RH v The Queen

[2014] HCATrans 282

[2014] HCATrans 282

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S146 of 2014

B e t w e e n -

RH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 DECEMBER 2014, AT 10.15 AM

Copyright in the High Court of Australia

MR M. THANGARAJ, SC:   Your Honours, I appear with MR R.J. STEWARD.  (instructed by Prime Lawyers)

MR L.A. BABB, SC:   I appear for the respondent, thank you, your Honour.  (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ:   Yes, Mr Thangaraj.

MR THANGARAJ:   Your Honours, we need an extension of time.

FRENCH CJ:   Is that opposed?

MR BABB:   Not opposed.

FRENCH CJ:   Yes.

MR THANGARAJ:   Thank you, your Honour.  What I propose to address your Honours firstly on is the differences between New South Wales and Victoria; secondly, the problems and the unfairness caused in this trial from the what we say incorrect tendency ruling; and, finally, errors of law and why leave ought be granted.

Could I start by taking your Honours to Velkoski which is in our bundle of authorities.  Velkoski was a case involving multiple complainants.  There were three complainants under the age of 16.  If I could start by taking your Honours to paragraph 22, which is on page 6 of that book, the fourth line down:

The tendency notice . . . conflated the tendency evidence and the conclusions to be drawn . . . The notice should not assert and the jury must not be instructed (as it was in this case) that the tendency is that the accused had a sexual interest in the complainants and that he acted upon his sexual interest by engaging in the sexual acts alleged by the complainants.

The court deals with that finally again later but if that is correct then the second tendency that was relied upon in our case ought not have been left to the jury.  So that is the first point of difference between New South Wales and Victoria.  If I could take your Honours more substantively now to paragraphs 33 and 34 on the following page of the book, after dealing with some legislative reform, the court said at the end of the first line:

Under the law as it stood in this State prior to the enactment of the Evidence Act, and under the Evidence Act itself, the entire subject broadly encompassed by the term ‘similar fact evidence’, has become exceedingly complex and extraordinarily difficult to apply. The situation is not helped when, as will be demonstrated, appellate courts fail to speak with one voice on this topic.

34       Currently there are undoubted differences between the decisions of this Court and the New South Wales Court of Criminal Appeal as to whether similarity of features need be present in order for evidence to be admissible as tendency evidence.

If I could ask your Honours to go to page 33 of that book at paragraph 163 under the heading “Conclusion”:

Where there is an absence of remarkable or distinctive features in the manner in which the offences are committed, the difference in the law as stated by this Court and the New South Wales Court of Criminal Appeal has left the law in a state of uncertainty as to the degree of similarity in the commission of the offences or the circumstances which surround the commission of the offences that is necessary to support tendency reasoning.  One line of authority has held that some degree of similarity in the acts or surrounding circumstances is necessary before it will be sufficient to support tendency reasoning.  Another line of New South Wales authority, that has not been followed in Victoria, has emphasised that tendency reasoning is not ‘based upon similarities,’ and evidence of such a character need not be present.  These lines of authority within each Court are not readily reconcilable.

164 Section 97(1)(b) is intended to address the risk of an unfair trial through the use of tendency reasoning by ensuring a sufficiently high threshold of admissibility. We consider the approach currently taken by the New South Wales Court of Criminal Appeal to tendency and coincidence goes too far in lowering the threshold to admissibility. To remove any requirement of similarity or commonality of features does not in our respectful opinion give effect to what is inherent in the notion of ‘significant probative value’. If the evidence does no more than prove a disposition to commit crimes of the kind in question, it will not have sufficient probative force to make it admissible. This view, we think, clearly represents the present position of our Court reflected in the long line of authority to which we have referred.

