R v QX (No 5)
[2021] ACTSC 247
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v QX (No 5) |
Citation: | [2021] ACTSC 247 |
Hearing Date: | 13 August 2021 |
Submissions Last Received: | 17 August 2021 |
DecisionDate: | 10 November 2021 |
Before: | Loukas-Karlsson J |
Decision: | See [106] |
Catchwords: | CRIMINAL LAW – EVIDENCE – pre-trial application – application to adduce tendency evidence – child sexual offences – cross-admissibility of counts – uncharged acts – amendments to tendency provisions after Royal Commission into Institutional Responses to Child Sexual Abuse – s 97A of the Evidence Act 2011 (ACT) – presumption that evidence has significant probative value – presumption not rebutted – whether probative value of the tendency evidence outweighs danger of unfair prejudice |
Legislation Cited: | Court Procedure Rules 2006 (ACT) r 6752 Crimes Act 1900 (ACT) ss 55, 61, 66 |
Cases Cited: | Gardiner v The Queen [2006] NSWCCA 190; 162 A Crim R 233 HML v The Queen [2008] HCA 16; 235 CLR 334 |
Texts Cited: | Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 2 July 2020 Australian Law Reform Commission, Evidence (Interim) (Report No 26, August 1985) Uniform Evidence Law (Tendency and Coincidence) Model Provisions 2019 |
Parties: | The Queen (Crown) QX (Accused) |
Representation: | Counsel S Jerome (Crown) J Pappas (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aulich Criminal Law (Accused) | |
File Number: | SCC 58 of 2020 |
LOUKAS-KARLSSON J:
Introduction
The prosecution in this matter seeks a pre-trial ruling to adduce tendency evidence and additionally, for the counts on the indictments to be cross-admissible as tendency evidence at the trial of QX (the accused) pursuant to ss 97 and 101 of the Evidence Act 2011 (ACT) (Evidence Act). The matter was listed for hearing on 13 August 2021. On that date, the parties indicated that they wished to file further written submissions and for this application to be determined on the papers. I reserved my decision in respect of the application. My decision and reasons now follow.
Background of Matter
On 30 October 2020, the prosecution filed a fresh indictment in this matter after a stay application advanced by the accused was refused by me on 19 August 2020: R v QX [2021] ACTSC 187. The indictment against the accused contains the following offences:
(a) 18 counts of sexual intercourse with a person between the age of 10 and 16 years, contrary to s 55(2) of the Crimes Act 1900 (ACT) (Crimes Act) (Count 2-11, 13-20);
(b) One count of committing an act of indecency on a young person between the ages of 10 and 16 years, contrary to s 61(2) of the Crimes Act (Count 1); and
(c) One count of grooming a young person by engaging in conduct with another person who has a relationship with the young person with the intention of making it more likely that the young person would take part in an act of a sexual nature, contrary to s 66(1)(c) of the Crimes Act (Count 12).
The charges of sexual intercourse with a person between the age of 10 and 16 years and the charge of committing an act of indecency on a person between the ages of 10 and 16 years all relate to the same complainant, BM. The charge of grooming a young person through a third-party relationship has been particularised as the accused communicating with the complainant’s mother (GM) to persuade her that he was a good influence on the complainant and that time spent with him would help the complainant mature.
The prosecution’s case is that the accused engaged in various frequent sexual intercourse with the complainant, who was between 14 and 15 years at the time, for an eleven month period whilst she lived with his family and up until the AFP were alerted and commenced an investigation on 19 June 2019. Counts 1-8 on the indictment are alleged to have occurred while the complainant resided with the accused and his family at their family home. Counts 9-11 and 13-20 are alleged to have occurred while the complainant was no longer residing at the family home.
Tendency
In support of the proof of the alleged offending as charged on the indictment, the prosecution seeks to lead evidence that the accused had a tendency to act in a particular way and have particular states of mind:
(a) That the accused had a sexual interest in the complainant and was prepared to act on that sexual interest by engaging in sexual activity with the complainant for his own sexual gratification.
Pursuant to ss 97(1)(a) and 99 of the Evidence Act, reg 8 of the Evidence Regulation 2012 (ACT) and r 6752 of the Court Procedure Rules 2006 (ACT) (Court Procedure Rules), the prosecution was granted leave to file in court an amended Notice of Intention to Adduce Tendency Evidence (the tendency notice) on 13 August 2021. The tendency notice sets out the substance of the evidence that the prosecution relies on to establish the tendency. The prosecution’s application was also supported by an affidavit of the instructing prosecutor Ms Tahlia Drumgold dated 21 June 2021 (the supporting affidavit) and amended written submissions.
The supporting affidavit exhibits the material that the prosecution relies on in support of its application. It exhibits the indictment, the amended Crown case statement, and transcripts of the complainant’s eight evidence in chief interviews with the police.
In the prosecution’s amended submissions (the prosecution’s submissions), the prosecution summarised the alleged offending in a table titled ‘table one’ and further incidents involving the complainant (uncharged acts) in a table titled ‘table two’ in support of the asserted tendency.
I note that in HML v The Queen [2008] HCA 16; 235 CLR 334 (HML v The Queen), three High Court Justices expressed reservation about the use of the phrase “uncharged acts” (Hayne J at [129]; Crennan J at [399] and Kiefel J at [492]. However, the High Court has since then used the phrase “uncharged acts” in subsequent cases: Hughes v The Queen [2017] HCA 20; 263 CLR 338 (Hughes v The Queen); R v Bauer(a pseudonym) [2018] HCA 40; 266 CLR 56 (R v Bauer). It appears the reservation surrounding the phrase was its use by a trial judge in directing a jury about tendency evidence, as it may convey to a jury “a view, on the part of the judge, that [the uncharged acts] were proper subjects for charges”: HML v The Queen at [492]. The High Court has since proceeded to use the phrase “uncharged acts” after HML v The Queen. As this Court is self-evidently not at the stage of directing a jury, I will therefore adopt the phrase “uncharged acts” throughout this judgment in line with the parties’ submissions and recent High Court jurisprudence. The injunction against the use of the phrase “uncharged acts” is a matter that will have to be borne in mind in relation to directions to the jury when that time arises.
Table one summarised the evidence that the prosecution will rely on at trial to prove each count on the indictment, as it relates to the complainant (Counts 1-11, 13-20) The date range for all of the offences is between 1 July 2018 and 19 June 2019.
Count and Incident No Charge Summary of alleged offending 1
Act of indecency on a young person
First touch of the complainant’s breast
After about a month of living together, the accused initiated physical contact by teaching the complainant ‘self-defence’ and ‘play fighting’. It would occur on a Thursday evening when the accused’s wife, TX, was working a night shift. The accused’s three young daughters were asleep at this time.
The first time the playfights got sexual was approximately one and a half to two months into living together. The complainant was 14 years old at this time.On this occasion, TX was due back from work at about 10PM. The accused and the complainant had been play fighting on and off during the evening. The complainant recalls that it was about 8:30PM when during one of the play fights in the lounge room, she was face down and the accused grabbed her breast for about five seconds. The accused continued to touch the complainant’s breast throughout the play fight and the conduct became normalised.
The following day the accused told the complainant that the play fighting had gotten a ‘bit sexual’ and that they could not continue to do so. The accused would ask the complainant to reassure him that nothing inappropriate had occurred.Date of offending: the day after the first recalled incident, the accused covertly recorded the complainant about what had occurred during their ‘play fight’ and reassurance that it had not been anything sexual. The recording was provided to police by the accused during his record of interview and the accused told police it was recorded on 7 September 2018. The recording was played to the complainant on 19 June 2019 and she recalled the conversation after hearing the recording. The complainant told police that the conversation took place after the first touch of the breast during the play fight and the conversation occurred in the accused’s bedroom.
2 Sexual intercourse with a young person
First occasion of digital penetration of the complainant’s vagina
The accused often came into the 14 year old complainant’s bedroom to say good morning and good night by himself. The accused often did shift work which required him to leave at 5AM and return by 2:30PM.
About 2 weeks after the first incident (Count 1), the accused entered the complainant’s bedroom at 5AM to leave for work. The accused entered, closed the door and said “hi”. The complainant was under the blanket, rolled onto her back, and faced the accused who knelt beside the bed. The accused hugged the complainant and then used a single finger on his left hand to digitally penetrate her vagina for about 30 seconds. The accused then said “goodbye” to the complainant.3 Sexual intercourse with a young person Second occasion digital penetration of vagina
On the same night as Count 2, the complainant watched television with the accused and TX. The complainant went to her room early as she did not want to spend time with TX.
Approximately 40 minutes later at around 9PM, the accused entered the complainant’s darkened bedroom. The complainant awoke to the accused coming into the bedroom. The accused closed the door after entering and said, “good night. I’ll see you tomorrow”. The accused knelt near the complainant’s bed and used his left hand to digitally penetrate the complainant’s vagina for about one minute. The accused then kissed the complainant on her forehead and said, “bye”. The accused was in the room for about two and a half minutes.At this point, the complainant was confused but had developed a crush on the accused.
Date of offending: on an unknown date between 1 July 2018 and 31 December 2018.
4 Sexual intercourse with a young person First day of penile/ vaginal intercourse – first occasion
At this point in time, the complainant was now 15 years old. During the morning, the accused motioned for the complainant to go to her room with him. The accused walked into the room first and closed the door behind the complainant. The accused and the complainant hugged and then the accused pushed the complainant onto the bed. This was consensual. The complainant lay on her back and the accused got on top of her. The accused kissed the complainant’s neck, removed her pants partially and digitally penetrated her vagina for approximately 20 to 30 seconds. The accused then turned the complainant over so that she was laying on her stomach. The complainant had her head to the side, towards the door. The accused pulled his shorts to around his knees and proceeded to penetrate the complainant’s vagina with his penis for approximately 30 seconds to one minute. The pair then hugged for one to two minutes and the accused’s penis remained erect. The accused then again flipped the complainant onto her stomach and again penetrated the complainant’s vagina with his penis. This sexual intercourse was twice the duration of the first instance. No condom was used.
The complainant recalls feeling surprised but also thinking, “oh…he actually did it”, because there had been many occasions where the accused would almost initiate sexual intercourse but would refrain. The complainant was happy at the time the sexual intercourse had occurred because she had a “huge crush” on the accused. The accused and the complainant rearranged their clothes and the accused led the complainant by her hand into the kitchen. The complainant immediately texted her friend Eve Richards (a pseudonym). The accused saw the complainant using her phone and repeatedly asked her who she was texting. The accused told the complainant not to tell anyone about the sexual intercourse.
