The King v Poole - [2023] NTSC 84

CITATION:The King v Poole [2023] NTSC 84
PARTIES:THE KING

v
POOLE, Andrew

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:22029228
DELIVERED:  27 September 2023
HEARING DATE:  8 September 2023
JUDGMENT OF:  Kelly J

CATCHWORDS:
Criminal Procedure Act 1986 (NSW), s 161A
Evidence (National Uniform Legislation) Act 2011 (NT), s 97(1)
Dempsey v The Queen [2019] VSCA 224; DS v R [2018] NSWCCA 195; Gardiner v R [2023] NSWCCA 89; Hughes v The Queen [2017] HCA 20; JS v R [2022] NSWCCA 145; R v Carroll [2002] HCA 55; 213 CLR 635; Rassi v R [2023] NSWCCA 119; The King v Hennessy [2023] NTSC 67; The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40, referred to
REPRESENTATION:
Counsel:
Crown:S Lapinski
Accused:P Crean
Solicitors:
Crown:Director of Public Prosecutions
Accused:Northern Territory Legal Aid Commission
Judgment category classification:    C
Judgment ID Number:  Kel2305
Number of pages:  26

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The King v Poole [2023] NTSC 84

No. 22029228

BETWEEN:

THE KING

AND:

ANDREW POOLE

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 27 September 2023)

