R v Shultz, Allen Edwin

[2016] NSWDC 392

District Court

New South Wales

Medium Neutral Citation:	R v SHULTZ, Allen Edwin [2016] NSWDC 392
Hearing dates:	8 September 2016
Decision date:	08 September 2016
Jurisdiction:	Criminal
Before:	Norrish DCJ
Decision:	Tendancy evidence inadmissible
Catchwords:	CRIMINAL LAW - Admissibility of complaint evidence - tendancy
Legislation Cited:	Evidence Act (NSW) 1995
Cases Cited:	DAO v R [2011] NSWCCA 63 DSJ v R; NS v R [2012] NSWCCA 9 Gardiner v The Queen [2006] NSWCCA 190 Hughes v R [2015] NSWCCA 330 IMM v R [2016] HCA 14 Pfennig v R [1995] HCA 7 R v Fletcher [2005] NSWCCA 338 R v Ford [2009] NSWCCA 306 R v Lockyer [1996] 89 A Crim R 457 R v Shamouil [2006] NSWCCA 112 Sokolowskyj v R [2014] NSWCCA 55 XY v R [2013] NSWCCA 121
Category:	Principal judgment
Parties:	Regina (Crown) Allen Edwin Shultz (Offender)
Representation:	Counsel: Mr Cooley (Crown) Mr Jankowski (Defendant)
File Number(s):	2014/00368026
Publication restriction:	There is to be no publication of information that identifies or is likely to lead to the identification of the complainants in these proceedings.

judgment

1. HIS HONOUR: The Crown has framed an indictment relating to the accused, Allen Edwin Schultz, alleging against him six counts of indecent assault upon a child then under the age of 16 years. Counts 1 and 2 are concerned with a complainant, who I will refer to as AK. Her initials may later need changing to further disguise her true identity, but that is a matter I can discuss with the parties. Four counts relate to a complainant, GC. I am using the same initials today as we did yesterday because they were the initials we have referred to in the course of submission.

2. The offences relating to AK, as well as the offences relating to GC, were committed at a place called Cobark, which apparently is a location or hamlet in the vicinity of the Gloucester region of the Mid North Coast or Hunter Valley. I am not quite sure of the regional description.

3. The offences were committed in circumstances where the complainants were attending some type of horse training or horse riding school or property, either controlled or administered by the accused. The offences involving AK were committed between 1 November 2012 and 30 December 2012 in respect of count 1, when the complainant was 13 years of age, and as to count 2, between 19 September 2014 and 25 September 2014, when the complainant was 15 years of age.

4. The allegations relating to GC relate to events occurring on the one day. That course of conduct, if I might use that expression, is alleged by the complainant on 5 February 2014. The complainant was 13 years of age.

5. It is not suggested that the two complainants knew each other. In the circumstances of the matter, no issue has been raised in the context of the matters I have been asked to decide at relatively short notice as to potential concoction and other issues that have been discussed at some considerable length by the Court of Criminal Appeal in a range of ways, particularly over the last five or six years. The case is a typical one of this Court. It is a matter of some frustration for a Judge to be sitting in one trial one minute then to be handed a file and five minutes later to have two different counsel in front of one, as happened yesterday, confronted with what obviously are complex and difficult issues, if one has regard to the various judgements of the Court of Criminal Appeal and the recent decision of the High Court of Australia, which was referred to in submissions of counsel for the accused, of IMM v R [2016] HCA 14, with little time to consider the issues.

6. If one could draw a parallel with sentencing, it is well and good to say as happened here that in the determination of a particular matter the circumstances are similar to a case heard on appeal, but there are, of course, always differences to be identified which warrant individual consideration of the case at the bar.

7. Before I turn to the principles to be applied and the relevant legislation in that respect, both parties extensively referred to the decision of the Court of Criminal Appeal in Hughes v R [2015] NSWCCA 330, a decision of the Court of Criminal Appeal of 21 December 2015.