165     It is unfortunate that the law regarding tendency and coincidence evidence appears to have developed along divergent paths in New South Wales and Victoria.  In the meantime, and recognising that much of what we have said may be of historical interest only –

et cetera, and the court then deals with further matters with respect to Victoria.  Finally, in that authority, if I could ask your Honours to go to page 35, paragraph 179:

There are other areas of uncertainty associated with tendency and coincidence evidence.  These include, in particular, whether a court should assume both the truthfulness, and reliability, of the evidence in question when assessing its probative value.  There is a difference, it would seem, between the position in New South Wales (and Tasmania) on the one hand, and Victoria on the other.  In New South Wales, questions of credibility and reliability are said to play no role in the assessment of the probative value of the evidence sought to be led.  In Victoria, this Court’s decision in Dupas v The Queen . . . suggests that reliability, at least, is part of the equation when making the relevant assessment.

So, if leave is granted in this case, that conflict between the New South Wales position and the Victorian position in Dupas and Shamouil could also be address, apart from the other conflicts between what other requirements of tendency evidence for its prima facie admissibility. 

FRENCH CJ:   Can I just identify by reference to the grounds in the draft notice of appeal at page 215 the question of principle raised by each of those grounds?  Some of them on a reading just might be seen as particular to this case.  So the first one is to do with the evidence of Lisa, so that is ‑ ‑ ‑

MR THANGARAJ:   Yes, that is the final ‑ ‑ ‑

FRENCH CJ:   That is the final question.

MR THANGARAJ:   I am sorry, the final in time, your Honour. 

FRENCH CJ:   Yes, that is right, so the use of later evidence to indicate an earlier tendency.

MR THANGARAJ:   Yes, 15 years.

FRENCH CJ:   Yes, all right.  So what about the next one, “lowering the threshold for admitting tendency evidence”, what is that directed to?

MR THANGARAJ:   Well, we say that the evidence in this case because of the dissimilarities – the absence of striking similarity, there would have been a different result if it was dealt with in Victoria, and so it is part of the special leave question is the differences in approach.

FRENCH CJ:   How do you formulate that as a question of principle?

MR THANGARAJ:   Well, that could have been ‑ ‑ ‑

FRENCH CJ:   You say that some people take a more rigorous approach than others as an evaluative.  It does not sound much like a question of principle.

MR THANGARAJ:   The question of principle, your Honour, is what is required - whether or not this – the matters of similarity and the extent of similarity are threshold requirements in the way they are in Victoria but they are not here, and so that is why the court in Velkoski was at pains to point out, and there is a thorough analysis - actually in a more recent tendency case Justice Basten described the analysis in Velkoski as thorough and troubling. 

There is a clear difference between New South Wales and Victoria as to what constitutes tendency evidence, what is admissible in order to, and the principle therefore goes to what are the minimum requirements of the evidence before it can be admitted and that is why we say the threshold has been lowered in the way that Velkoski said New South Wales has lowered it impermissibly. 

FRENCH CJ:   All right.  Now, the one act?

MR THANGARAJ:   So if I could take your Honours to paragraph 44 of Velkoski which is page 8.  We find some support for what our position is but if I could just read that first, the second sentence:

That was because no ‘tendency’ could be established unless, and until, the jury were satisfied that the accused had committed at least some of the offences charged. 

So our submission is that one act cannot establish a tendency.  So if that is correct and one complainant could not establish a tendency, vis-à-vis other complainants, then ‑ ‑ ‑

GAGELER J:   That is a bit of a leap, is it not?

MR THANGARAJ:   Well, the question is whether a tendency is established.  So a person may have a particular attraction to an individual.  There are people that are married that start a relationship where one of the partners was younger than 18 and lived happily ever after.  The question then is whether the act or conduct in relation to an individual person – and it may be limited to one act, and in this case the jury was told that if they were satisfied of one act in relation to one complainant that may be capable of establishing a tendency which could be used, in this case, 15 years earlier.

But the issue is whether or not more than one offence is necessary to be proven beyond reasonable doubt to the minds of the jury before any tendency could be said to be established.  So that is a further question that we say that is important and arises and in relation to that issue we say that the Court in paragraph 44 was correct to say in Velkoski that the accused had to have at least committed some of the offences charged.