The defendant is charged with one count of possessing child abuse material, three counts of intentionally recording an indecent visual image of TO, a child under the age of 16, and one count of attempting to record a visual image of TO, a child under the age of 16. Count 1 relates to the retention of images the subject of counts 2, 3 and 4 on the defendant’s phone (“the child abuse material charges”).
By a Tendency Notice (“the Notice”) dated 26 August 2022 the Crown has given notice pursuant to s 97(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) (“ENULA”) that it intends to adduce tendency evidence at the trial of the accused. The Notice states that the proposed tendency evidence relates to the following facts in issue:
(a)Whether on 15 October 2014, the accused intentionally recorded indecent visual images of a child, TO, at a time when TO was wearing a swimming suit.
(b)Whether on 15 October 2014 the accused attempted to record indecent visual images of TO by setting up a covert recording device in a bathroom at an address in Alice Springs with the expectation that TO would go into the bathroom and that video footage of her unclothed body would be recorded.
(c)Whether between 15 October 2014 and an unknown later date in December 2014 the accused deliberately retained the indecent images recorded on 15 October 2014.
The tendency sought to be proved by adducing the tendency evidence is the tendency of the accused to:
(a)act in a particular way, namely to engage in activity to satisfy his sexual attraction to TO; and
(b)have a particular state of mind, namely a sexual interest in TO when she was a child aged 7 to 12 years.
The accused opposes the application to lead tendency evidence.
The Crown intends to prove the acts relied on as tendency evidence by playing the recorded evidence of TO given at the trial of the defendant on the following charges in Alice Springs in 2020:
Count 1
Between 1 January 2009 and 31 December 2010 at Alice Springs in the Northern Territory of Australia, indecently dealt with TO, a child under the age of 16 years AND THAT the indecent dealing involved the following circumstance of aggravation, namely,
(i)that TO was under the age of 10 years, namely 5 to 7 years of age.
Section 132(2)(a)&(4) of the Criminal Code.
Count 2
Between 1 January 2011 and 31 December 2011 at Alice Springs in the Northern Territory of Australia, had sexual intercourse, namely digital-vaginal penetration, with TO without her consent and knowing about or being reckless as to the lack of consent.
Section 192(3) of the Criminal Code.
Count 3
Between 1 January 2011 and 31 December 2011 at Alice Springs in the Northern Territory of Australia, had sexual intercourse, namely fellatio, with TO without her consent and knowing about or being reckless as to the lack of consent.
Section 192(3) of the Criminal Code.
(“the sex offences trial”).
Following the sex offences trial, the defendant was found guilty of count 3 and not guilty of counts 1 and 2.
The defence’s objection to the reception of this evidence on the trial of the child abuse material charges (“the child abuse material trial”) was heard before Burns J and in a decision dated 8 March 2023, Burns J decided that the evidence should be admitted.
The child abuse material trial is listed before me for one week beginning on 13 November 2023.
The defence has partially renewed its objection to the reception of the tendency evidence. While conceding that TO’s evidence relating to the charge on which the defendant was found guilty was properly admitted, defence contends that the evidence relating to the two charges on which the defendant was found not guilty should not be admitted because to do so would be to traverse the not guilty verdicts on those two charges.
The learned prosecutor contends that it is not now open to the defendant to take objection on this ground since the issue was raised briefly before Burns J and the defence made a forensic decision not to take the point at that time.
If this were an appeal, that would be a valid point, but this is not an appeal. A trial judge has an overarching duty to ensure a fair trial and if an objection to evidence is taken then the trial judge has a duty to rule on it, notwithstanding that another judge may have ruled on it earlier. Having said that, these sorts of applications ought not be encouraged and it is especially unfortunate that an objection is being taken at this time on this ground when a forensic decision was made, by then counsel for the defence, not to argue this point before the judge who first heard the objection.
The defence contentions
The defendant contends that to admit evidence of the acts said to constitute the two charges on which the defendant was found not guilty at the sex offences trial would traverse the not guilty pleas.
The defence relies on R v Carroll[1] for the general proposition that a verdict of not guilty is incontrovertible in future criminal proceedings, and contends that to allow in as tendency evidence in the child abuse material trial, evidence relating to the charges on which the defendant was found not guilty in the sex offences trial, would violate the incontrovertibility principle, essentially inviting re-litigation of those charges.
In Carroll, the High Court stayed a criminal prosecution for perjury against a defendant who had been found not guilty of murder. The perjury charge was for giving false evidence that he had not killed the victim in the murder trial, and the Court held that to allow the perjury trial to go ahead would controvert the not guilty verdict in the murder trial. The central issue on both charges being whether the defendant killed the victim, the perjury case was, in practical effect, a re-trial for murder.[2]
However, the Court in Carroll specifically restricted the application of the principle noting:[3]
In many cases the question has been whether evidence of what are alleged to be the accused's earlier crimes (for which the accused has stood trial and of which he or she has been acquitted) may be led as similar fact evidence in a later trial for a different offence. There the issue is not whether there can be a trial of the charge preferred in the later indictment but what evidence may be led in proof of that charge.
The Court observed further:[4]
[A] jury’s finding of guilt depends upon the jury being satisfied beyond reasonable doubt that all elements of the charged offence have been proved, whereas the jury that entertains a reasonable doubt about any one of the elements of the offence is bound to acquit. Seldom, if ever, therefore, can a verdict of acquittal be understood as some positive finding by the jury in favour of the accused about any of the issues that may have been contested at trial.
The issue was considered by the New South Wales Court of Criminal Appeal in DS v R.[5] Basten JA said:[6]
The question of inadmissibility involves three steps. First, there is the principle that a prosecutor cannot rely upon conduct which has been the subject of a previous charge and acquittal in a way which would controvert the acquittal. The scope of that principle will depend upon the basis of the acquittal. In cases which have been tried before a jury, an acquittal may reveal no more than that the jury was not convinced beyond reasonable doubt as to some element of the offence.[7]
…