8. I believe I understood from something that I read some days ago, although I have been off on sick leave for quite a number of weeks and lost track of the information I have absorbed in the last week or so, that Mr Hughes has made an application to the High Court and has been granted special leave. On what issues I do not know. But for the purposes of this judgment, I adopt the reasoning of the Court of Criminal Appeal in Hughes, some of which I will need to refer in some specific detail, as I must, bound by a decision of the Court delivering a joint judgment.

9. In any event, much of what is in Hughes, without getting into the merits of issues for the High Court to resolve in due course, are matters that have been the subject of discussion and well understood for some considerable period of time beforehand since shortly after the enactment of the Evidence Act in September 1995.

10. For example, as was made clear in the helpful submissions of counsel for the accused, a decision such as Lockyer [1996] 89 ACR 457 in the judgment of Hunt CJ at CL as to the issue of what relevantly constitutes, "probative value," and what constitutes, "unfair prejudice," still stands, with various subsequent qualifications.

11. There is another decision of some age referred to by learned counsel for the accused, which I understand still stands in essence, although some of the matters contained within it are not particularly pertinent in this appeal. That is the decision of Fletcher [2005] NSWCCA 338 where her Honour, Simpson J, noted the various steps that are required to be taken in assessing the admissibility of tendency evidence, the character of the exercise being a, "predictive and evaluative exercise." Those particular matters are identified from her judgment at para 6.6 of the helpful written submissions of counsel for the accused.

12. It is to be pointed out, of course, in the context of what may have been considered by the Court in 2005, that a debate that had been raging between various intermediate Courts of Appeal, and of course, at first instance, in a range of circumstances about the judge's role in evaluating probative value of evidence. This has been settled by the decision of IMM v R [2016] HCA 14, where the High Court of Australia adopted essentially the reasoning in the NSW decision of R v Shamouil [2006] NSWCCA 112, and in part reflected in the subsequent decision of Court of Appeal of XY v R [2013] NSWCCA 121, that the Judge’s role in evaluating probative value does not extend to assessing the credibility of the evidence as a rule.

13. The matter came before me in the context of a motion that had been filed on 3 August 2016, seeking that tendency evidence sought to be relied upon by the Crown be determined as "inadmissible and thereby excluded from all trials."

14. There are related grounds in the motion seeking severance of counts in the indictment relating to different complainants. In that regard, I appreciate, as the Crown has pointed out to me, that the form of the indictment that was presented yesterday and upon which the accused was arraigned has changed quite considerably over a period of time, with particular matters relating to a particular complainant being no-billed and particular allegations relating to a third complainant being considered by the learned Director as being appropriate to be tried separately from the six counts relating to the matters with which I am concerned. The Crown's notice pursuant to the Evidence Act of its intention to rely upon tendency evidence is before me. It was produced by both the Crown and the defence and I will come to it in a moment.

15. The particulars of the respective counts as I have identified them are that, in respect of count 1 concerning the complainant AK, in the context of him instructing or supervising the complainant in the course of her presence at a horse training facility, the accused placed his arm over the victim and then, as she has described, put a hand on her bra and held his hand slightly under her bra on the top of her breast. That is the allegation of the events in 2012.

16. Count 2 is concerned with an allegation that, in September 2014 as it is summarised in the particulars advised, the accused placing his finger inside the front of the complainant's buttoned shirt down the front of the complainant's shirt.

17. In respect of GC, count 3 is concerned with the accused touching the complainant's hip and bottom in the context of, as I understand it, her endeavouring to get onto or being placed upon a horse.

18. Count 4 is an allegation of the accused placing his hand on the complainant's thigh and then the lower back, but particularly, sliding his hand under her pants and underwear and gripping her bottom.