GAGELER J:   You read that as meaning more than one?

MR THANGARAJ:   Yes, that is right.  Tendency is - and no doubt, with respect, that is an important and controversial position across a number of jurisdictions and, in our submission, it is only really a question of when the court deals with tendency and 101, not a matter of if.

I will move onto the next topic.  The incorrect admission of the evidence in this case permitted the Crown to present a highly prejudicial case.  The methodology in both the opening and closing - and we took the Court of Criminal Appeal to this, the methodology was go to the evidence of Lisa, that is the admissions in relation to Lisa, and then rely on that and say, well, you will be satisfied of that beyond reasonable doubt and therefore you will find a tendency and you will then use that in relation to the complainants, even though they were years earlier. 

I do not propose to take your Honours to the opening, but what it was was that that conduct was detailed and then the complainant’s detail was presented.  If I could take your Honours to a couple of passages from the Crown closing, your Honours have just been given that material.  This is the way the Crown presented to the jury in final address.  At page 2, line 34:

So what evidence is it that the Crown relies upon as tendency evidence.  First of all we rely upon the admissions of the accused concerning what he did to [Lisa] -

All of this was cross‑admissible.  That was the basis on which it was admitted, but that is the very first thing the Crown went to.  Could I take your Honours over the page to page 3, line 31:

Now it is a matter for you how you proceed in your deliberations and which part of the evidence you want to consider first, but you might, for example, do it this way.  If you accept that the accused did one or any of the indecent acts which [Lisa] alleges he did, and I’d suggest to you that you must surely be satisfied beyond reasonable doubt that he did those acts because he’s admitted that he has . . . notwithstanding the denials he gave here in this witness box.  Members of the jury, he’s admitted that before a magistrate, he’s admitted again in a signed document which has been put before you in this trial, so you can be satisfied without any doubt that he committed those acts.  You can then look at what he did to [Lisa] and ask yourselves can we infer or conclude that those acts establish that the accused had a sexual interest in girls aged between 8 and 13, that he had a tendency to sexually indecently assault young girls who were in his care, and that he had a tendency to use his position as a foster father in order to gain access to young girls for the purpose of sexually and indecently assaulting them?

If you are satisfied that those acts which you know the accused committed upon [Lisa] do establish that he had that sexual interest, then you can use that when you come to consider whether the accused did the acts which are the subject of the charges concerning –

the other two complainants.  So they were being asked – they were being encouraged to look first at this ‑ ‑ ‑

FRENCH CJ:   The actions with respect to Lisa were put to the jury in the form of a statement of agreed facts.  Is that right?

MR THANGARAJ:   Yes.  What they were being asked to do and encouraged to do was to find that tendency existed for acts between 12 and 17 years before and, in our submission, what they were doing was being asked to assume that the tendency existed unlike a case where, when moving forward, such as SK, where the jury can deal with the first complaint in time, find that proven and then move forward with that tendency.

FRENCH CJ:   Do you say it is logically not open to infer a tendency at a time T1 by reference to acts at a time T2 – later time T2?

MR THANGARAJ:   In this case, there was a further problem that they were different complainants, but in a case where ‑ ‑ ‑

FRENCH CJ:   Just as a general proposition.

MR THANGARAJ:   It would be very difficult and a highly unusual circumstance where something 15 years - that a tendency could be established from conduct 15 years earlier.

FRENCH CJ:   But forget perhaps even the duration - that might be a jury question.  The question is whether it is logically open to find a tendency at a particular time by reference to acts at a later time.

MR THANGARAJ:   Almost never.

FRENCH CJ:   I asked the question is it logically open.

MR THANGARAJ:   Well, something could be the following week.

FRENCH CJ:   Yes.