[T]he acquittal with respect to the earlier offence does not necessarily mean that the conduct the subject of the charge may not be relevant and admissible in a subsequent criminal trial for a different offence. However, to ensure that the evidence is not used in a manner which controverts the acquittal, it is necessary to have careful regard to the basis upon which it is to be presented to the jury. If, as in the present case, it is relied on as tendency evidence, it will be necessary to consider the operation of s 97 and s 101 of the Evidence Act 1995 (NSW). [citations omitted]
The defence argues that in these particular circumstances, allowing in the evidence of the acts constituting the charges on which the defendant was acquitted would in fact be to re-litigate the sex offences trial since the issue would be the same (Did the defendant perform those acts?) and the jury would have to be satisfied beyond reasonable doubt that he did before they could take them into account as tendency evidence.
The prosecutor, Mr Lapinski, contends that the following principles emerge from the authorities.
(a)The Crown cannot rely on evidence of acts which have been the subject of a previous charge and acquittal in a way which would controvert the acquittal.[8]
(b)However, the Crown may rely on evidence which might have the incidental effect of casting doubt upon an earlier acquittal providing it does not controvert the acquittal.[9]
(c)It has long been recognised that “similar fact evidence”, now known as tendency evidence, is such a category of evidence.[10]
(d)There are sound reasons why, generally, evidence of conduct which has been the subject of an acquittal can be tendered as tendency evidence at a subsequent trial without contravening the “incontrovertibility principle”.
(i)The mere fact that a jury returns a verdict of not guilty to a charge merely means that the jury were not satisfied beyond reasonable doubt of one or more elements of the charge. Seldom, if ever, can a jury’s verdict of acquittal be understood as a positive finding that the person did not perform the acts the subject of the charge.
(ii)Tendency evidence does not need to be proved beyond reasonable doubt.
While not taking issue with the majority of these general propositions, defence counsel has contended that tendency evidence does have to be proved beyond reasonable doubt before it can be used as proof of the alleged tendency if it consists of “charged acts”. As far as I understand it, the defence position is that, because they are “charged acts” the jury will have to be satisfied beyond reasonable doubt that the defendant committed the acts which were the subject of the acquittals before they are permitted to take them into account as evidence of the alleged tendency. Hence the issues in relation to the tendency evidence will be the same as the issues in the sex offences trial; the jury would be invited to re-litigate the issues in the charges on which the defendant was acquitted in considering the tendency evidence.
This contention is based on the assumption that the acts in question (ie those the subject of the acquittals) are “charged acts”. That contention cannot be accepted. The acts which were the subject of the charges in the sex offences trial of which the defendant was acquitted are not the subject of charges on the indictment in the child abuse material trial.
During the hearing of the voir dire defence counsel appeared to accept that the acts the subject of the acquittals were not “charged acts” in the present trial, but nevertheless maintained that this is one of those rare cases in which the jury would need to be satisfied beyond reasonable doubt of the evidence relating to the charges in the sex offences trial on which the defendant was acquitted before they could take that evidence into account as proving the alleged tendency. The basis for this contention was not entirely clear to me, but defence counsel submitted that the jury would treat the evidence of the acts the subject of the acquittals as if they were charged acts, and that, therefore, they should be proved beyond reasonable doubt before they could be used as tendency evidence. Why the jury would do so was not satisfactorily explained. I note that defence counsel persisted with this submission even after the prosecutor advised that the jury would not be told about the sex offences trial, the conviction or the acquittals.
The authorities relied on by the defence for the contention that the jury must be satisfied of the conduct in the “charged acts” beyond reasonable doubt before they can use them as tendency evidence (and there are other authorities to the contrary) are referring to acts which are the subject of charges in the same trial. They must refer to charges that are to be tried in the trial for which the tendency evidence is adduced because the rationale behind the proposition is that it would be anomalous (or at least confusing to the jury) to have to consider the same issue twice in one proceeding using different standards of proof. (See the extract from JS quoted at [27] below.) There is no support in any of the authorities for the proposition that conduct must be proved beyond reasonable doubt before it can be used as tendency evidence simply because it may have been the subject of a charge in another proceeding altogether; nor is there any logical reason why that should be so; nor would such an approach be consistent with ENULA s 97 which contains no such limitation.
For the purpose of tendency evidence in this proceeding the acts the subject of the previous acquittals are “uncharged acts”. The prosecutor has advised that the jury will not be told about the earlier sex offences trial and contended that the Crown would not be permitted to do so.
In relation to the onus of proof of “uncharged acts” adduced to prove a tendency in the accused, the High Court in R v Bauer said:[11]
No error is shown, either, in relation to the trial judge’s course in not warning the jury that they needed to be satisfied of uncharged acts beyond reasonable doubt. Ordinarily, proof of the accused’s tendency to act in a particular way will not be an indispensable intermediate step in reasoning to guilt. And, in Victoria, the common law rule attributed to Shepherd v The Queen, that in an appropriate case a jury should be directed that it must be satisfied beyond reasonable doubt of an indispensable fact, and the rule attributed to R v Sadler, that a jury must be directed that it must be satisfied beyond reasonable doubt of uncharged acts that the jury may use as a step in their process of reasoning towards guilt, have been abolished by s 62 of the Jury Directions Act. The trial judge did, however, and quite properly, specifically direct the jury as to how the evidence of uncharged acts could be used, as demonstrating a sexual attraction of the respondent to RC and a tendency to act upon it as the occasion presented, and equally that, if the jury were not satisfied beyond reasonable doubt that the act alleged in a particular charge occurred, they were bound to acquit the respondent of that charge. Further, as has been observed, her Honour specifically directed the jury that they could not substitute evidence of other charges or other alleged activity, or a conclusion that the respondent had a sexual interest in RC, for what was alleged in the particular charge. There is no reason to suppose that the jury failed to heed those directions. [citations omitted]