5 Sexual intercourse with a young person First day of penile/ vaginal intercourse – second occasion
Later that morning as Count 5 at about 11AM, the complainant was in the laundry by herself and she asked the accused for assistance with the washing. The accused pulled both their shorts to their knees, bent the complainant over the washing machine and penetrated her vagina with his penis for 15 seconds. The complainant recalls that accused telling her to not tell anyone afterwards.
6 Sexual intercourse with a young person First day of penile/ vaginal intercourse – third occasion
At about 8:30PM on the same day as Counts 4 and 5, the complainant was brushing her teeth in the bathroom. The complainant was wearing pyjamas. The complainant believes that TX must have been in the shower at this time as she could hear the shower.
Without notice, the accused entered the bathroom, closed the door, and turned off the light. The accused bent the complainant over the sink and lowered her pants to penetrate her vagina with his penis. The accused did this for about a minute and did not ejaculate. The accused then pulled up both of their pants, hugged the complainant, then turned the light on before leaving the bathroom. There was no discussion prior to the sexual intercourse.
7 Sexual intercourse with a young person First day of penile/ vaginal intercourse – fourth occasion – digital penetration
After the complainant finished brushing her teeth and washing her face, she went to her bedroom to go to sleep. About 20 minutes later, the accused came into the complainant’s bedroom to say “goodnight”. The accused gave the complainant a hug, said “goodnight”, and proceeded to penetrate the complainant’s vagina using two fingers. This lasted about 20 seconds.
The complainant thought the incidents of this day were a “pretty big deal”. At this point in time, the complainant felt very strongly towards the accused and disliked TX more intensely.
Date of offending of Counts 4, 5, 6 and 7: on or about 14 December 2018.
8 Sexual intercourse with a young person Recollection of penile/ vaginal intercourse promoted by accused’s covert audio recording
During one of the complainant’s evidence in chief interviews, police played her a recording that the accused had secretly made of a conversation between them. The complainant recalled that she and the accused had penile/ vaginal sexual intercourse in the missionary position the night before she started school for the commencement of the school year. The sexual intercourse in the bedroom of the accused’s daughters and lasted for a few minutes. The accused did not ejaculate. TX and the two eldest daughters were away at the coast.
Date of offending: on or about 29 February 2019. School records state that the term commenced on Wednesday 30 January 2019.
9 Sexual intercourse with a young person First Movie Night at Accused’s House – penile/ vaginal intercourse – first occasion
A movie night at the accused’s house had been arranged via text message between the accused and the complainant. Two of the accused’s daughters were not home and were staying over at a neighbour’s house. Police confirmed with a neighbour that two of the daughters stayed over at her house during March 2019. TX was working overtime that evening and was not at home.
The complainant’s father, DM, dropped the complainant off at the accused’s home between 8PM and 9PM and collected the complainant between 12AM and 1AM. The complainant and the accused watched a horror movie together. The complainant’s electronic list of sexual intercourse with the accused records four occasions of penile/ vaginal sexual intercourse that evening. The complainant cannot recall when or where the fourth occasion of sexual intercourse occurred.
The complainant recalls the first occasion of sexual intercourse on this evening was short in duration and occurred in the missionary position. The complainant recalled that the accused ejaculated. It occurred within 10 minutes of the complainant arriving. The sexual intercourse occurred in the room of the accused’s daughters.
10 Sexual intercourse with a young person First Movie Night at Accused’s House – penile/ vaginal intercourse – second occasion
After Count 9 is alleged to have occurred, the accused and the complainant then watched a movie. About 20 minutes after the movie commenced, the accused and the complainant then had penile/ vaginal sexual intercourse in the missionary position for the second time in the complainant’s old bedroom. The complainant recalled that the accused ejaculated.
11 Sexual intercourse with a young person First Movie Night at Accused’s House – penile/ vaginal intercourse – third occasion
About 30 minutes after Count 10 is alleged to have occurred, the complainant and the accused had penile/ vaginal sexual intercourse in the missionary position. The complainant recalled that the accused ejaculated.
Date of offending of Counts 9, 10 and 11: on or about 10 March 2019.
13 Sexual intercourse with a young person Second Movie Night at Accused’s House – digital penetration and penile/ vaginal sexual intercourse – first occasion
On this evening, the complainant recalls that the accused’s two youngest daughters were at home but the eldest daughter was not. The two youngest daughters were in bed. TX was working a night shift and was due back at the house at 7AM the following morning. The complainant recalls that it was a public holiday the following day. GM dropped the complainant off at the accused’s house at about 9:30PM and the complainant was to take an Uber home later that evening. The complainant told police she had penile/ vaginal sexual intercourse with the accused on four occasions on this evening.
The first instance of penile/ vaginal sexual intercourse occurred five minutes after the complainant arrived at the residence. The accused told the complainant that she should follow him, and they went into the accused’s bedroom. The accused pushed the complainant onto the bed and removed her clothes, being a shirt and pink shorts. The accused proceeded to digitally penetrate the complainant’s vagina for approximately 30 seconds. After digitally penetrating the complainant’s vagina, the accused and the complainant then engaged in penile/ vaginal sexual intercourse in the missionary position for approximately five minutes until the accused ejaculated inside her vagina.
14 Sexual intercourse with a young person Second Movie Night at Accused’s House – penile/ vaginal sexual intercourse – second occasion
After Count 13 is alleged to have occurred, the accused and the complainant got dressed and ate dumplings while watching a horror movie. About 20 minutes into the movie, the accused paused the movie, said “follow me” to the complainant, and then led the complainant into her old bedroom. The accused put the complainant onto the bed, removed her pants, removed his own clothing, before engaging in penile/ vaginal sexual intercourse. The sexual intercourse occurred again in the missionary position for about 15 minutes until the accused ejaculated inside of the complainant’s vagina.
15 Sexual intercourse with a young person Second Movie Night at Accused’s House – penile/ vaginal sexual intercourse – third occasion
After Count 14 is alleged to have occurred, the accused washed the sheets from both his bed and the complainant’s old bed before putting the sheets in the drier. The accused and the complainant then engaged in further penile/ vaginal sexual intercourse on the complainant’s old bed for approximately 15 minutes in the missionary position.
16 Sexual intercourse with a young person Second Movie Night at Accused’s House – penile/ vaginal sexual intercourse – fourth occasion
The complainant then assisted the accused to put the sheets on both beds. They then proceeded to watch more of the horror movie. The accused and the complainant then engaged in penile/ vaginal sexual intercourse for the third occasion that evening, again on the complainant’s old bed. The accused then put the other set of sheets in the dryer and together they watched the end of the horror film. The accused and the complainant then laid on the complainant’s old bed for a short period of time, before the complainant departed via an Uber at about 1:30AM.
Date of offending of Counts 13, 14, 15 and 16: on or about 29 March 2019.
17 Sexual intercourse with a young person Last sexual encounter between the accused and the complainant – digital penetration – first and only occasion
On this occasion, the accused drove over to the complainant’s home in Turner where she was then residing in an apartment with her father. The meeting was arranged via text message when the accused asked her if she wanted to “catch up and kick the footy” a few days prior to the meeting. The accused attended the complainant’s residence with his two eldest daughters. The complainant put a movie on for the daughters to watch. The accused told the complainant to come into her room. The accused and the complainant went into the complainant’s closet within her bedroom and the accused locked the door so that his daughters would not enter. The accused held and kissed the complainant, before laying her on the floor of the closet. The accused then digitally penetrated the complainant’s vagina.
18 Sexual intercourse with a young person Last sexual encounter between the accused and the complainant – penile/ vaginal sexual intercourse – first occasion
After the accused is alleged to have committed Count 17, the accused then penetrated the complainant’s vagina with his penis for approximately two to three minutes. The accused did not ejaculate.
19 Sexual intercourse with a young person Last sexual encounter between the accused and the complainant – penile/ vaginal sexual intercourse – second occasion
After Count 18 is alleged to have occurred, the accused suggested that the complainant and his daughters should all go back to his residence as he did not want the complainant’s father to come home.
Once at the accused’s residence, the accused and the complainant went to the complainant’s old bedroom. The accused put down a towel on the sheets to absorb any bodily fluids. The accused and the complainant then engaged in penile/ vaginal sexual intercourse in the missionary position. The accused ejaculated in the complainant’s vagina.
The accused and the complainant then went and played football at an oval.
20 Sexual intercourse with a young person The accused then drove the complainant and his two eldest daughters to pick up his youngest daughter from day care. The accused drove everyone back to his residence. The accused and the complainant then had penile/ vaginal sexual intercourse in the missionary position. The accused ejaculated.
Date of offending of Counts 17, 18, 19 and 20: on or about 16 April 2019.
Table two summarised further uncharged acts that the prosecution seeks to rely on in support of the tendency.
Table two contains four incidents numbered 21 through to 24 in continuation from the counts on the indictment. The four incidents in table two are as follows:
(a)Incident 21: Frequent touching of the complainant’s breast by the accused’s hand. The date range of Incident 21 is from on or about 7 September 2018 to on or about February 2019. Incident 21 is particularised as the accused grabbing the complainant’s breast during ‘playfights’ that the accused initiated to teach the complainant ‘self-defence’. The prosecution noted that the playfights would take place around the house when the accused’s wife and daughters were not around and continued until the complainant moved out of the accused’s home in February 2019.
(b) Incident 22: The electronic list of sexual intercourse with the accused. As I described in R v QX (No 4) [2021] ACTSC 246 at [11], the list is a “note” contained within the “Notes” application on the complainant’s iPhone. It is a list of various dates with ‘–’ or a ‘þ’ following the date. In her evidence in chief interviews, the complainant states that a ‘–’ means penile vaginal sexual intercourse with no ejaculation and ‘þ’ means penile vaginal sexual intercourse with ejaculation. The complainant started to keep the list on 26 December 2018 and kept it as a precaution. The complainant stated that she had sexual intercourse with the accused a few times in December 2018 and the first sexual intercourse occurred on or about 14 December 2018. The last time the complainant updated the list was on 19 April 2019. However, the complainant does not recall the last occasion on 19 April 2019 and concedes that it does not relate to the accused: R v QX (No 4) at [26]. The complainant cannot recall sexual intercourse occurring on the following dates, but the dates are included within the electronic list:
(1) 26 December 2018;
(2) 31 December 2018;
(3) 1 January 2019;
(4) 2 January 2019;
(5) 3 January 2019;
(6) 4 January 2019;
(7) 5 January 2019;
(8) 10 January 2019;
(9) 19 January 2019;
(10) 22 January 2019;
(11) 23 January 2019;
(12) 28 January 2019;
(13) 30 January 2019.
