on admissibility of the evidence now under consideration that has convinced me that in the very exceptional circumstances of this case the Court should end the confusion and debate that has so far dogged this trial and declare that the evidence is admissible for the reasons given by Judge Berman. His Honour was the trial Judge when he made the ruling and his ruling was frustrated by the respondent withdrawing instructions from his counsel. On the material before this Court there is no error in the approach taken by Judge Berman for the reasons he gave. The trial is listed in February. On the present state of affairs, if this Court were simply to remit the matter to the trial judge, as is the usual practice, that judge would not know what ruling, if any, was binding under s 130A. If circumstances change and it appears to the trial judge that he or she should reconsider the ruling, the judge is entitled to do so.
ROTHMAN J: I too have read the draft reasons for judgment of Campbell JA. I agree with the orders his Honour proposes.
I have read, also, the reasons in draft of Howie J. I agree with Howie J that in the current judgment, it is unnecessary to determine the nature, extent or test for an appeal under s 5F of the Criminal Appeal Act 1912.
Whether House v R [1936] HCA 40; (1936) 55 CLR 499 applies to s 5F appeals is irrelevant to the outcome of this appeal and was not the subject of substantial argument by counsel. On any test, the outcome below is manifestly unavailable.
As to the question of whether a ruling on evidence is an order for the purpose of s 130A of the Criminal Procedure Act 1986, again it is unnecessary to determine the issue in this appeal, but, as to whether such a ruling is an “order” for the purpose of s 5F, I rely on my reasons (with whom McClellan CJ at CL and Buddin J agreed) in Kocer v R [2006] NSWCCA 328 at [11]-[19]. As is clear from those reasons, the term in a different context may have a very different meaning.
For the reasons given by Howie J at [155], I agree that the Court should make order 2 of the proposed orders.
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LAST UPDATED:
10 June 2010

[TL]	[AG]	[ZM]
Date of Offence	14 January 2007	20 May 2007	20 May 2007
Place of Offence	Accused’s home in [suburb]	Accused’s home in [suburb]	Accused’s home in [suburb]
Time of Offence	Early hours of morning	Early hours of morning	Early hours of morning
Reason for attending home of Accused	Party	Party	Party
Complainant well affected by alcohol	Yes	Yes	Yes
Complainant went to sleep before alleged offence	Yes	Yes	Yes
Complainant and accused knew each other well	No	No	No
Other people in the house at time of offence	Yes	Yes	Yes
Awoken by the accused during offence	Yes	Yes	Yes
Accused stroked the complainant’s hair	No	Yes	No
Accused kissed the face of the complainant	No	Yes	No
Accused fondled the complainant’s breast	No	Yes	No
Accused rubbed the complainant’s vagina	No	No	Yes
Accused placed complainant’s hand on his penis	No	Yes	Yes
Penile/vaginal intercourse	Yes	No	No
Accused placed hand on complainant’s chest and held her down	Yes	No	No
Accused spoke to complainant during offence	Yes: [The accused] said, “Shh” and “Don’t tell [A].” – see para 12	Yes: [The accused said] “Who’s [K]?”… “It’s [P]”… “if you don’t fuck off I’ll start screaming.” He said, “I’m sorry forgive me.” – see para 12 of statement.	Yes: [The accused said]: “Are you sure.” – see para 13 of statement.
Accused ceased sexual contact when asked to stop by complainant.	No: the accused placed his hand over the mouth of the complainant and said “Shh” preventing her from talking or screaming.	Yes.	Yes – after the accused rubbed the complaint’s vagina the complainant tried to roll away. The accused then placed the complainant’s hand into his pants and on to his penis. The complainant pulled her hand away, looked at the accused and shook her head from side to side and said, “No.” the complainant covered her head with a blanket for a short while. When she uncovered her face from the blanket she saw the accused, he said, “Are you sure.” She shook her head from side to side, then closed her eyes and covered her face with the blanket. The accused walked away. – see para 13-14.