19. Count 5 is concerned with the accused, "grabbing (sic) the complainant's bottom”, as it is described, and likewise in relation to count 6. I must say, although it does not matter a great deal, my understanding of the detail of what the complainant actually says in the recorded interview is that it is a touching rather than a grabbing. But that is the way the wording has appeared in the particulars. Nothing turns upon it.

20. Furthermore, in addition to the particulars, I have been given the electronic interviews that were conducted with the respective complainants. Portions of those electronic interviews are identified as being relevant to the issue of the claimed tendencies of the accused.

21. In respect of the complainant AK, she gave an interview on 24 November 2014. In respect of the complainant, GC, she gave two interviews, one on the same date but interviewed by different police, and then another interview on 5 December 2014. It would appear the second interview is much longer than the first interview and to some extent overlaps with the first interview but contains a number of additional allegations that are not contained within the first interview, giving rise to further counts in the indictment.

22. In respect of the ‘Notice’ of the Crown, the claimed tendency on the part of the accused in the context to what is required to be identified under s 97(1) Evidence Act 1995, herein after to be referred to as ‘the Act’, is identified as:

23. "The tendency sought to be proved is his tendency to act in a particular way, namely that the accused has a tendency to touch young females in a sexual way; the accused has a tendency to touch young females in a sexual way whilst in company of other people; the accused has a tendency to touch young females under his instruction or supervision around horseriding activities in a sexual way; and further, that the accused has a particular state of mind by having a sexual interest in young females under his instruction."

24. In the hearing of this matter, the material before me was all documentary. I took the liberty of adjourning for about an hour before the lunch break yesterday to read the material provided to me. There was no oral evidence called and, as I have indicated, I was helped by extensive written submissions by counsel for the accused and oral submissions from him and counsel for the Crown. The Crown seeks, in the ‘Tendency Notice’, to identify, in respect of AK and GC, the portions of the interview relevant to both the particular counts and contextual evidence. It must be fairly said, in respect of the two complainants, that what is alleged against the accused by each of the complainants giving rise to the counts in the indictment, are not isolated counts, in the sense that they are the only instances alleged by the complainants to be circumstances of touching by the accused. There is a body of material within the electronic interviews which will be the evidence in chief of the complainant’s evidence of a contextual nature. The issues raised by counsel for the accused in the written submissions are many.

25. First of all, there is a complaint about the Tendency Notice and the complaint that the detail within the Tendency Notice is ‘defective’, in the context of what has been discussed in decisions such as Gardiner v The Queen [2006] NSWCCA 190, at [128] and, in fact, in the case of Hughes, at [164 165], where the Court adopted observations made by Bathurst CJ in an earlier decision of R v DSJ [2012] NSWCCA 9 which is extensively quoted. With regard to that aspect of the matter, if I might deal with it discretely. s 99 of the Act provides in very simple terms: "Notices given under s 97…are to be given in accordance with any regulation or rules of Court made for the purposes of this section."

26. In that regard, there is reference to ‘reg 6’ of the Act and the requirement of particularising the specific evidence, amongst other things, that relates to particular acts giving rise to the claim of the existence of the relevant tendency. The difficulty with the Notice that was prepared in this matter - and I do not, in any way, seek to express any personal criticism of anyone - was ably reflected in the discussion I had with the learned Crown Prosecutor at pp 25 to 34 of the transcript. Having read the relevant interviews, knowing what the particulars were, it was very difficult by reading the interviews themselves or the extracts that have been provided by the learned counsel for the accused from those interviews to work precisely what particular representations of the respective complainants related to particular counts or were otherwise available as context evidence. The process, in part complicated by the form of the particulars referring to a count that no longer is on the indictment, showed some, if not uncertainty, hesitation on the part of the prosecution and, perhaps, confusion in relation to whether particular representations related to one count or another. In that regard in respect of some alleged counts there were a great deal more particulars provided by one or other of the complainants than there were in relation to other counts. For the purposes of this determination that I have made, although it was argued to the contrary by learned counsel for the accused, accept - although it was not articulated as such - the proposition put by the Crown that in assessing the “probative value” for the purposes of s 97 of the Act, I am required to consider the specific instances reflecting the alleged tendency in conjunction with the context evidence.