(c)Incident 23: Sexual activity that occurred when the accused dropped the complainant to a unit in Queanbeyan, New South Wales (NSW). Incident 23 is particularised as occurring on 7 March 2019. At this point in time, the complainant was staying with her father at the Crest Hotel in Queanbeyan NSW. The complainant recalls that this occurred in February or March 2019 when the accused collected her from Lyneham shops after school finished. The accused bought a sleep apnoea machine from Capital Chemist in Lyneham. The prosecution submissions refer to a receipt for hire of a CPAP machine from Capital Chemist on 7 March 2019. The complainant sat in the front passenger seat of the accused’s Nissan dual cab ute. The accused tried to see under the complainant’s skirt and told her to take the shorts she was wearing underneath off. The complainant said “no” as the accused’s three young daughters were also in the car and felt that it was unsafe. The complainant recalls that the accused digitally penetrated her vagina for about 10 seconds while in the car but that it was difficult as she was wearing a seatbelt and the accused was driving the ute, also wearing a seatbelt. Once inside the unit at the Crest Hotel, the accused’s daughters watched ABC kids on the television. The accused and the complainant were in the bedroom of the complainant’s father where the accused digitally penetrated the complainant’s vagina before quickly engaging in penile vaginal sexual intercourse. The accused did not wear a condom and did not ejaculate. The hotel manager recalls seeing the complainant walk up the stairs to the unit with an older male who was dark skinned, Indian descent, and slim.
(d)Incident 24: Frequent digital penetration of the complainant’s vagina by the accused. Incident 24 is particularised as occurring every date between 1 July 2018 and 31 December 2018. The complainant recalls that digital penetration of her vagina would occur twice daily (in the morning and the evening) until about December 2018, when the accused and the complainant first had penile vaginal sexual intercourse.
Accused Submissions
Counsel for the accused opposed the prosecution’s application in its entirety. It was submitted that if the uncharged acts referred to in Count 1 and Incident 21 were identical, they are not incidents which are supportive of the tendency alleged. Count 1 is particularised as the accused touching the breast of the complainant for about five seconds while “playfighting” on an occasion about one and half to two months of the complainant residing with the accused’s family. It is particularised as having occurred on or about 7 September 2018. Incident 21 refers to uncharged acts of the same conduct where it is alleged the accused would touch and grab the complainant’s breast during the “playfights” which took place throughout the time that the complainant resided with the accused’s family. It is particularised as having occurred from 7 September 2018 to on or about February 2019 when the complainant moved out.
In respect of Incident 22, counsel for the accused submitted it was unclear how the prosecution would establish this incident as the complainant does not have any recall as to sexual intercourse that allegedly took place on certain dates recorded within the diary. It was submitted that it appeared that the prosecution intended to lead evidence of the existence of the electronic sex diary and the complainant’s lack of recall on those dates to invite the jury to conclude that something must have occurred on those dates from which the jury can be satisfied of the asserted tendency. It was submitted that it would be unfair for the prosecution to rely upon an “amorphous mass of allegations about which the complainant can give no detail whatsoever” and entail, require the accused to be able to meet the allegations by way of cross-examination.
Probative Value in Single Complainant Sexual Offence Cases
It was noted that the present matter is accurately referred to as a “single complainant sexual offence case”. Counsel noted that there was no corroboration of the counts on the indictment as well as the uncharged acts that the prosecution sought to rely on as tendency evidence. It was submitted that the complainant’s credit will be the central issue in the trial. Counsel submitted that the prosecution sought to adduce tendency evidence in order to bolster the complainant’s credibility and referred to IMM v The Queen [2016] HCA 14; 257 CLR 300 (IMM v The Queen) at [62]-[63] (French CJ, Kiefel, Bell, and Keane JJ) and [101]-[104] (Gageler J). Counsel submitted that the reasoning of the plurality in IMM v The Queen applies with self-evident force to the application by the prosecution to bolster the complainant’s credit by adducing evidence from the complainant of other incidents, both charged and uncharged, to each of the charged acts.
Counsel for the accused accepted that the conduct asserted by the complainant is capable of demonstrating a sexual interest by the accused in her. It was accepted that the conduct would be relevant and noted that in IMM v The Queen, similar evidence was adduced without objection as context evidence at [118].
It was submitted that in order for the prosecution to succeed in its application, the evidence must have more than mere relevance, and it must be shown to have “significant probative value”. Counsel noted that as this matter is a “word on word” case, if the jury was to accept the veracity of one complaint from the impugned source, it could accept more readily another complaint, which was circular. It was submitted that if the acceptance by a jury relates to an uncharged act, the prosecution was not required to be prove an uncharged act to the criminal standard of beyond reasonable doubt. It was submitted that as the Court must accept that the evidence is credible and reliable, the danger of such evidence being admitted was amplified: IMM v The Queen at [52].
Counsel noted that in R v Bauer the High Court had unanimously held that the capacity of uncorroborated evidence of an alleged tendency in a single complainant sexual offence case was capable of satisfying the “significant probative value” requirement in s 97 of the Evidence Act. Counsel referred extensively to the shift in the jurisprudence of the High Court from IMM v The Queen to the unanimous judgment in R v Bauer.
Counsel submitted that to suggest that R v Bauer held that evidence of a complainant in a single complainant sexual offence case of uncharged acts, will always possess “very high probative value” represented two flaws. First, it moved beyond the ratio decidendi into obiter dicta. Second, it undermined the test in s 97(1)(b) of the Evidence Act.
It was ultimately submitted that in a single complainant sexual offence case where the sole issue is the complainant’s credit and whether the allegations occurred at all, the complainant’s evidence cannot satisfy the requirement of having “significant probative value” absent some peculiar or special feature, as was described in IMM v The Queen by French CJ, Kiefel, Bell, and Keane JJ at [62].
Unfair Prejudice
Counsel for the accused expanded on the unfair prejudice said to arise in this particular matter. It was submitted that unfair prejudice may arise from the absence of an opportunity to effectively cross-examine, which would lead to a jury being more likely to give the evidence more weight than it logically deserves.
It was submitted that the absence of subjective detail, the accused’s limited ability to challenge the complainant’s assertions other than by claiming they did not occur, and the significant number of assertions alleged to have been contemporaneously recorded would likely cause the jury to reason that ‘something’ must have happened on those occasions.
Counsel for the accused submitted that the prosecution had not accurately framed the legislation, relevant authorities, and relevant circumstances of this matter in dealing with the risk of unfair prejudice to the accused in this matter. It was submitted that the newly inserted s 97A of the Evidence Act still requires a Court to be satisfied that tendency evidence has “significant probative value”. Counsel also submitted that despite the decision in R v Bauer, the legislature has not yet said anything about the circumstance which exists in “a single complainant sexual offence case” where the source of the evidence is the complainant alone and the sole issue at trial is the complainant’s credit or veracity. It was submitted that the presumptions set out in s 97A(2) of the Evidence Act did not make a difference to the accused’s submissions.
Section 101 of the Evidence Act
Counsel submitted that if the Court was satisfied that the proposed tendency evidence possesses significant probative value, the probative value of the tendency evidence did not outweigh the prejudicial effect it may have on him and should be excluded pursuant to s 101(2) of the Evidence Act. It was noted that the accused would be prejudiced by the need to meet the allegations forming the counts on the indictment, as well as the allegations forming the uncharged acts. Counsel submitted that acceptance by the jury of one uncharged act would likely have a disproportionate effect upon the jury’s consideration of the evidence of the complainant on each count.
Sections 135 and 137 of the Evidence Act
Counsel referred to s 135 of the Evidence Act and submitted that the Court should utilise its discretion in s 135 to refuse to admit the tendency evidence. It was submitted that the evidence would fall under subsections (b) and (c) of s 135, namely that the evidence might “be misleading or confusing” or “cause or result in an undue waste of time”. Counsel submitted that the potential for confusion and unfairness is obvious no matter how precise or careful any jury directions might be. It was submitted that the Court could use its discretion as the accused will be forced to attack each of the uncharged acts.
Counsel also submitted that the tendency evidence should not be admitted because the danger of unfair prejudice outweighs its probative value: s 137 of the Evidence Act. It was submitted that the jury will be invited to reason that, if they accept beyond a reasonable doubt that the accused on some other occasion or occasions acted in a way exhibiting a sexual interest in the complainant and a willingness to act on that attraction, then her evidence in relation to each of the charged acts must be more reliable both because they believe her to the required standard in relation to the uncharged act and that the accused would be likely to act in that way. It was submitted that the nature of the tendency evidence is near impossible to meet, contradict or devalue in an objective manner.
Consideration
The state of the law concerning the admissibility of tendency evidence in this jurisdiction has changed following the commencement of the Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT) (Royal Commission Criminal Justice Act) on 1 September 2020. Prior to the commencement of the Royal Commission Criminal Justice Act, tendency evidence that the prosecution sought to adduce about an accused could only be used in a proceeding if:
(a) The evidence was relevant evidence within the meaning of s 55 of the Evidence Act;
(b) Reasonable notice was given to the accused by the prosecution of its intent to present the tendency evidence: s 97(1)(a) Evidence Act or the Court dispenses with the notice requirement: s 100 Evidence Act;
(c) The evidence, either by itself or in conjunction with other evidence to be presented by the prosecution, met the threshold of “significant probative value”: s 97(1)(b) Evidence Act; and
(d) The probative value of the evidence substantially outweighed any prejudicial effect it may have on the accused: s 101(2) Evidence Act.
The previous iteration of s 101 of the Evidence Act read as follows:
101Further restrictions on tendency evidence and coincidence evidence presented by prosecution
(1)This section applies only in a criminal proceeding and applies in addition to section 97 (The tendency rule) and section 98 (The coincidence rule).
(2)Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
(3)This section does not apply to tendency evidence that the prosecution presents to explain or contradict tendency evidence presented by the defendant.
(4)This section does not apply to coincidence evidence that the prosecution presents to explain or contradict coincidence evidence presented by the defendant.
In R v Bauer at [73], the High Court observed:
Despite textual differences between the expressions “prejudicial effect” in s 101, “unfairly prejudicial” in s 135 and “unfair prejudice” in s 137, each conveys essentially the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way.
While the High Court held that “prejudicial effect”, “unfairly prejudicial” and “unfair prejudice” are synonymous, it is understood that the mandatory language in the previous s 101(2) differs from the discretion founded in ss 135 and 137. Section 101(2) requires the Court to conduct a balancing exercise and make a judgment, as opposed to exercising a discretion: R v Blick [2000] NSWCCA 61; 111 A Crim R 326 at [20], R v Ellis [2003] NSWCCA 319; 58 NSWLR 800 at [95]. Further, in R v Bauer at [82] the High Court observed that this version of s 101(2) was a more stringent test than s 137 and if the evidence satisfied s 101(2), it would not be excluded pursuant to ss 135 and 137. Therefore, the analysis would end after consideration of s 101(2) of the Evidence Act.