The Court said further:[12]
86 ... Contrary to the practice which has operated for some time in New South Wales, trial judges in that State should not ordinarily direct a jury that, before they may act on evidence of uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt. Such a direction should not be necessary or desirable unless it is apprehended that, in the particular circumstances of the case, there is a significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt. And, as explained earlier in these reasons, a trial judge is precluded from giving such a direction in Victoria.” [Footnotes omitted and emphasis by underling added.]
Bauer was a case specifically concerning the use that can be made of uncharged acts as tendency evidence.[13] However, the reasoning would seem to be equally applicable to charged acts. In JS the New South Wales Court of Criminal Appeal held[14] that neither charged nor uncharged acts need to be proved beyond reasonable doubt before they can be used to prove the alleged tendency, citing Bauer and Shepherd v The Queen,[15] and referring to the following passage in the judgment of Gleeson CJ in HML v The Queen:[16]
29 It is the elements of the offence charged that, as a matter of law, must be proved beyond reasonable doubt. (I leave aside presently irrelevant cases where insanity or some other defence is raised.) If evidence of a fact relevant to a fact in issue is the only evidence of the fact in issue, or is an indispensable link in a chain of evidence necessary to prove guilt, then it will be necessary for a trial judge to direct a jury that the prosecution must establish the fact beyond reasonable doubt; generally, however, the law as to standard of proof applies to the elements of the offence, not particular facts. ... Trial judges commonly, and appropriately, direct juries in terms of their possible satisfaction of particular matters relied upon by the prosecution, without referring to a standard of proof in relation to each such matter. To do otherwise would risk error.
Basten AJA (with whom Hamill J and Dhanji J agreed) continued:[17]
In principle, the same reasoning applies to cross-admissible evidence of charged acts. It is not easy to envisage a circumstance in which the commission of one offence against a victim will be an indispensable step in the reasoning that the other offence was committed. Accordingly, in principle it will usually be correct (and was correct in the present case) to say that, in assessing one charge, the jury could take into account the evidence of the activity said to constitute the other charge, without being satisfied at that point that it was proved beyond reasonable doubt...
…
In relation to the objection that this approach would involve the jury considering the same issue twice applying different standards of proof, Basten AJA said:[18]
Insofar as the applicant complained that the reasoning was “incoherent”, this was premised on the assumption that the Crown, in a linear process, sought to prove the commission of an offence (at a standard of proof less than beyond reasonable doubt), and then relied on that finding to prove the tendency, and then relied on the tendency to prove the offence. It is the tendency that is relied on as circumstantial evidence in proof of the charge on the indictment. The proper approach is to have regard to all the evidence ... relied on in proof of the tendency as evidence of the tendency alleged. To the extent that the jury is satisfied of the existence of the tendency, the tendency may be relied on in proof of the charge. Given this process, it is preferable not to direct a jury to make findings as to the conduct relied on in proof of a charge. Rather the jury should be directed with respect to finding the alleged tendency. [citations omitted]
I respectfully agree with that analysis.