MR THANGARAJ:   It could have been a relationship that existed for some time but the offending was later in the time period of the relationship.  I do not think it is a question that could ever be answered so black and white, but in circumstances such as this, and the temporal issue was the main part of the argument before the trial judge or the judge that dealt with this and Judge Finnane did not even mention the temporal argument in his Honour’s judgment.  So in this case it is certainly well past the point of being logically acceptable, and could I just take your Honours to ‑ ‑ ‑

GAGELER J:   Well, I do not quite understand the point.  Is the point that it is only one complainant or is the point a temporal point or is it a combination of those?

MR THANGARAJ:   They are separate points, your Honour, so the fact that, we say, a tendency cannot be established from a single complaint, unlike the way it was put to the jury – I will come to the summing‑up in a moment – but also the temporal point of – the Crown relied on Lisa to establish a tendency that would then be applied to conduct in relation to a different complainant 15 years earlier, that is not open.

FRENCH CJ:   This is all embedded in your ground 1.  Is that right?

MR THANGARAJ:   I think it might be sprinkled across ‑ ‑ ‑

FRENCH CJ:   Ground 2, I am sorry, at page 215, the ground I took you to before.

MR THANGARAJ:   Probably 7 as well because it is part of, we say, the – the jury was asked to assume that the tendency existed earlier rather than having been established on the evidence.  Could I take your Honours to the supplementary application book at page 82 - the numerical markings at the top of the page, 82 – page 37 of the closing address – at line 23 the Crown said this to the jury:

You would disregard him as a witness without credibility.  Why do I say that?  Because at the very beginning of his evidence, I suggested he had the sexual interest in the children.  He sexually and indecently abused girls in his care and he used his position of foster father in order to gain access to them.  He denied those things, one, two, three.  He had to deny those things because if he admitted those things, you would think he had the sexual interest and therefore he committed the acts upon [the first two complainants].  His problem was he has already admitted what he did to [Lisa].

GAGELER J:   Does this go to the question of admissibility?  You are taking us to passages in the closing address.  Your complaint is about the decision made on the voir dire, is it not?

MR THANGARAJ:   It is, your Honour.  The reason I was taking your Honours to that, and that is the final passage, was to let your Honour know how it was that the unfairness or the incorrect ruling affected the jury in the presentation of it.  The same thing was said in the summing‑up, so I will not take your Honours to that, but the conclusion of this was that this ruling permitted the jury to establish a tendency or to find a tendency in 1989 from conduct with a different person in 2003.

GAGELER J:   That is your temporal point.

MR THANGARAJ:   Yes, and from a single act.  It also permitted that an indecent assault in 2003 to be capable of establishing a tendency relevant to sexual intercourse with a different person more than 10 years earlier - that is the way it was left to the jury, and that is part of the problem with the New South Wales approach as opposed to the Victorian approach of more similarity is required and that is the point of principle.

GAGELER J:   What do you say the Victorian approach would have demanded in the present case?

MR THANGARAJ:   That the similarities in this case were not sufficient to allow cross‑admissibility.  The tendency evidence would not have been permitted and there would have been separate trials of the two complainants and Lisa would not have been a witness.

GAGELER J:   What greater analysis would have been engaged in?

MR THANGARAJ:   The underlying similarity would be one which was dealt with by the court, and I can take your Honours to that briefly in a moment.  The temporal matter, we say, but there is no authority about that issue.  We took the Court of Criminal Appeal to Dann, Watkins and Beserick and this case – this judgment undermines those Court of Criminal Appeal decisions because it misapplies SK and in Dann, Watkins and Beserick there was discussion by the Court of Criminal Appeal’s various judges by saying subsequent activity is much less weighty than previous activity. 

This was not a case at trial run as if the tendency was sequential and yet that is what her Honour Justice Ward found was the Crown case at trial, that it was sequential, but that was not – it was the way it was presented on appeal and that is part of the reason why I have taken your Honours to the passages of how the Crown dealt with it because the Crown asked the jury to reason backwards in time.  It was an error by her Honour Justice Ward to find that the Crown ran a sequential tendency point below.  They did not. 