The primary amendments of the Royal Commission Criminal Justice Act are as follows:
(a) First, subsections (4) and (5) were inserted into the existing s 94, which deals with the application of pt 3.6 of the Evidence Act. Subsection (4) establishes in statute that any principle or rule of common law or equity that prevents or restricts the admissibility of evidence about propensity or similar fact evidence is not relevant when applying pt 3.6 to tendency or coincidence evidence about an accused. Subsection (5) states that the Court cannot have regard to the possibility that the evidence may be the result of collusion, concoction or contamination when determining the probative value of tendency evidence or coincidence evidence for ss 97(1)(b), 97A(4), 98(1)(b) or 101(2).
(b) Second, a new s 97A was enacted into the Evidence Act. Section 97A only has application in proceedings which the commission by the accused of an act that constitutes, or may constitute, a child sexual offence is a fact in issue. Section 97A(2) creates a statutory presumption that certain tendency evidence is presumed to have significant probative value for consideration of ss 97(1)(b) and 101(2) of the Evidence Act.
(c) Third, subsection (1A) was inserted into s 98, the coincidence rule of the Evidence Act.
(d) Third, the wording of s 101(2) of the Evidence Act was reworded and the word “substantially” was removed. The test in s 101(2) now requires the Court to determine whether the probative value of the tendency evidence outweighs the danger of unfair prejudice. It is noted that the revised threshold of s 101(2) applies to all proceedings in which the prosecution seeks to adduce tendency or coincidence evidence about an accused in a proceeding against the accused, regardless of whether it is a child sexual offence proceeding: see for example R v Amato [2021] ACTSC 155 at [110].
I note the principles concerning statutory construction that have previously been discussed in Director of Public Prosecutions (ACT) v Graham [2018] ACTCA 23; 13 ACTLR 280 at [25]-[28]. See also: R v QX (No 2) [2021] ACTSC 244 at [35]-[36]; Will v The Queen(No 2) [2021] ACTCA 14; 16 ACTLR 50 at [116]-[125].
At this juncture I observe that the Royal Commission Criminal Justice Act did not disturb the wording of s 97 of the Evidence Act. Before determining the application at hand pursuant to the new provisions, it is instructive to consider the new tendency provisions in the context of their evolution with regard to single complainant child sexual offence proceedings.
Legislative and case history
Propensity Evidence and the Introduction of the Uniform Evidence Law
In 1985, the Australian Law Reform Commission, Evidence (Interim), Report 26 (ALRC 26) suggested the introduction of a statutory uniform evidence law to provide a modernised and structured approach to the laws of evidence in Australia. The ARLC 26 grappled with whether propensity reasoning (the former description of tendency evidence) should be permitted under a uniform evidence statute, as it had a convoluted history in common law. Pfennig v The Queen (1995) 182 CLR 461 (Pfennig v The Queen) set out the admissibility of propensity evidence at common law: see also Hoch v The Queen (1988) 165 CLR 292. At 481-483 of Pfennig v The Queen, Mason CJ, Deane and Dawson JJ observed:
…For propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged.
…
Where propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged.
…
… the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilty where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused. Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character of 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.
On 13 April 2011, the Evidence Act commenced operation in the ACT, thereby implementing the model uniform evidence law into the territory. The admissibility of tendency evidence required consideration of ss 55, 97 and 101 of the Evidence Act.
IMM v The Queen
IMM v The Queen concerned a single complainant child sexual offence appeal. IMM was charged with one count of having sexual intercourse with a child under 16 and two counts of indecent dealing with a child. The complainant was IMM’s step-granddaughter. The complainant’s evidence was the only direct evidence of the commission of the offences. Over objection, the trial judge permitted the prosecution to adduce tendency evidence at the trial that while the complainant and another girl were giving IMM a back massage, he ran his hand up the complainant’s leg. The appeal was allowed and a new trial was ordered.
French CJ, Kiefel, Bell and Keane JJ (the plurality) made the following observations about significant probative value for the purpose of s 97(1)(b) of the Evidence Act in the context of a single complainant child sexual offence proceeding at [61]-[64]:
It may be accepted for present purposes that the evidence was relevant as it was capable of showing that the appellant had a sexual interest in the complainant, as the trial judge ruled. This is not put in issue by the appellant. But s 97(1)(b) requires more. It requires that the evidence have significant probative value.
In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant's account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant's unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant's account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant's evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.
Evidence from a complainant adduced to show an accused's sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant's account of the charged offences is true. It is difficult to see that one might reason rationally to conclude that X's account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her.
For these reasons the tendency evidence given by the complainant did not qualify as having significant probative value and was not admissible under s 97(1)(b).
The plurality also discussed the meaning of “significant” probative value within the meaning of s 97(1)(b) at [46]:
Cross on Evidence suggests that a "significant" probative value is a probative value which is "important" or "of consequence". The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding.
(footnote omitted)
Hughes v The Queen
Hughes v The Queen was a multiple complainant child sexual offence appeal. The appellant was charged with 11 counts of sexual offences against five female children who were aged between six and 15 years at the date of the offending. The acts charged and the circumstances of their commission varied. Prior to the trial, the prosecution gave notice to the appellant of its intention to adduce tendency evidence about the appellant. The tendencies were particularised as the appellant’s tendency to act in a particular way and have a particular state of mind, including having a sexual interest in female children under 16 and using his social and familial relationships and work environments to obtain access to engage in sexual activities. The trial judge ruled the evidence of each complainant was cross-admissible as tendency evidence as against each other complainant, as well as ruling that six tendency witnesses could give evidence in the trial. The appellant was convicted on 10 of the 11 counts on the indictment. At [2] Kiefel CJ, Bell, Keane and Edelman JJ summarised the issue on appeal as follows:
The issue reduces in this case to the question of whether proof that a man of mature years has a sexual interest in female children aged under 16 years (“underage girls”) and a tendency to act on that interest by engaging in sexual activity with underage girls opportunistically, notwithstanding the risk of detection, is capable of having significant probative value on his trial for a sexual offence involving an underage girl.
Although Hughes v The Queen concerned a multiple complainant child sexual offence proceeding, Kiefel CJ, Bell, Keane and Edelman JJ set out the general test for determining whether tendency evidence has “significant” probative value” at [41]:
The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
The majority of Kiefel CJ, Bell, Keane and Edelman JJ dismissed the appeal in holding that it is not necessary for there to be “underlying unity” in events for them to be capable of having significant probative value at [57]. Gageler, Nettle and Gordon JJ each wrote separate dissenting judgments.
The Royal Commission into Institutional Responses to Child Sexual Abuse
In the Royal Commission into Institutional Responses to Child Sexual Abuse (Criminal Justice Report, August 2017) (Royal Commission Report), the Royal Commission observed at Part VI, 411:
We are satisfied that current approaches are causing unjust outcomes in the form of unjustified acquittals in institutional child sexual abuse prosecutions. We are satisfied that the current law should change so that it facilitates greater cross-admissibility of evidence and more joint trials in child sexual abuse matters. We are also satisfied that the concerns held by some judges and lawyers that reform will lead to unfair prejudice to those accused of child sexual abuse offences and wrongful convictions are misplaced.
As part of its considerations, the Royal Commission commissioned detailed Jury Reasoning Research about tendency and coincidence evidence and unfair prejudice it may cause to an accused. At 462, the Royal Commission Report summarised the key findings of the Jury Reasoning Research:
The key outcome of the Jury Reasoning Research was that the researchers found no evidence of unfair prejudice to the accused. The Jury Reasoning Research’s general conclusions about unfair prejudice in joint trials are as follows:
Although the expectation was that more complex trials with tendency evidence would result in more unfair prejudice to the defendant, we found more evidence of impermissible reasoning in the basic separate trial and in the relationship evidence trial than in the more complex trials. For example, in the separate trials, juries were more likely to believe that there was an onus on the defendant to prove his innocence.
This finding is a crucial outcome of this study. Overall, the results show that it is unlikely that a defendant will be unfairly prejudiced in the form of impermissible reasoning as a consequence of joinder of counts or the admission of tendency evidence. Given the low probability, we found there is negligible risk to the defendant of a conviction based on reasoning logically unrelated to the evidence.
At this point it is appropriate to acknowledge that the methodology of the Jury Reasoning Research has been subject to academic critique: see Peter Robinson, ‘Joint Trials and Prejudice: A Review and Critique of the Report to the Royal Commission into Institutional Child Sex Abuse’ (2017) 43(3) Monash University Law Review 723.
The Royal Commission summarised the existing state surrounding tendency and coincidence evidence at 591:
Fundamentally, we consider that the law in this area has become unnecessarily complicated and unfairly protective of the accused. The common law and various statutory provisions have developed to exclude relevant evidence, and the tests for admissibility have developed in ways that give the accused unwarranted protection against the possibility of conviction, resulting in injustice to complainants and the community.
The Royal Commission made the following recommendations in respect of reform for tendency and coincidence provisions:
· Recommendation 44: In order to ensure justice for complainants and the community, the laws governing the admissibility of tendency and coincidence evidence in prosecutions for child sexual abuse offences should be reformed to facilitate greater admissibility and cross-admissibility of tendency and coincidence evidence and joint trials.
· Recommendation 45: Tendency or coincidence evidence about a defendant in a child sexual offence prosecution should be admissible:
(a) If the court thinks that the evidence will, either by itself or having regard to the other evidence, be ‘relevant to an important evidentiary issue’ in the proceeding, with each of the following kinds of evidence defined to be ‘relevant to an important evidentiary issue’ in a child sexual offence proceeding:
i. Evidence that shows a propensity of the defendant to commit particular kinds of offences if the commission of an offence of the same or a similar kind is in issue in the proceeding.
ii. Evidence that is relevant to any matter in issue in the proceeding if the matter concerns an act or state of mind of the defendant and is important in the context of the proceeding as a whole.
(b) Unless, on the application of the defendant, the court thinks, having regard to the particular circumstances of the proceeding, that both:
i. Admission of the evidence is more likely than not to result in the proceeding being unfair to the defendant.
ii. If there is a jury, the giving of appropriate directions to the jury about the relevance and use of the evidence will not remove the risk.
· Recommendation 46: Common law principles or rules that restrict the admission of propensity or similar fact evidence should be explicitly abolished or excluded in relation to the admissibility of tendency or coincidence evidence about the defendant in a child sexual offence prosecution.
· Recommendation 47: Issues of concoction, collusion or contamination should not affect the admissibility of tendency or coincidence evidence about the defendant in a child sexual offence prosecution. The court should determine admissibility on the assumption that the evidence will be accepted as credible and reliable, and the impact of any evidence of concoction, collusion or contamination should be left to the jury or other fact-finder.