One potent argument against holding that charged acts must be proved beyond reasonable doubt is that in cases where the tendency is sought to be established solely by reference to charged acts (whether in relation to a single complainant or cross-admissible evidence of more than one complainant) insistence on proof of each charged act beyond reasonable doubt before they can be used as evidence of the existence of a particular tendency in the accused, would deprive the tendency evidence of all utility.
This point was made by the New South Wales Court of Criminal appeal in Gardiner v R.[19] In that case the appellant was found guilty of a number of child sex offences against a number of complainants. The trial judge admitted the evidence of each complainant as tendency evidence in the case relating to the other complainants. In finding the appellant guilty, the trial judge found that the evidence of each complainant supported a finding that the accused had the alleged tendency and this in turn supported the judge’s findings that the appellant committed the alleged acts committed against each of the complainants. His Honour found that the tendency evidence removed any reasonable doubt as to whether the appellant did the alleged acts that might have subsisted when the complainant’s evidence was regarded in isolation.
The appellant appealed, arguing that it was erroneous for the trial judge to use the evidence of one complainant in respect of a particular count as tendency evidence in support of the charge in relation to the other complainant without first finding that the count in relation to the first complainant had been proved beyond reasonable doubt.
The New South Wales Court of Criminal Appeal rejected this submission, relying on the decision and reasoning of Basten JA in JS.[20] In doing do, the Court said:
One of the difficulties with Mr Game’s submission is that, if accepted, it would deprive tendency evidence of the forensic force which long-standing authority has established that it has. Suppose ten children said that each had been sexually assaulted in similar circumstances by a particular accused and the accused was charged with all ten counts on a single indictment. On Mr Game’s argument, the evidence of one child could not be used as tendency evidence in respect of the charges concerning any of the other children if none of the children’s evidence, by itself, could prove the charge beyond reasonable doubt. If the accused’s indictment contained only five counts and the remainder were relied on as tendency evidence, the remainder would not need to be proved beyond reasonable doubt to be used as tendency evidence (in accordance with The Queen v Bauer (a pseudonym) [(2018) 266 CLR 56; [2018] HCA 40 (Bauer)] – see the discussion below) but none of the evidence of any of the five counts could be used in support of the other counts unless it established the accused’s guilt beyond reasonable doubt.
The same point was made by Grant CJ in R v O’Brien.[21] His Honour set out the relevant directions to be given to the jury in relation to tendency evidence,[22] and added in a footnote:[23]
There is an unresolved issue concerning the content of the direction in this respect and, ultimately, the utility of tendency evidence in these circumstances. Until it is authoritatively decided otherwise, the standard of proof for tendency evidence in child sexual assault cases is proof beyond reasonable doubt: see DJV v R (2008) 200 A Crim R 206 at [30]; Doyle v R [2014] NSWCCA 4 at [129]; Campbell v R [2014] NSWCCA 175 at [259], [325]–[333]. Where the evidence in question concerns the commission of charged acts involving a first complainant said to demonstrate a tendency relevant to the proof of charged acts concerning a second complainant, it may not be used for that purpose unless the prosecution has proved the act(s) involving the first complainant beyond reasonable doubt. In so doing, it would not be open to the jury to use charged acts concerning the second complainant for tendency purposes unless they have also first been proved beyond reasonable doubt. On that analysis, the charged acts in respect of one complainant would need to be proved beyond reasonable doubt – without recourse for tendency purposes to any alleged dealing concerning the other complainant – before those acts could be deployed as tendency evidence; and vice versa. If that analysis is correct, it would arguably render the evidence inutile for tendency purposes in any practical sense.[24]
The New South Wales cases involved the application of s 161A of the New South Wales Criminal Procedure Act 1986 which provides:
161A DIRECTION NOT TO BE GIVEN REGARDING TENDENCY OR COINCIDENCE EVIDENCE
(1) A jury must not be directed that evidence needs to be proved beyond reasonable doubt to the extent that it is adduced as tendency evidence or coincidence evidence.
(2) If evidence is adduced as both tendency evidence or coincidence evidence and as proof of an element or essential fact of a charge before the jury, the jury may be directed that the evidence needs to be proved beyond reasonable doubt, but only to the extent that it is adduced as proof of the element or essential fact.
The Victorian case of Bauer also involved a legislative clarification of the standard of proof. Sections 61 and 62 of the Jury Directions Act 2015 (Vic) provide that the only matters that the trial judge may direct the jury must be proved beyond reasonable doubt are the elements of the offence and the absence of any relevant defence;[25] and that any rule of common law under which a trial judge in a criminal trial is required to direct the jury that a matter, other than a matter referred to in s 61, must be proved beyond reasonable doubt is abolished.[26]
However, in my view, these legislative provisions simply reinforce what would be the case in any event, as a matter of logic. Tendency evidence is a species of circumstantial evidence. It is well established that, unless the piece of circumstantial evidence under consideration is an indispensable link in the chain of reasoning leading to a conclusion of guilt, each piece of circumstantial evidence is not considered in isolation and does not need to be proved beyond reasonable doubt. An inference of guilt can be drawn from a combination of facts which, when viewed as a whole, persuade the jury that the inference should be drawn. It may be that no conclusion can be drawn by looking at each fact separately, but when the facts are looked at together, in the light of all the circumstances of the case, the jury may be satisfied that an inference of guilt may properly be drawn from those facts. The probative force of the combination of facts looked at together has a cumulative effect.[27]