That is why in 50 pages of written submissions which are in a supplementary application book from the Crown below SK was only mentioned in a broad general tendency prejudice context, nothing to do with the temporal issue, nothing to do with being sequential.  It was not the way it was argued on the voir dire and it was not the way the trial was run.  But the way the trial was run meant that it was almost impossible for the accused to give evidence with a reasonable prospect of the jury accepting or being even prepared to listen to the other two complainants. 

The fact there was no acquittal on count 6 is a good example of that, but in any case, the way the jury was presented the case by the Crown was you would find this because of Lisa and then put that – hold that against him in relation to the much earlier complaints and the onus effectively shifted to him to explain why Lisa was a one‑off victim.

Could I just finally address your Honours briefly on why we say - the other errors of law and why leave ought be granted? When this Court does deal with section 97 it really would need to look at 101 as well, the mandatory exclusion. The facts of this case permit the proper consideration of 101 for a number of reasons – concoction, contamination and collusion – and I will come to that in a moment, the probative value of the evidence and therefore the Victorian, New South Wales approach to similarity.

Could I just take your Honours briefly to the judgment at application book 159, at paragraph 139 - this comes under the heading “Difference in nature of the acts”, which is part of our complaint:

There were certainly differences in the particular acts of which the respective complainants gave evidence, the most marked of which was the lack of digital penetration of two of the three complainants and the fact that the appellant was not said to have –

et cetera, et cetera.  Then what her Honour said was:

What is common to all of the counts is that there was inappropriate touching of some kind of the body –

With the greatest respect ‑ ‑ ‑

FRENCH CJ:   You say that is not good enough.

MR THANGARAJ:   No.

FRENCH CJ:   All right, we understand that point.

MR THANGARAJ:   Then over the page:

Furthermore, other than the unproven count involving Jane, each of the acts took place in a bed –

and some of them at night and some of them after certain meetings.  None of those have anywhere near the requirement of the similarity that is then found in the following paragraph being “overwhelming similarity in the circumstances” justifying admission.  So this Court can then – this is a vehicle to deal with the Victorian and New South Wales approach.  There is a very detailed analysis which will benefit this Court from Velkoski. 

The prejudice of the plea, the way that was dealt with and whether that reversed the onus, and the additional prejudice by that because it was last in time and involved reasoning backwards and, in our submission, something as prejudicial as a plea being allowed to be given really requires extremely high probative value to get over the 101 test and in our case with the temporal problem and in any case the differences between the various conduct it could never exceed that level and that would be a consideration of whether Pfennig would apply and ‑ ‑ ‑

FRENCH CJ:   Now, Mr Thangaraj, I have let you run well over time.

MR THANGARAJ:   Sorry, your Honour.

FRENCH CJ:   We have your written submissions, of course, in relation to the other matter and contamination and concoction.  I think we will hear from Mr Babb now.

MR BABB:   Your Honours, this is not a case that highlights any difference in approach between New South Wales and Victoria.  If I could take your Honours to the similarities that were relied on by the prosecution, they are in the supplementary application book at page 26 and these were the written submissions before the judge who determined the voir dire.  It is set out in table form and it sets out the marked similarities in conduct, circumstance and situation that applied across all the cases. 

The second row in the table relates to the similarity in age.  The similarity in the relationship is the next row in the table.  Why the conduct stopped is the next row in the table.  The fact that the incidents took place in the bedrooms of the respective complainants is the next row in the table.  The timing is the next row in the table.  Two of the complainants said that they occurred regularly after the applicant got home from Lions Club meetings, they were in bed.  It is a series of marked similarities.

FRENCH CJ:   …..distinction between modus operandi and tendency?