· Recommendation 48: Tendency or coincidence about a defendant in a child sexual offence prosecution should not be required to be proved beyond reasonable doubt.
· Recommendation 49: Evidence of:
(a) The defendant’s prior convictions
(b) Acts for which the defendant has been charged but not convicted (other than acts for which the defendant has been acquitted) should be admissible as tendency or coincidence evidence if it otherwise satisfies the test for admissibility of tendency or coincidence evidence about a defendant in a child sexual offence prosecution.
· Recommendation 50: Australian governments should introduce legislation to make the reforms we recommended to the rules governing the admissibility of tendency and coincidence evidence.
The Royal Commission issued a public consultation draft of its Evidence (Tendency and Coincidence) Model Provisions (Royal Commission Model Provisions). The Royal Commission Model Provisions contained two schedules of alternative model amendments to the uniform evidence law for the Australian jurisdictions that have adopted a uniform evidence act.
The two alternative Royal Commission Model Provisions are contained within Annexure A to this judgment. The Royal Commission Model Provisions were met with criticism by the academic sphere as well as the legal profession: see for example Jill Hunter and Richard Kemp, ‘Proposed Changes to the Tendency Rule: A Note of Caution’ (2017) 41 Criminal Law Journal 253. It is suffice to note at this juncture that the amendments as enacted by the Royal Commission Criminal Justice Act greatly differ from the Royal Commission Model Provisions.
R v Bauer
After the release of the Royal Commission Report, the High Court then dealt with a further single complainant child sexual offence appeal and delivered a unanimous decision in R v Bauer. The matter concerned sexual offences alleged to have been committed by Mr Bauer on his foster daughter, RC. There were 18 counts on the indictment, which included but was not limited to indecent assaults and sexual penetration of a child under 16. The relevant tendency was particularised as the respondent having a sexual interest in RC and a willingness to act upon it. The tendency evidence was the cross-admissibility of the 18 counts, evidence of RC concerning uncharged acts, and evidence of TB, RC’s sister, of the act compromising a count on the indictment and of witnessing a further uncharged act. At [48]-[51] the Court stated:
Henceforth, it should be understood that a complainant’s evidence of an accused’s uncharged acts in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM or exhibit a special, particular or unusual feature of the kind described in Hughes.
As the trial judge in substance observed, it has long been the law that a complainant's evidence of charged and uncharged sexual acts may be of significant probative value in the proof of other charged sexual acts. Taken in combination with other evidence, it may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it which assists to eliminate doubts that might otherwise attend the complainant's evidence of the charged acts…
Since proof of an accused's commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, at least where the two are not too far separated in point of time, where an accused is charged with a number of counts of generally similar sexual offences against a single complainant the several counts may ordinarily be joined in a single indictment and so tried together. In such cases, evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act.
The juridical basis of cross-admissibility of evidence of charged acts and of the admissibility of evidence of uncharged acts in such cases rests on the "very high probative value" of that kind of evidence which results from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person.
(citations omitted)
The High Court also addressed the majority decision in IMM v The Queen at [53]:
In IMM, a majority of this Court held that a complainant's evidence of a sole uncharged sexual act did not have significant probative value. Their Honours reasoned that, because the principal issue in that case was the complainant's credibility, the complainant's evidence of the uncharged act was rationally incapable of adding significantly to the probability that the complainant was telling the truth about the charged acts. The issue arose in a context in which the uncharged act was alleged to have occurred sometime after the charged acts, and was relatively innocuous by comparison. But the plurality also observed, more generally, that a complainant's evidence of an uncharged act can generally have only limited capacity rationally to affect the probability of the complainant's account of the charged acts being true, unless there are some special features of the complainant's account of the uncharged act.
Further at [55], the High Court distinguished IMM v The Queen and confirmed its narrow application:
…strictly speaking the reasoning of the plurality in IMM was limited to the case there under consideration: one which involved an uncharged act relevantly remote in time and of a significantly different order of gravity from the charged offending. IMM may be distinguished from a case like the present, where what is in issue is a course of offending comprised of a succession of uncharged sexual acts, of generally a similar kind to the charged acts, interspersed between the charged acts throughout the alleged period of offending.
The High Court also observed the following in respect of tendency evidence in a multiple complainant child sexual offence proceeding at [58]:
In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.
(citations omitted)
McPhillamy v The Queen
The most recent decision of the High Court addressing tendency evidence in child sexual offence proceedings is McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 (McPhillamy v The Queen). This was a single complainant child sexual offence proceeding that sought to rely on uncharged acts concerning two separate complainants as tendency evidence. McPhillamy v The Queen involved an appeal as to whether the tendency evidence the prosecution was permitted to adduce at the trial possessed significant probative value for the purpose of s 97(1)(b). The appellant was convicted of six sexual offences against “A”, who at the relevant time in 1995-1996 was aged 11 years old and was under the supervision of the appellant.
The relevant tendency evidence was evidence given by “B” and “C” who were both sexually abused by the appellant in 1985 when they were in their early teenage years while attending a Catholic boarding school. The prosecution particularised the relevant tendency as the appellant having a sexual interest in male children in their early teenage years and a preparedness to act on that interest.
While Kiefel CJ, Bell, Keane and Nettle JJ (the plurality) acknowledged that it was not disputed that “a mature man’s sexual interest in young teenage boys” “is an interest of a kind that is likely to be enduring” at [26], the plurality went on to state the following at [27] and [32]:
Proof of the appellant's sexual interest in young teenage boys may meet the basal test of relevance, but it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value. The tendency on which the prosecution relied was to act on the appellant's sexual interest in male children in their early teenage years who were under his supervision. The evidence demonstrating that tendency was confined to "B"'s and "C"'s evidence of events that occurred in 1985. As Meagher JA noted, there was no evidence that the asserted tendency had manifested itself in the decade prior to the commission of the alleged offending against "A".
…
"B"'s and "C"'s evidence established no more than that a decade before the subject events the appellant had sexually offended against each of them. Proof of that offending was not capable of affecting the assessment of the likelihood that the appellant committed the offences against "A" to a significant extent. It rose no higher in effect than to insinuate that, because the appellant had sexually offended against "B" and "C" ten years before, in different circumstances, and without any evidence other than "A"'s allegations that he had offended again, he was the kind of person who was more likely to have committed the offences that "A" alleged. The tendency evidence did not meet the threshold requirement of s 97(1)(b) of the Evidence Act.
Uniform Evidence Law (Tendency and Coincidence) Model Provisions 2019
As a result of the recommendations of the Royal Commission Report, the Council of Attorneys-General agreed to amend pt 3.6 of the Uniform Evidence Legislation and implement a model Bill, known as the Uniform Evidence Law (Tendency and Coincidence) Model Provisions 2019. The Uniform Evidence Law (Tendency and Coincidence) Model Provisions 2019 are contained within Annexure B to this judgment. In brief the model amendments are as follows:
(a) Insertion into s 94 of subsections (4) and (5). Subsection (4) confirms that principles from the common law and equity restricting the admissibility of propensity or similar fact evidence is not relevant when applying pt 3.6 to tendency evidence or coincidence evidence about an accused.
(b) Insertion of s 97A Admissibility of tendency evidence in proceedings involving child sexual offences, after s 97.
(c) Insertion into s 98 of subsection (1A).
(d) Amendment of s 101(2) by omitting the words “the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant” and inserting in its place “the probative value of the evidence outweighs the danger of unfair prejudice to the defendant”.
As noted by Odgers in Uniform Evidence Law (Thomson Reuters, 16th edition, 2021), s 97A of the Uniform Evidence Law (Tendency and Coincidence) Model Provisions 2019 greatly differs from the proposed alternative Royal Commission Model Provisions.
The Uniform Evidence Law (Tendency and Coincidence) Model Provisions 2019 have been enacted in their exact form by NSW in the Evidence Act 1995 (NSW) by the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW) and the Northern Territory in the Evidence (National Uniform Legislation) Act 2011 (NT) by the Evidence (National Uniform Legislation) Amendment Act 2020 (NT). In Uniform Evidence Law (Thomson Reuters, 16th edition, 2021), Odgers notes it is expected that identical amendments will be made in the other Australian jurisdictions that have the uniform evidence law, but the implementation has been delayed due to the COVID-19 crisis.
The Amendments
As noted above at paragraph [31] the Royal Commission Criminal Justice Act amended the Evidence Act by inserting subsections (4) and (5) into s 94, inserting a s 97A, inserting subsection (1A) into s 98, and amending the wording in s 101(2).
Section 97 was not altered by the amendments. This section continues to provide as follows:
97The tendency rule
(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
(2)Subsection (1) (a) does not apply if—
(a)the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or
(b)the evidence is presented to explain or contradict tendency evidence presented by another party.
Section 97A provides as follows:
97AAdmissibility of tendency evidence in proceedings involving child sexual offences
(1)This section applies in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue.
(2)It is presumed that the following tendency evidence about the defendant will have significant probative value for section 97 (1) (b) and section 101 (2):
(a)tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest);
(b)tendency evidence about the defendant acting on a sexual interest the defendant has or had in children.
(3)Subsection (2) applies whether or not the sexual interest or act to which the tendency evidence relates was directed at a complainant in the proceeding, or any other child or children generally.
(4)Despite subsection (2), the court may determine that the tendency evidence does not have significant probative value if it is satisfied that there are sufficient grounds to do so.
(5)The following matters (whether considered individually or in combination) are not to be taken into account when determining whether there are sufficient grounds for subsection (4) unless the court considers there are exceptional circumstances in relation to those matters (whether considered individually or in combination) to warrant taking them into account:
(a)the sexual interest or act to which the tendency evidence relates (the tendency sexual interest or act) is different from the sexual interest or act alleged in the proceeding (the alleged sexual interest or act);
(b)the circumstances in which the tendency sexual interest or act occurred are different from circumstances in which the alleged sexual interest or act occurred;
(c)the personal characteristics of the subject of the tendency sexual interest or act (for example, the subject’s age, sex or gender) are different to those of the subject of the alleged sexual interest or act;
(d)the relationship between the defendant and the subject of the tendency sexual interest or act is different from the relationship between the defendant and the subject of the alleged sexual interest or act;
(e)the period of time between the occurrence of the tendency sexual interest or act and the occurrence of the alleged sexual interest or act;
(f)the tendency sexual interest or act and alleged sexual interest or act do not share distinctive or unusual features;
(g)the level of generality of the tendency to which the tendency evidence relates.