27. I understood some oral submissions made by learned counsel for the accused to take issue with the availability of the context evidence in the consideration of the alleged tendency. In my view, although the Crown speaks to specific tendencies demonstrated by the accused, reflected in the material available and relied upon by the Crown in relation to each count, the evidence in that regard has to be seen by reference to the contextual material. It may be said that the contextual material at any trial would be admissible to explain the circumstances that give rise to the specific allegations, giving rise to counts in an indictment and also to perhaps understand or assess matters, if they did exist, of delay in complaint or the like. In any event, as I said, the transcript itself lays bare what could be seen to be an inadequacy in the Notice.

28. That having been said however, the Notice, for all of its deficiencies, is not "defective" to the point where one would rule upon the matter in limine, so to speak. The truth of the matter is that it is quite clear from the written submissions and the oral submissions of counsel for the accused that he is well aware of the character of the allegations against his client. He has an understanding, as must his client, of the specific allegations and the contextual evidence swirling around those allegations, and he is fully aware of the character of the tendencies identified by the Crown.

29. The primary issues advanced on behalf of the applicant in relation to the matter, by reference extensively to authorities such as Hughes, IMM and the like, and cases cited within those decisions, are set out at Part 8 of the written submissions of the applicant. It is submitted as a general proposition that in respect of the matters sought to be relied upon by the Crown in proof of tendency for that evidence to be available to the jury pursuant to s 97, the evidence produced by the Crown is not of significant probative value.

30. Counsel for the accused in various ways argues that; there are differences between the conduct asserted against the accused by each complainant; that there are differences in the particular circumstances of each alleged set of allegations; and that the tendencies asserted, are too general in nature. In conjunction with this is a complaint which I understand to be connected to matters more relevant to s 101 of the Act, that is the overwhelming unfair prejudicial effect of the combined allegations, including what are described as "uncharged acts", but which I prefer to refer to as ‘contextual evidence’, and the unlikelihood in that context that any directions will overcome potential unfair prejudice.

31. The Crown's position, as I said, was given to the Court orally. I made extensive notes of the learned Crown's submissions but in fact, as I said before I came on the bench although I got access to the transcript late yesterday, because I have been involved in other work sentencing a man to terms of imprisonment and the like, I have only had a brief opportunity to go through the transcript.

32. The Crown's position is that it presses the reliance upon the tendency reasoning in respect of each of the complainants in proof of guilt of the accused in respect of allegations of the other complainant. The Crown made concessions as to the acceptance of the fact that as between AK and GC there is a dissimilarity in the conduct of the accused, but submits the issue of similarity and dissimilarity was just one of a number of matters the Court had to take into account and it was not of itself determinative.

33. The Crown said in submission that he:

"Conceded in sense the greater the similarities, the more likely the Court would find that it has significant probative value, however...the opposite is not necessarily true to the same extreme...(referring to Hughes) in that judgment the Court said that the fact of dissimilarity of itself may not be determinative."

34. The learned Crown prosecutor took me to various aspects of Hughes v The Queen, noting aspects of the character of the case against Mr Hughes. I pointed out earlier in passing that the Crown said there were "similarities" in the tendency or tendencies alleged against this accused and Mr Hughes, and similarities to some extent in aspects of the allegations. It must be fairly said, and I do not mean this unkindly of the Crown submission, that when one is dealing with instances of "indecent assault" of a child under 16, because there are a range of legislative provisions to deal with sexual misconduct, the character of the conduct that gives rise to this specific charge is generally of a similar nature. For example matters of penetration of genitalia and the like would call for other provisions to be considered.