MR BABB:   Circumstances and relationship are still relevant to the tendency and the similarity of conduct and go to state of mind, your Honour.  The relationship, the means of offending go both to the particularity of the acts and the state of mind.  Now, in this case the evidence that established the tendency was properly available in relation to an act later in time.  That act was not impermissibly prejudicial.  The fact that it was a plea of guilty makes it more reliable and there was material beyond the ‑ ‑ ‑

FRENCH CJ:   Questions of reliability do not enter into it, do they, where there was a statement of agreed facts?

MR BABB:   No, no, except in this case, your Honour, that despite the statement of agreed facts having been challenged, the applicant disputed some of the incidents.  So he accepted that some of them had occurred and disputed that some of the incidents listed in the statement of agreed facts had occurred.

GAGELER J:   Do we actually have the statement of agreed facts?  I do not know that we do.

MR BABB:   No, your Honours, but they are actually set out in the supplementary application book, starting at page 22.  So they are on pages 22 and 23, the numbering at the top of the supplementary application book.  So they were set out in full in the Crown’s submissions to the judgment on the voir dire. 

FRENCH CJ:   Yes.

MR BABB:   The things that were later disputed from the agreed facts were the second incident of placing the mouth over the breast of the complainant which was offence 2, and then the second‑last paragraph, the touching of the vagina, which was not a charged matter that was part of the agreed statement of facts. 

In addition to this material, your Honours, was the very strong evidence that came from the natural daughter of the applicant and the son‑in‑law of the applicant about a family meeting that took place after Kay and Lisa ran away from home, came to their house, complained of being sexually assaulted by the applicant and it was a discussion where a protocol was developed as to how to control the future behaviour of the applicant.

It is discussed in the Court of Criminal Appeal decision in the application book at page 137, and paragraph 58 outlines the significance of that discussion.  It was a meeting that the applicant was present at at the time that the discussions and the protocols and the discussion of locks being put on the girls’ doors was discussed.  So there was evidence beyond an individual complainant and beyond the agreed statement of facts that all went to the tendency that was ultimately at least available to the jury if they followed the process of reasoning that was set out.

That process of reasoning was not impermissibly held to be necessarily sequential by Justice Ward and the court in the Court of Criminal Appeal and that is made clear at paragraph 172 of the Court of Criminal Appeal’s judgment, page 170 of the application book and, with respect, it was a non‑controversial application of established principles in relation to tendency evidence in this case, a case that was incredibly strong when one looked at the reliability of the offending against Lisa in light of the plea of guilty and the agreed statements of facts.

The possibility of concoction which is raised as one of the possible bases upon which a grant of special leave should be made was no real possibility at all in this case.  The judge on the voir dire heard evidence from Jane, Kay, Lisa, the wife of the applicant, the natural daughter and the son‑in‑law and he concluded, having heard that evidence, that there was nothing even vaguely raised raising the possibility of concoction in this case.

That is not surprising because there was such strong evidence of earlier complaint prior to any knowledge of offending against any other girl in relation to each of the complainants.  In relation to the first in time, Jane, she disclosed to the son‑in‑law well before there was any complaint by Kay or Lisa that she had been inappropriately touched. 

Similarly, Kay complained about the applicant inappropriately touching her three to four years before Lisa complained and thereafter Lisa complained.  This was not a case where there was any real possibility of concoction and the decision on the voir dire that nothing even vaguely

raised that possibility was clearly correct in all the circumstances of this case.

FRENCH CJ:   What do you say about the single act complaint?  In other words, the evidence was brought in on the basis that a single act could be relied upon rather than a requirement that the jury take, as it were, a combined approach to it.  That is, I think, paragraph 29 in the applicant’s submissions.

MR BABB:   In this case, your Honour, that really is not a live issue because Lisa has – there has been a plea of guilty entered into five acts against Lisa and so there is a course of conduct in relation to that complainant.  Despite the Crown submitting that you could look at acts or an act, it simply does not arise in this case.  There is that overwhelming evidence in relation to Lisa of a plea of guilty in relation to five separate acts and so it is not a point for the grant of leave because of the facts of this case.  They are my submissions, thank you.