(6)In this section:
child sexual offence—
(a)means each of the following offences (however described and regardless of when it occurred):
(i)an offence against, or arising under, a territory law involving sexual intercourse with, or any other sexual offence against, a person who was a child at the time of the offence;
(ii)an offence against, or arising under, a territory law involving an unlawful sexual act with, or directed towards, a person who was a child at the time of the offence;
(iii)an offence against, or arising under, a law of the Commonwealth, a State or a foreign country that, if committed in the Territory, would have been an offence of a kind mentioned in subparagraph (i) or (ii); but
NoteState includes the Northern Territory (see Legislation Act, dict, pt 1).
(b)does not include conduct of a person that has ceased to be an offence since the time when the person engaged in the conduct.
The revised s 101 states:
101Further restrictions on tendency evidence and coincidence evidence presented by prosecution
(1)This section applies only in a criminal proceeding and applies in addition to section 97 (The tendency rule) and section 98 (The coincidence rule).
(2)Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.
(3)This section does not apply to tendency evidence that the prosecution presents to explain or contradict tendency evidence presented by the defendant.
(4)This section does not apply to coincidence evidence that the prosecution presents to explain or contradict coincidence evidence presented by the defendant.
When presenting the Royal Commission Criminal Justice Legislation Amendment Bill 2019 (ACT), the then Attorney-General Gordon Ramsay observed:
This bill also introduces amendments to tendency and coincidence evidence provisions in the Evidence Act, which align with a model bill developed by a Council of Attorneys-General working group.
That was done in consultation with stakeholders across the nation and agreed to by the Council of Attorneys-General in December last year. The royal commission was satisfied that tendency and coincidence evidence admissibility laws need to be changed to facilitate more admissibility and cross-admissibility of that kind of evidence in child sexual abuse trials. The commission noted that “courts have assumed for many years that tendency and coincidence evidence is likely to be highly prejudicial—that is, very unfair to the accused. They have assumed that juries will place too much weight on this evidence, assuming that the accused must be guilty because he is the sort of person who commits that offence.”
However, several considerations led the commission to conclude that those assumptions are wrong. This included the 2016 jury reasoning research conducted by experts, which showed that juries treat tendency and coincidence evidence carefully, and not in a way that unfairly prejudices the accused. In many respects, the amendments made by this bill codify existing common law about this type of evidence. They also incorporate the royal commission’s findings and they reflect the nature of their recommendations in respect of tendency and coincidence evidence, enabling appropriate admissibility of this kind of evidence in child sexual abuse proceedings while ensuring the accused’s right to a fair trial remains protected.
As referred to above at paragraph [58], NSW introduced amendments in line with the Uniform Evidence Law (Tendency and Coincidence) Model Provisions 2019. Section 97A in NSW only differs to the ACT provision by including a definition of “child” in subsection 6 of the provision. When presenting the Evidence Amendment (Tendency and Coincidence) Bill 2020 (NSW), the NSW Attorney-General made the following observations about the admissibility of tendency and coincidence evidence prior to the amendments:
The bill will facilitate greater admissibility of these types of evidence with a particular focus on greater admissibility of tendency evidence in criminal proceedings for child sexual offences. The bill represents the New South Wales Government's response to recommendations 44 to 51 of the criminal justice report of the Royal Commission into Institutional Responses to Child Sexual Abuse.
…
The royal commission noted that child sexual offences are "generally committed in private and with no eyewitnesses [and] no medical or scientific evidence capable of confirming the abuse". The royal commission also noted:
Where the only evidence of child sexual abuse is the complainant's evidence, it can be difficult for the jury to be satisfied beyond reasonable doubt that the alleged offence occurred. The jury is effectively considering a "word against word" case.
In these cases, evidence of other allegations—or convictions—of child sexual abuse perpetrated by the accused person can be valuable evidence to assist the trier of fact to determine whether it is more likely that the alleged offence or offences occurred, as the allegation is supported by evidence from other complainants or witnesses who say that the accused also sexually abused them. This evidence can also provide crucial support for the complainant's credibility or reliability.
…
Where this kind of evidence is excluded, the trier of fact may be denied relevant evidence that would assist them to properly consider the facts in issue in the case and the complainant's evidence, which, as noted by the High Court majority in Hughes, is likely to be challenged. Given its importance and relevance to child sexual abuse prosecutions, the royal commission closely considered the test for admissibility of tendency and coincidence evidence. Firstly, the royal commission found that the risk of unfair prejudice to the accused arising from tendency and coincidence evidence has been overstated and that, in fact, this risk is minimal. Secondly, the existing test for admissibility of tendency and coincidence evidence unnecessarily precludes evidence from being admitted in criminal proceedings. Thirdly, the application of the rules to exclude tendency and coincidence evidence unnecessarily prevents joint trials being held.
(emphasis added)
The NSW Attorney-General also addressed the difference between the Royal Commissions Model Provisions and the Uniform Evidence Law (Tendency and Coincidence) Model Provisions 2019:
The Government accepted recommendation 44 in principle and noted that the more detailed recommendations were subject to further consideration.
A substantive response to those recommendations was not provided at that time as the recommendations sought to change uniform legislation, which the Government considered should remain consistent across the six participating Australian UEL jurisdictions, if possible. Further, legal stakeholders in New South Wales expressed strong concerns about the royal commission's specific recommendations in relation to tendency and coincidence evidence and were critical of the proposed legislative reform. These concerns required close consideration, particularly insofar as they related to the potential risk of unfair prejudice to an accused arising from reforms to facilitate the greater admissibility of tendency and coincidence evidence in criminal proceedings.
…
In December 2017 the Council of Attorneys-General agreed to refer the test for the admissibility of tendency and coincidence evidence in the UEL to a New South Wales led working group with representatives from all UEL jurisdictions and observers from non‑UEL jurisdictions. That working group, in consultation with legal and academic stakeholders from New South Wales and other UEL jurisdictions, developed an approach to reform that was agreed by the UEL members of the Council of Attorneys-General in June 2019. At the request of the Council of Attorneys-General, a model bill to implement the reform was prepared by the Australasian Parliamentary Counsel's Committee. The model bill was agreed by all UEL members of the Council of Attorneys-General in November 2019.
…
I anticipate that comparable bills will be introduced in Victoria, Tasmania, the Australian Capital Territory, the Northern Territory and the Commonwealth. This coordinated response will ensure that evidence law in these jurisdictions remains uniform, as agreed, and that the objectives of the royal commission in relation to its tendency and coincidence evidence recommendations are achieved in all participating jurisdictions.
(emphasis added)
When speaking to the interaction between ss 97 and 97A, the NSW Attorney-General stated:
Broadly speaking, the bill will not change the first limb of the test, but it introduces a new provision that will interact with the first limb of the test for tendency evidence in child sexual abuse proceedings. It will amend the second limb of the test for all tendency and coincidence evidence adduced by the prosecution in criminal proceedings. The purpose of both of these changes is to facilitate greater admissibility of tendency and coincidence evidence. As to the first limb of the test, UEL jurisdictions agreed that the requirement that the evidence will have "significant probative value" in New South Wales, contained in section 97 (1) (b) of the Evidence Act 1995, which applies in civil and criminal proceedings, is appropriate and should be retained as is. However, given the issues identified with the interpretation and application of this first limb, which I have already outlined, the Council of Attorneys-General determined that a new provision should be inserted to guide courts in the determination of significant probative value in proceedings that involve child sexual offences.
Item 1 [2] introduces new section 97A, which will alter the operation of the first limb in relation to tendency evidence in child sexual abuse prosecutions in order to facilitate greater admissibility of tendency evidence in those proceedings. Proposed section 97A will apply only in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue. It will provide that, in those proceedings, tendency evidence about the defendant's sexual interest in a child or children or about the defendant acting on a sexual interest in a child or children is presumed to have significant probative value.
…
The introduction of a presumption that such evidence will have significant probative value aligns with the royal commission's views that "tendency and coincidence evidence will often be highly relevant in relation to child sexual abuse offences", "the probative value of tendency and coincidence evidence generally has been understated ...", and "a test of 'significant probative value' should not often exclude such evidence".
Harm to a child will always engender strong feelings. That alone is not a bar in the many trials of sexual abuse where tendency evidence is admitted. The directions of a trial judge, as were given by her Honour in this case, can remove that risk of prejudice. Evidence of a tendency is not prejudicial simply because it tends to prove the commission of the offence which is charged. That constitutes, subject to proper directions, an appropriate use of the evidence, not its misuse. Nor is it prejudicial for a jury to reason that if the accused has demonstrated the alleged tendency, he or she is more likely to have committed the offence alleged. On the contrary, this is the very reasoning that underpins tendency evidence and the very basis upon which it is admitted.
I am satisfied that in this matter, directions to the jury are capable of addressing any unfair prejudice to the accused. I am satisfied that the probative value of the tendency evidence outweighs the danger of unfair prejudice to the accused. Section 101(2) does not operate in this matter to prevent the prosecution from presenting the tendency evidence.
Is the probative value of the evidence substantially outweighed by the danger that the evidence might (b) be misleading or confusing or (c) cause or result in undue waste of time? Section 135
Is the probative value of the evidence outweighed by the danger of unfair prejudice to the accused? Section 137
I note that in R v Brookman, Abadee DCJ did not go on to consider ss 135 and 137 of the NSW Evidence Act when determining a tendency application under the new provisions. However, as noted by the NSW Attorney-General when presenting the amendments to the NSW law, the new provisions do not displace “the general discretions and mandatory exclusions that apply to evidence”, in reference to ss 135 and 137. It is appropriate therefore to deal with ss 135 and 137 in this context.
Section 135 of the Evidence Act provides:
135General discretion to exclude evidence
The 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
(b)be misleading or confusing; or
(c)cause or result in undue waste of time.
Section 137 of the Evidence Act provides:
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
In Uniform Evidence Law in Australia (3rd edition, LexisNexis) it was noted that the previous iteration of s 101(2) was more stringent than the mandatory discretion in s 137 and the authors state “logically, there [was] no room for the operation of the exclusionary rule in s 137 or the s 135(a) unfair prejudice exclusionary discretion”.
As noted by Odgers in Uniform Evidence Law (Thomson Reuters, 16th edition, 2021) in respect of the amendment to s 101(2):
It is clear that, if tendency/ coincidence evidence is admitted under this provision, there would be no basis to exclude it under s 137. Evidence that is not rendered inadmissible pursuant to s 101(2) would not be rendered inadmissible pursuant to s 137…
Nevertheless, as counsel for the accused raised both ss 135(b) and (c) and 137 in submissions, it is appropriate in this matter to address the admissibility of the tendency evidence having regard to these provisions.