35. He noted in relation to Hughes that the tendency claimed in that matter was, amongst other things, having a sexual interest in young girls and young women, and a tendency to engage in sexual conduct or in a sexual way with them when the opportunity arose. For what it is worth, it must be said that the "opportunity" that arose for Mr Hughes to engage in sexual conduct with children or young women was of a far varying character than alleged in this matter which, in the context of the analysis of the trial judge in the Court of Criminal Appeal, subsequently was a matter that in effect gave the similarities, or dissimilarities as the case may be, greater probative value.

34. Mr Crown took me to particular paragraphs of Hughes which I will refer to in a little while. He acknowledged the differences between the conduct alleged by AK and the conduct alleged by GC. He also acknowledged differences between the conduct alleged by AK in respect of count 1 and count 2, but more particularly given what could be called in the limited range of conduct contemplated by the provision giving rise to the charge, the substantial difference in conduct between what is alleged in relation to count 4 in relation to GC and counts 3, 5 and 6 concerning that complainant.

35. In fact it might be said, without being unkind to the Crown case, that the particulars in relation to counts 5 and 6 are very limited indeed and it is very hard to distinguish those counts from what is alleged to be a "course of conduct" or contextual conduct by the accused in the course of the day that the complainant said that the accused indecently touched her. He noted of course that it was a matter of ‘significant probative value’, not ‘substantial probative value’. Of course the probative value of the evidence must be only that it is relevant to the proceedings in the way the Crown would argue, but that it is in the circumstances "significant".

36. So far as the arguments in relation to s 101 of the Act are concerned, the Crown Prosecutor submitted that in effect there is always prejudice by the joining of allegations of complainants. But that prejudice could be overcome by appropriate direction. It goes without saying, as was made clear by Hunt CJ at CL almost 20 years ago, unfair prejudice is not concerned with the fact that the admission into evidence of particular matters may be "prejudicial" to the accused per se. The issue is whether, amongst other things, the evidence may be misused by the tribunal of fact. It has been long held in a range of ways that if the matter can be dealt with by appropriate direction, then it is to be assumed that there is no unfair prejudice. As the High Court has made clear on a number of occasions, it is always assumed that juries will act upon the directions given to them by counsel.

37. Just to turn to the legal issues with which I am concerned, s 97 of the Act provides relevantly:

"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 the person has or had a tendency...to act in a particular way or to have a particular state of mind unless...the parties seeking to adduce the evidence gave reasonable notice in writing (to the other party) of (its) intention to adduce the evidence and the Court thinks that the evidence will either by itself or having regard to other evidence adduced or to be adduced by the parties seeking to adduce the evidence, have significant probative value."

40. "Probative value" is defined in the Dictionary of the Act as, "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." It was said in the context of para 6 of the Notice that the Crown had failed to identify what were the facts in issue. Without having to repeat myself from yesterday, it would have been, to my mind just with my then very brief knowledge of the case being far less thorough than the knowledge that the Crown and Mr Jankowski had of the case, that the facts in issue were "self evident." At p 36 of the transcript, I identified what I understood to be at least some of the relevant "facts in issue", with which the Crown agreed having to formulate those matters on the run.

41. In relation to s 101 of the Act, which has relevance to both s 97, concerned with tendency evidence, and s 98, concerned with coincidence evidence, the relevant part of the section is:

42. "Tendency about (an accused) that is adduced by the prosecution cannot be used against the (accused) unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the (accused)."

43. There are other provisions but they are not relevant to this matter. As I said, the parties took me to a number of authorities but principally, the decision of Hughes, to which I had referred, and the judgment of IMM. As I pointed out, the matter in issue in IMM arising under s 97, that is the role of the trial judge in evaluating "probative value" of evidence, does not arise here. As I said earlier, neither does an issue that has occupied trial courts and appeal courts for some period of time. That is the risk of concoction between complainants.