FRENCH CJ:   Thank you very much.  Yes.

MR THANGARAJ:   Your Honour, the issue with contamination and concoction was dealt with - if I just firstly take your Honours to Velkoski at page 34 of the authorities book, paragraph 173 where the court distils its final principles:

(c)      As the law currently stands, the finding, in any case involving multiple complainants, that it is ‘reasonably possible’ that there may have been ‘concoction’, ‘collusion’, ‘collaboration’ or ‘contamination’ among them renders tendency or coincidence evidence inadmissible.

Could I then take your Honours to the judgment in this case at page 165 of the application book?  The court here said:

There is no doubt that there was opportunity for contamination of evidence –

and your Honours just heard about a meeting –

however, [two of the complaints] were adamant that no detail was exchanged –

With respect, that is not the correct test and it is not the test that is proposed in Velkoski.  You do not descend into a determination of the facts to determine whether there was actual disclosure, that is why it is no finding of

fact of contamination that is the test that is proposed in Velkoski, or found to exist in Velkoski, and it was, with respect, not applied correctly here.

GAGELER J:   Well, the same paragraph (c) in Velkoski that you took us to concludes with two sentences:

There must be a basis, in the evidence, for any such conclusion, beyond mere opportunity for it to have occurred.  Mere ‘speculative suggestion’ will not afford any such foundation.

MR THANGARAJ:   That is right, and in this case, your Honour, with respect to contamination - your Honour has just been taken to the fact that there was a meeting and discussion.  My friend relies on these admissions and quasi admissions.  That was the opportunity.  It goes further than the final two sentences.  That is why the first two sentences are important.  That is why I took your Honour to the acceptance in the Court of Criminal Appeal that there was opportunity for contamination of evidence and there was no doubt – I think we put in our submissions one of the complainants said he did conduct X to me, the other one said he did that to me as well. 

That was evidence in the trial, so it is far beyond speculation.  That evidence was there.  So the Court of Criminal Appeal in this case did not apply, with respect, a proper test and my friend says the court applied established principles but that begs the question of two things:  are the principles correct but, more importantly, which jurisdiction? 

Finally, with respect to the point that my friend made about one act and there are multiple admissions in relation to the final witness, there are a couple of things.  Firstly, the accused did not admit all of them in the evidence but that is probably not a relevant issue.  The issue is what was put to the jury?  What was put to the jury was you have heard the accused say that he did not accept everything in the statement of facts but you only need to be satisfied of one act.  That is what this case stands for. 

In another case there might be a solitary admission, but on the precedent that is put by the Court of Criminal Appeal that would be sufficient.  So the facts that my friend has relied on in his address do not stand in the way of the principles that, with respect, this Court needs to consider, and these principles apply to all offences.  It is not just sexual assault.  They will apply to any form of offence where a tendency notice is relied upon.

FRENCH CJ:   Thank you, Mr Thangaraj. 

The applicant seeks special leave to appeal from a decision of the Court of Criminal Appeal of New South Wales dismissing an appeal against his conviction in the District Court for a number of child sexual offences committed between 1989 and 2003. The principal question sought to be raised is whether evidence of other child sexual offences committed in 2005 and 2006 was properly admitted as tendency evidence having regard to the restrictions on admissibility imposed by sections 97 and 101 of the Evidence Act 1995 (NSW).

We see no reason to doubt the correctness of the conclusion of the Court of Criminal Appeal that the evidence of the later offences had significant probative value, despite temporal and other differences, and that any risk of contamination or concoction was not sufficient to warrant its exclusion.  The case in our opinion does not provide a suitable vehicle for consideration of any broader issue of principle.  The application for special leave is refused.

The Court will now adjourn to reconstitute.

AT 10.54 AM THE MATTER WAS CONCLUDED