Counsel for the accused referenced the danger that the tendency evidence might “be misleading or confusing” or “cause or result in an undue waste of time” due to the “domino effect” that would ensue if the tendency evidence was admitted. As referenced above, the tendency evidence in this matter has significant probative value. I find that the probative value outweighs the danger that the evidence might be misleading or confusing within the meaning of s 135(b) as I have noted above that the tendency evidence in this particular matter is unlikely to be confusing due to it involving the same complainant and being in the same time frame as the charged acts on the indictment. The Court will not use its discretion in s 135(b) to exclude the tendency evidence.
In respect of “cause or result in an undue waste of time”, Odgers notes that “the provision is designed to ensure that exclusion on this basis only occurs in extreme circumstances”. Counsel for the accused has failed to particularise why adducing the tendency evidence could or would result in an undue waste of time. The Court will not use its discretion in s 135(c) to exclude the tendency evidence.
In respect of s 137 of the Evidence Act, I am satisfied in this matter that the tendency evidence has significant probative value. I am satisfied that the danger of unfair prejudice is minimal in this matter as it involves the same complainant and the uncharged acts occurred in the same time period as the charged acts and consist of similar sexual offending. I am satisfied that the probative value of the tendency evidence to be presented by the prosecution is not outweighed by the danger of unfair prejudice to the accused. The operation of the mandatory exclusion in s 137 does not arise in this matter.
Therefore, the tendency evidence is admissible in the trial of the accused.
Orders
I make the following orders:
(a) The prosecution is permitted to lead tendency evidence as particularised as Incidents 1 to 24 in the Amended Notice of Intention to Adduce Tendency Evidence dated 13 August 2021.
(b) Counts 1 to 11 and 13 to 21 on the indictment are cross-admissible as tendency evidence.
| I certify that the preceding one hundred and six [106] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Rhiannon McGlinn Date: 10 November 2021 |
Annexure A: Royal Commission Model Provisions – Public Consultation Draft – Evidence (Tendency and Coincidence) Model Provisions
Name of model provisions
These model provisions are the Evidence (Tendency and Coincidence) Model
Provisions.Purpose of model provisions
(1) The purpose of these provisions is to set out model amendments to the Uniform
Evidence Law for public consultation that will permit tendency evidence or
coincidence evidence to be admitted in a proceeding (including a criminal
proceeding) if it is relevant to an important evidentiary issue in the proceeding.
(2) In these provisions, the Uniform Evidence Law is the set of provisions that forms the
basis for the Uniform Evidence Acts enacted by the Commonwealth and certain other
Australian jurisdictions.
Note. As at November 2016, each of the following Acts is based on the Uniform Evidence Law:
(a) the Evidence Act 2011 of the Australian Capital Territory,
(b) the Evidence Act 1995 of the Commonwealth,
(c) the Evidence Act 1995 of New South Wales,
(d) the Evidence (National Uniform Legislation) Act of the Northern Territory,
(e) the Evidence Act 2001 of Tasmania,
(f) the Evidence Act 2008 of Victoria.
These Acts have uniform numbering. Accordingly, amendments set out in these provisions are by reference to that numbering.
(3) It is also intended that the model amendments to the Uniform Evidence Law be used
as the basis for new laws in those jurisdictions that do not apply the Law.
Note. As at November 2016, Queensland, South Australia and Western Australia have not
applied the Uniform Evidence Law.
Model amendments to Uniform Evidence Law
(1) Schedules 1 and 2 set out alternative model amendments to the Uniform Evidence
Law.
(2) Schedule 1 sets out model amendments that retain the current distinction between
tendency evidence and coincidence evidence.
(3) Schedule 2 sets out model amendments that replace the current distinction between
tendency evidence and coincidence evidence with a single concept of propensity
evidence.
Schedule 1 Alternative 1 model amendments to Uniform
Evidence Law
Section 92 Exceptions
Insert after section 92 (2):(2A) In a civil or criminal proceeding (and without limiting subsection (2)), section
91 (1) does not prevent the admission or use of a party’s conviction for an
offence as tendency evidence or coincidence evidence.
Section 94 Application
Insert after section 94 (3):(4) To avoid doubt, any principle or rule of the common law or equity that
prevents or restricts the admission of evidence about propensity or similar fact
evidence in a proceeding on the basis of its inherent unfairness or unreliability
is abolished and, as a result, is not relevant when applying this Part to tendency
evidence or coincidence evidence.
(5) Without limiting subsection (4), evidence is not inadmissible as tendency
evidence or coincidence evidence only because it is about:(a) the conviction before or by an Australian court or a foreign court of a
party charged with an offence, or
(b) an act for which a party has been charged with an offence in Australia
or a foreign country, but not convicted (including because of an
acquittal before or by an Australian court or a foreign court).Note. Paragraph (b) includes situations where charges are withdrawn or an offence
has been proven and no conviction entered by the court.
[3] Section 95A
Insert after section 95:
95A Evidence relevant to important evidentiary issue
(1) For the purposes of this Part, each of the following kinds of evidence is
relevant to an important evidentiary issue in a proceeding:
(a) evidence that shows a propensity of a party to be untruthful if the party’s
truthfulness is in issue in the proceeding,
(b) evidence that shows a propensity of a party to commit particular kinds
of offences if the commission of an offence of the same or a similar kind
is in issue in the proceeding,
(c) evidence that could be relevant to any matter in issue in the proceeding
if the matter is important in the context of the proceeding as a whole.
(2) In determining whether evidence is relevant to an important evidentiary issue
in a proceeding, the court is to consider whether the evidence, assuming it was
accepted as credible and reliable, would be evidence of a kind referred to in
subsection (1).
[4] Sections 97–98A
Omit sections 97 and 98. Insert instead:
The tendency rule
(1) This section applies to the admissibility of evidence (tendency evidence) of
the character, reputation or conduct of a person, or a tendency that a person has or had, to prove that the person has or had a tendency (whether because of the
person’s character or otherwise) either to act in a particular way or have a
particular state of mind.
(2) Tendency evidence is inadmissible 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, be relevant to an important evidentiary issue in the
proceeding.
Note. Section 98A enables a court to refuse to admit tendency evidence in a criminal
proceeding on the application of the defendant if the court thinks, having regard to the
particular circumstances of the proceeding, that admission of the evidence is likely to
result in the proceeding being unfair to the defendant.(3) Subsection (2) (a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the
court under section 100, or
(b) the evidence is adduced to explain or contradict tendency evidence
adduced by another party.
Note. The tendency rule is subject to specific exceptions concerning character of and
expert opinion about accused persons (sections 110 and 111). Other provisions of this
Act, or of other laws, may operate as further exceptions.The coincidence rule
(1) This section applies to the admissibility of evidence (coincidence evidence) of
the occurrence of 2 or more events to prove that a person did a particular act,
or had a particular state of mind, because of similarities in the events or the
circumstances in which they occurred (or both).
(2) Coincidence evidence is inadmissible 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, be relevant to an important evidentiary issue in the
proceeding.
Note. Section 98A enables a court to refuse to admit coincidence evidence in a criminal
proceeding on the application of the defendant if the court thinks, having regard to the
particular circumstances of the proceeding, that admission of the evidence is likely toresult in the proceeding being unfair to the defendant.
(3) Subsection (2) (a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the
court under section 100, or
(b) the evidence is adduced to explain or contradict coincidence evidence
adduced by another party.
Note. Other provisions of this Act, or of other laws, may operate as exceptions to thecoincidence rule.
98A Additional provisions for tendency evidence or coincidence evidence in
criminal proceeding
(1) Despite sections 97 and 98, the court in a criminal proceeding may, on the
application of a defendant, refuse to admit tendency evidence or coincidence
evidence if the court thinks, having regard to the particular circumstances of
the proceeding, that:(a) admission of the evidence is likely to result in the proceeding being
unfair to the defendant, and
(b) if there is a jury, the giving of appropriate directions to the jury about
the relevance and use of the evidence is unlikely to remove the risk.
(2) The admission of evidence is not unfair to a defendant in a criminal proceeding
merely because it is tendency evidence or coincidence evidence.Note. See also section 94 (4) and (5).
(3) If directions about the relevance and use of tendency evidence or coincidence
evidence are likely to remove the risk of unfairness of the kind referred to
subsection (1) (b), the court must give those directions rather than refuse to
admit the evidence.
[5] Section 101
Omit the section. Insert instead:
Exclusion of tendency evidence or coincidence evidence under section 135 or
137
Tendency evidence or coincidence evidence about a party that is admissible
under this Part cannot be excluded under section 135 or 137 on the ground that
it is unfairly prejudicial to the party.
[6] Dictionary
Omit “section 98 (1)” from the definition of coincidence rule.
Insert instead “section 98 (2)”.
[7] Dictionary, definition of “tendency rule”
Omit “section 97 (1)”. Insert instead “section 97 (2)”.
Schedule 2 Alternative 2 model amendments to Uniform
Evidence Law
[1] Chapter 3 Admissibility of evidence
Omit the matter relating to Part 3.6 from the introductory note (except the diagram).
Insert instead:
Part 3.6 is about exclusion of evidence of propensity, and exceptions to the
propensity rule.
[2] Chapter 3, introductory note
Omit “tendency rule” from the matter relating Part 3.8 (except the diagram).
Insert instead “propensity rule”.
[3] Chapter 3, introductory note, diagram
Omit “Does the tendency rule or the coincidence rule apply?”.
Insert instead “Does the propensity rule apply?”.
[4] Section 92 Exceptions
Insert after section 92 (2):
(2A) In a civil or criminal proceeding (and without limiting subsection (2)), section
91 (1) does not prevent the admission or use of a party’s conviction for an
offence as propensity evidence.
[5] Part 3.6
Omit the Part. Insert instead:
Part 3.6 Propensity
Application
(1) This Part does not apply to evidence that relates only to the credibility of a
witness.
(2) This Part does not apply so far as a proceeding relates to bail or sentencing.
(3) This Part does not apply to evidence of:(a) the character, reputation or conduct of a person, or
(b) a tendency that a person has or had,if that character, reputation, conduct or tendency is a fact in issue.
(4) To avoid doubt, any principle or rule of the common law or equity that
prevents or restricts the admission of evidence about propensity or similar fact
evidence in a proceeding on the basis of its inherent unfairness or unreliability
is abolished and, as a result, is not relevant when applying this Part to
propensity evidence.
(5) Without limiting subsection (4), evidence is not inadmissible as propensity
evidence only because it is about:(a) the conviction before or by an Australian court or a foreign court of a
party charged with an offence, or
(b) an act for which a party has been charged with an offence in Australia
or a foreign country, but not convicted (including because of an
acquittal before or by an Australian court or a foreign court).
Note. Paragraph (b) includes situations where charges are withdrawn or an offence
has been proven and no conviction entered by the court.
Use of evidence for other purposes
(1) Evidence that under this Part is not admissible to prove a particular matter
must not be used to prove that matter even if it is relevant for another purpose.