44. To just cite a part of what has been referred to me by the parties, from the decision of Hughes relevant to the assessment of probative value, pursuant to s 97 and the tests that arise in relation to s 101, the Court of Criminal Appeal reviewed the principles that relate to the assessment of the meaning of "significant probative value" at, amongst other places, [182] - [185]. The Court said:

[182] "Thus, in summary, the law in this State is that, whether the Court thinks that the evidence has significant probative value for the purposes of s 97 involves an assessment by the Court as to whether a jury could treat it of importance in supporting an inference of guilt of the accused on the count charge. It is an assessment of the capacity of the evidence to have that effect. In undertaking that task, the Court must consider, having regard to the evidence adduced, whether there is a real possibility of an alternative explanation inconsistent with innocence.

[183] In making the assessment, whether evidence tendered as tendency evidence has significant probative value, regard inevitably will be had to similarities in the conduct relevant to the offence. That is different from requiring that the conduct bear similarities to the conduct with which this person is charged."

45. Their Honours noted in passing the observations of Basten JA in another decision, that:

"The nature of the similarities will depend very much on the circumstances of the case."

46. The Court went on to say, at [184]:

"The critical point made in these authorities is that tendency evidence need not show a tendency to commit acts that constitute the crime or crimes with which the accused is charged. There only needs to be a 'tendency...to act in a particular way' (in respect of conduct. I hasten to say the Court of Criminal Appeal also no doubt would say, by reference to s 97, "to have a particular state of mind")…relevant to the conduct subject to the charge, Relevance is determined by reference to the Evidence Act s 55. That is evidence, which if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding."

47. The Court also said at [185]:

"When regard is had to the inferential nature of tendency evidence and the requirement that it be relevant evidence, it is apparent that tendency evidence is not only directed to the particular type of conduct that constitutes an element of the charge. There is a wide range of evidence relevant to the determination of the guilt of the accused of a particular crime. When the question of admissibility of tendency evidence arises, the question is whether the conduct said to exhibit a tendency allows, by an inferential process of reasoning, that the person was more likely to act in a particular way or have the relevant state of mind on the particular occasion that is the subject of the charge or charges."

48. The Court went on to also refer to relevant matters in relation to s 101. I refer generally to paras [189] - [193] and take those matters into account. I note in relation to para [190], the Court observed that the determination to be made under s 101(2) requires "the trial judge to engage in a balancing exercise". The Court went on to say, “the 'no rational explanation' test as held in Pfennig v R [1995] HCA 7 no longer reflects the appropriate consideration of the matters to be balanced under s 101(2)."

49. As Campbell JA stated in R v Ford [2009] NSWCCA 306:

"The proper carrying-out of the balancing test requires the judge to identify the type or types of prejudicial effect it may give rise to, and why it is the judge has reached the view that the probative value of the evidence substantially outweighs (or does not substantially outweigh as the case may be) any prejudicial effect…"

50. The Court of Criminal Appeal in Hughes further said at [192], In Sokolowskyj v R [2014] NSWCCA 55, the Court held at [47] that "the concept of prejudicial effect is understood in substantially the same way as unfair prejudice" as expressed in s 137.” The Court also adopted what Simpson J had said in DAO v R [2011] NSWCCA 63, particularly at [171] that that terminology meant that:

"It is legitimate and appropriate for the judge to take into account the ameliorating effect of any directions that may be available to reduce the prejudicial effect"

51. Turning to its consideration of the issue of "significant probative value" as it arose for determination in the appeal and turning to some matters that were particularly cited by the Crown in its oral submissions, (discussed at [194] - [200]), it was noted:

"There is no doubt that the tendency evidence in this case was admitted on a basis that allowed similar circumstances and dissimilar acts to be used in respect of different counts. That is relevant to the assessment of whether such evidence has significant probative value. But the fact of dissimilarity of itself may not be determinative, much will depend upon what the dissimilarities relate to"

52. Citing the case of Sokolowskyj, which I referred to as an example of whether dissimilarities were such that the evidence was not properly characterised as tendency evidence, at [196], their Honours then considered another decision which raised "similar considerations", noting two essential tendencies being a sexual interest in female children under 16 years of age, and to engage in sexual conduct with female children under 16 years of age. Their Honours pointed out that in the Hughes case, those "tendencies" were different but not significantly disassociated context of social and familial relationships; his daughter's relationships with her young friends and the “work environment" (at [197]), characteristics not available here. Their Honours said:

"These similarities are obvious on their face. However what was common to all of them was that they represented occasions in which young females were present. The applicant used those occasions for the purposes of engaging in sexual activities with them…the same may be said of the dissimilarity in the sexual conduct. However, notwithstanding the dissimilarities, the conduct alleged was sexual in nature, directed towards young females on occasions that presented themselves to the applicant. Underlying, the similarity was that the conduct was, in effect, referrable to the circumstances as they presented to the applicant. In short, the conduct occurred opportunistically as and when young females were in the applicant's company"

53. The Court went on to say that in that matter that "evidence underpinning the tendency notice…which described the alleged tendency in the five paragraphs which identified in detail the various aspects of the tendency sought to be relied upon, was correctly assessed as having significant probative value" (see [198] - [200]).

54. In this matter, in the context of that discussion of principle and the application of those principles to the circumstances of this particular case, there are several brief points to be made.

55. Firstly, given the range of circumstances available in Hughes in which it was alleged that that particular applicant had to "taken the opportunity" when it presented itself to him to assault young females in his presence, it was to my mind clear, in the context of assessing whether the probative value of the particular evidence relevant for tendency purposes was significant, that the claim of ‘significance’ was greatly enhanced by the range of circumstances that arose that provided that opportunity to that particular applicant. It is true here that there is the fact that the accused is alleged to have indecently assaulted the complainants when they were under his supervision. But the issue of "taking the opportunity" to undertake the commission of the offences is not as clear cut, given the surrounding context in which the complainants were in his presence.

56. Another feature of this matter, important in the context of there being just two complainants relied upon by the Crown to establish the tendencies, is that the dissimilarities in the conduct of the accused between each of the complainants is of itself "significant', to borrow that term from the wording of the section but for a different purpose. The complainant in the first two counts primarily alleges the touching of her in a particular way which on one view of it, may be thought to be in its terms, if true, clearly of a sexual character to varying extent. I pause for a moment to point out that it is to be fairly said that the allegation in relation to count 1 is clearly far more overtly "sexual" than the allegation in relation to count 2.

57. In respect of the second complainant, GC, so far as her allegations giving rise to counts 3 to 6 are concerned, there are, to summarise the matter from the particulars provided by the Crown, a substantial distinction to be drawn between the allegation in count 4 and the allegations in count 3, 5 and 6 in the context of interpreting the conduct of the accused as "sexual". I bear in mind of course, in this regard, the account given by the complainant herself of the circumstances in which she alleges that the accused touched her on the bottom and the hip giving rise to either count 3, 5 and 6.

58. What was said, for example, in the extract from Hughes that I earlier summarised, that the Court must, having regard to the evidence adduced, consider "whether there is a real possibility of an alternative explanation consistent with innocence" (at [182]) in relation to the particular conduct said to be of significant probative value in assessing the tendencies pleaded by the prosecution, the complainant's version of events speaks of touching of the bottom, giving rise particularly to counts 5 and 6, and also providing evidence of "context" in circumstances that are either equivocal or may be seen to arise in the context of legitimate activity relating to the handling of a person in the course of administering instruction in relation to the riding of horses.

59. The problem in this particular matter, to focus on the matters that arise from the section, is that in the terms of what is required of the Court by the decision in IMM, in other words assessing the evidence at face value and giving it full weight in its terms, the conduct of the accused alleged by the complainant in relation to count 1 is, in the overall scheme of things, more "overtly sexual" and thus of greater probative value than the allegation in relation to count 2. The conduct of the accused in relation to GC, is of greater probative value for the purposes of establishing the relevant tendencies alleged by the Crown in relation to count 4 than it is in relation to counts 3, 5 and 6.The surrounding circumstances of the 2 sets of allegations are some white different, though occurring at the same general location.