(2) Evidence that under this Part cannot be used against a party to prove a
particular matter must not be used against the party to prove that matter even
if it is relevant for another purpose.Evidence relevant to important evidentiary issue
(1) For the purposes of this Part, each of the following kinds of evidence is
relevant to an important evidentiary issue in a proceeding:(a) evidence that shows a propensity of a party to be untruthful if the party’s
truthfulness is in issue in the proceeding,
(b) evidence that shows a propensity of a party to commit particular kinds
of offences if the commission of an offence of the same or a similar kind
is in issue in the proceeding,
(c) evidence that could be relevant to any matter in issue in the proceeding
if the matter is important in the context of the proceeding as a whole.(2) In determining whether evidence is relevant to an important evidentiary issue
in a proceeding, the court is to consider whether the evidence, assuming it was
accepted as credible and reliable, would be evidence of a kind referred to in
subsection (1).Failure to act
A reference in this Part to doing an act includes a reference to failing to do that
act.The propensity rule
(1) This section applies to the admissibility of evidence (propensity evidence) of:
(a) any one or more of the following to prove that a person has or had a
propensity to act in a particular way or have a particular state of mind:(i) the character or reputation of the person,
(ii) a tendency that the person has or had,
(iii) conduct of the person (including conduct of the same or a similar
kind to conduct that is a fact in issue in the proceeding), or(b) the occurrence of 2 or more events to prove that a person did a particular
act, or had a particular state of mind, because of similarities in the events
or the circumstances in which they occurred (or both).(2) Propensity evidence is inadmissible 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, be relevant to an important evidentiary issue in the proceeding.
Note. Section 99 enables a court to refuse to admit propensity evidence in a criminal
proceeding on the application of the defendant if the court thinks, having regard to the
particular circumstances of the proceeding, that admission of the evidence is likely to
result in the proceeding being unfair to the defendant.(3) Subsection (2) (a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the
court under section 101, or
(b) the evidence is adduced to explain or contradict propensity evidence
adduced by another party.
Note. The propensity rule is subject to specific exceptions concerning character of and
expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.
Additional provisions for propensity evidence in criminal proceeding
(1) Despite section 98, the court in a criminal proceeding may, on the application
of a defendant, refuse to admit propensity evidence if the court thinks, having
regard to the particular circumstances of the proceeding, that:(a) admission of the evidence is likely to result in the proceeding being
unfair to the defendant, and
(b) if there is a jury, the giving of appropriate directions to the jury about
the relevance and use of the evidence is unlikely to remove the risk.(2) The admission of evidence is not unfair to a defendant in a criminal proceeding
merely because it is propensity evidence.
Note. See also section 94 (4) and (5).
(3) If directions about the relevance and use of propensity evidence are likely to
remove the risk of unfairness of the kind referred to subsection (1) (b), the
court must give those directions rather than refuse to admit the evidence.Requirements for notices
Notices given under section 98 are to be given in accordance with any
regulations or rules of court made for the purposes of this section.Court may dispense with notice requirements
(1) The court may, on the application of a party, direct that the propensity rule is
not to apply to particular propensity evidence despite the party’s failure to give
notice under section 98.
(2) The application may be made either before or after the time by which the party
would, apart from this section, be required to give, or to have given, the notice.
(3) In a civil proceeding, the party’s application may be made without notice of it
having been given to one or more of the other parties.
(4) The direction:(a) is subject to such conditions (if any) as the court thinks fit, and
(b) may be given either at or before the hearing.(5) Without limiting the court’s power to impose conditions under this section,
those conditions may include one or more of the following:
(a) a condition that the party give notice of its intention to adduce the
evidence to a specified party, or to each other party other than a
specified party,
(b) a condition that the party give such notice only in respect of specified
propensity evidence, or all propensity evidence that the party intends to
adduce other than specified propensity evidence.
101A Exclusion of propensity evidence under section 135 or 137
Propensity evidence about a party that is admissible under this Part cannot be
excluded under section 135 or 137 on the ground that it is unfairly prejudicial
to the party.
[6] Section 110 Evidence about character of accused persons
Omit “tendency rule” wherever occurring. Insert instead “propensity rule”.
[7] Section 111 Evidence about character of co-accused
Omit “tendency rule” wherever occurring. Insert instead “propensity rule”.
[8] Dictionary
Omit the definitions of coincidence evidence, coincidence rule, tendency evidence and
tendency rule.
Insert in alphabetical order:
propensity evidence means evidence of a kind referred to in section 98 (1) that
a party seeks to have adduced for the purpose referred to in that subsection.propensity rule means section 98 (2).
Annexure B: Attorney-General Working Group Model Provisions – Parliamentary Counsel’s Committee – Uniform Evidence Law (Tendency and Coincidence) Model Provisions 2019
Name of model provisions
These model provisions are the Uniform Evidence Law (Tendency and Coincidence)
Model Provisions 2019.Purpose of model provisions
(1) The purpose of these provisions is to set out model amendments to the Uniform
Evidence Law—(a) to provide guidance concerning the use of tendency evidence in criminal
proceedings involving acts that constitute, or may constitute, child sexual
offences, and
(b) to alter the test for the admissibility of tendency evidence or coincidence
evidence in criminal proceedings, and
(c) to make it clear that—
(i) certain principles and rules of the common law or equity are not relevant
in applying Part 3.6 of the Law to tendency evidence or coincidence
evidence, and
(ii) in determining the probative value of tendency evidence or coincidence
evidence for the purposes of deciding its admissibility, it is not open to
the court to have regard to the possibility that the evidence may be the
result of collusion, concoction or contamination, and
(iii) coincidence evidence includes the use of evidence from 2 or more
witnesses claiming they are victims of offences committed by a person
who is a defendant in a criminal proceeding to prove, on the basis of
similarities in the claimed acts or the circumstances in which they
occurred, that the defendant did an act in issue in the proceeding.(2) In these provisions, the Uniform Evidence Law means the provisions set out in the
Model Uniform Evidence Bill based on the NSW Evidence Act 1995, as amended by
the Evidence Amendment Bill 2007, prepared by the Parliamentary Counsel’s
Committee and endorsed by the Standing Committee of Attorneys-General on 26
July 2007, and as amended by model provisions that the Committee agreed to include
in the Model Uniform Evidence Bill on 7 May 2010.
Note. A copy of the Model Uniform Evidence Bill is available on the website of the Australasian
Parliamentary Counsel's Committee at >Model amendments to Uniform Evidence Law
Schedule 1 sets out the model amendments to the Uniform Evidence Law.
Schedule 1 Model amendments to Uniform Evidence Law
[1] Section 94 Application
Insert after section 94(3)—
(4) To avoid doubt, any principle or rule of the common law or equity that
prevents or restricts the admissibility of evidence about propensity or similar
fact evidence in a proceeding is not relevant when applying this Part to
tendency evidence or coincidence evidence about a defendant.
(5) In determining the probative value of tendency evidence or coincidence
evidence for the purposes of section 97(1)(b), 97A(4), 98(1)(b) or 101(2), it is
not open to the court to have regard to the possibility that the evidence may be
the result of collusion, concoction or contamination.
[2] Section 97A
Insert after section 97—
97A Admissibility of tendency evidence in proceedings involving child sexual
offences
(1) This section applies in a criminal proceeding in which the commission by the
defendant of an act that constitutes, or may constitute, a child sexual offence
is a fact in issue.
(2) It is presumed that the following tendency evidence about the defendant will
have significant probative value for the purposes of sections 97(1)(b) and
101(2)—(a) tendency evidence about the sexual interest the defendant has or had in
children (even if the defendant has not acted on the interest),
(b) tendency evidence about the defendant acting on a sexual interest the
defendant has or had in children.
(3) Subsection (2) applies whether or not the sexual interest or act to which the
tendency evidence relates was directed at a complainant in the proceeding, any
other child or children generally.
(4) Despite subsection (2), the court may determine that the tendency evidence
does not have significant probative value if it is satisfied that there are
sufficient grounds to do so.
(5) The following matters (whether considered individually or in combination) are
not to be taken into account when determining whether there are sufficient
grounds for the purposes of subsection (4) unless the court considers there are
exceptional circumstances in relation to those matters (whether considered
individually or in combination) to warrant taking them into account—(a) the sexual interest or act to which the tendency evidence relates (the
tendency sexual interest or act) is different from the sexual interest or
act alleged in the proceeding (the alleged sexual interest or act),
(b) the circumstances in which the tendency sexual interest or act occurred
are different from circumstances in which the alleged sexual interest or
act occurred,
(c) the personal characteristics of the subject of the tendency sexual interest
or act (for example, the subject’s age, sex or gender) are different tothose of the subject of the alleged sexual interest or act,
(d) the relationship between the defendant and the subject of the tendency
sexual interest or act is different from the relationship between the
defendant and the subject of the alleged sexual interest or act,
(e) the period of time between the occurrence of the tendency sexual
interest or act and the occurrence of the alleged sexual interest or act,
(f) the tendency sexual interest or act and alleged sexual interest or act do
not share distinctive or unusual features,
(g) the level of generality of the tendency to which the tendency evidence relates.
(6) In this section—
child means a person under 18 years of age.
child sexual offence means each of the following offences (however
described and regardless of when it occurred)—(a) an offence against, or arising under, a law of this State involving sexual
intercourse with, or any other sexual offence against, a person who was
a child at the time of the offence, or
(b) an offence against, or arising under, a law of this State involving an
unlawful sexual act with, or directed towards, a person who was a child
at the time of the offence, or
(c) an offence against, or arising under, a law of the Commonwealth,
another State, a Territory or a foreign country that, if committed in this
State, would have been an offence of a kind referred to in paragraph (a)
or (b),
but does not include conduct of a person that has ceased to be an offence since
the time when the person engaged in the conduct.
Jurisdictional note. Paragraphs (a) and (b) of this definition are suggested as an
alternative to listing specific offences. If they prefer, jurisdictions may choose instead
to list specific offences (including historical ones).
[3] Section 98 The coincidence rule
Insert after section 98(1)—
(1A) To avoid doubt, subsection (1) includes the use of evidence from 2 or more
witnesses claiming they are victims of offences committed by a person who is
a defendant in a criminal proceeding to prove, on the basis of similarities in the
claimed acts or the circumstances in which they occurred, that the defendant
did an act in issue in the proceeding.
[4] Section 101 Further restrictions on tendency evidence and coincidence evidence
adduced by prosecution
Omit “the probative value of the evidence substantially outweighs any prejudicial effect it
may have on the defendant” from section 101(2).
Insert instead “the probative value of the evidence outweighs the danger of unfair prejudice
to the defendant”.
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