60. Standing alone, even in context, I would not ascribe the evidence relevant to count 2, and counts 3, 5 and 6 an assessment of significant probative value to establish the tendencies claimed, even allowing for the relationship of those counts to the other counts where the evidence may be said to have greater weight in terms of establishing the tendency alleged by the Crown in its tendency notice. The question then arises, allowing for the ‘contextual’ evidence, including evidence in relation to other counts, whether the remaining counts - count 1 as it relates to AK and count 4 as it relates to GC - relevantly have ‘significant probative value’ in establishing the tendencies identified by the Crown in its notice.

61. Allowing for the dissimilarities between the two types of conduct and making full allowance of course for what the Crown submitted to me and what was taken into account by the Court of Criminal Appeal in Hughes, I have ultimately concluded that I could not be satisfied by the Crown for the purposes of this matter that the relevant evidence had the ‘significant probative value’ required to establish the relevant tendencies identified by the Crown in its Notice. If I was wrong in that assessment, adopting if I may just for the moment some of the reasoning in the consideration of the Hughes matter to ascribe to the specific conduct sufficient probative value to identify each matter as significant, it seems to me with respect that s 101 of the Act has a great deal of work to do in assessing the admissibility of the evidence for tendency purposes.

62. It would seem on my assessment of the matter that notwithstanding that I acknowledge that appropriate direction is a matter that has to be considered in determining whether there is a risk of unfair prejudice may be removed, given the complexity of the factual situation and the risk that evidence that is not of significant probative value, or may not be relevant to the assessment of a particular incident alleged by the Crown, may be before the jury in circumstances where it had no relevance to establish the tendencies alleged by the Crown, the practical problem would be in my view that the risk of ‘unfair prejudice’ or ‘prejudicial effect’ cannot be removed by appropriate direction such as to leave one with the conclusion that the relevant probative value of the particular evidence substantially outweighed any prejudicial effect, given the jury would have to consider only limited parts of each complainant's evidence to determine whether the accused had the tendencies alleged by the Crown.

63. The matter, to put it in another way, is one where if all relevant conduct of the accused, for example relevant to one complainant, was available as proof of tendency in proof of guilt of the accused in relation to the other complainant and vice versa, then clearly it is obvious that the Court could adequately direct the jury to ensure that the probative value of the evidence substantially outweighed any prejudicial effect.

64. The difficulty here would be in directing the jury by isolating only part of a particular witness' evidence that could be relevant for tendency purposes, leaving the jury to consider other evidence that is directed to be only relevant to proof of guilt of the accused in relation to counts concerning only the complainant from whom it comes. A circumstance that must inevitably in my view lead to confusion with all the best will in the world by the judge and the parties to ensure that the jury remain focused on the issues required to be considered by it.

65. Thus in summary, I have concluded that the evidence sought to be adduced by the Crown for tendency purposes in proof of the guilt in respect of the various counts alleged against the accused, concerning the two complainants, should not be admissible for the purposes sought by the Crown on the basis that in my view the evidence does not have significant probative value. But in the circumstance that it might be assessed that part of the evidence of each complainant may have the relevant significant value, although other evidence pertaining to particular counts and contextual issues will not, the probative value of that evidence ultimately could not substantially outweigh the prejudicial effect of the giving of that evidence in the circumstances sought by the Crown. That is, a trial in which the two complainants are to give evidence before the one jury in respect of all matters relating to the alleged misconduct of the accused.

66. For those reasons I decline to permit evidence of one complainant to be admissible for the purposes of proving the relevant tendencies or a relevant tendency, identified in the tendency notice in respect of allegations made by another complainant.

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Decision last updated: 22 February 2017