This applies to the jury’s consideration of tendency evidence. The first question the jury is asked to consider is whether the evidence relied on by the Crown as tendency evidence proves that the accused had the alleged tendency. As the High Court said in Hughes v The Queen:[28]
The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue.
...
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. ... 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.[29]
The test posed by s 97(1)(b) is as stated in Ford: “the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged”. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged.[30]
Section 97(1) provides:
The 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 adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
The reference in s 97(1)(b) to “having regard to other evidence adduced or to be adduced” is incompatible with the need to be satisfied of each act making up the alleged tendency to be proved beyond reasonable doubt at the point of considering whether the accused has the relevant tendency. The test posed by s 97(1)(b) is whether the disputed evidence, together with other evidence, makes significantly more likely any facts making up the elements of the offence charged. This is stated explicitly in Hughes at [40] – set out above.
This is also apparent in the Court’s reasoning on the facts in Hughes:[31]
Considered in isolation, JP’s evidence might have seemed inherently unlikely: the appellant, a family friend, at dinner in JP's home, absented himself from the party and came into her bedroom, and without making any attempt to ensure her silence, commenced to invasively sexually assault her while his daughter lay sleeping in the same bed. The jury might well be disinclined to accept JP’s evidence as satisfying it, beyond a reasonable doubt that the appellant had, in fact, engaged in conduct which was so much at odds with the jury’s experience of the probabilities of ordinary human behaviour. Proof of the appellant’s tendency to engage in sexual activity with underage girls opportunistically, notwithstanding the evident risk, was capable of removing a doubt which the brazenness of the appellant’s conduct might otherwise have raised.
The force of the tendency evidence as significantly probative of the appellant’s guilt was not that it gave rise to a likelihood that the appellant, having offended once, was likely to offend again. Rather, its force was that, in the case of this individual accused, the complaint of misconduct on his part should not be rejected as unworthy of belief because it appeared improbable having regard to ordinary human experience.
As explained above, there are two matters which must be considered. The first matter, involving the extent to which the evidence supports a tendency, does not require that the evidence be considered “by itself”. In the words of s 97(1), the evidence of either “conduct” or “a tendency” can be used to determine the tendency relied upon by “having regard to other evidence adduced or to be adduced”. In other words, evidence of a tendency might be weak by itself but its probative value can be assessed together with other evidence.
This point can be illustrated by reference to an example given by the appellant in oral submissions, which was that there was a “world of difference” between the evidence concerning EE (count 10), who was 15 years old and whom the appellant encouraged to commit indecent acts in a park and in a driveway, and the evidence concerning SH (counts 3 to 6), which involved intrusive acts “in a darkened bedroom, in her bed, when she was only six, seven or eight”. One problem with this comparison is that it ignores the fact that in relation to, for example, count 4, involving SH, the evidence of EE needed to be considered together with the evidence involving (i) counts 1 to 3 and counts 5 to 11, (ii) uncharged acts relating to the complainants SH, JP, AK and SM, and (iii) uncharged acts relating to the tendency witnesses VOD, AA and BB. Indeed, one of the appellant’s concessions on this appeal was that the tendency evidence from counts 1 to 2 (JP) and 3 to 6 (SH) was cross-admissible. This evidence, which was conceded to be admissible, reinforced the other tendency evidence. When considered together, all the tendency evidence provided strong support to show the appellant’s tendency to engage opportunistically in sexual activity with underage girls despite a high risk of detection.
The probative value of the evidence of each complainant and of AA, BB and VOD lay in proof of the tendency to act on the sexual attraction to underage girls, notwithstanding the evident risks. The fact that the appellant expressed his sexual interest in underage girls in a variety of ways did not deprive proof of the tendency of its significant probative value.
The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant. The Court of Criminal Appeal did not err in finding that the tendency evidence of each of the complainants and AA, BB and VOD met the condition imposed by s 97(1)(b) in relation to each count in the indictment.
Defence counsel has relied upon Rassi v R[32] and The King v Hennessy.[33] Rassi does not assist the defence. Rassi was an appeal against conviction on the ground that the trial judge had directed the jury that they did not have to be satisfied beyond reasonable doubt of the evidence of acts led as tendency evidence. The main complaint made on appeal was that the directions invited a circular process of reasoning, and that the directions may have led the jury to convict the appellant by adopting a standard of proof less onerous than proof beyond reasonable doubt. The appellant submitted that this possibility arose because the jury was invited to use the facts relating to the counts on the indictment as part of the tendency case and directed that those matters need not be established beyond reasonable doubt.[34]
The case was decided by reference to s 161A of the New South Wales Criminal Procedure Act (referred to above), resulting in the appeal being dismissed, but in the course of his analysis, Hamill J (with whom Button J agreed) said:[35]
As the appellant submits, the provision requires the jury to be directed clearly as to the standard of proof where the evidence is led in proof of an element or where it is an essential part of the circumstantial reasoning process. I accept there is a risk of inviting an impermissible and circular process of reasoning when the evidence is led for both purposes and where different standards of proof apparently apply to the same evidence, depending on the purpose for which it is being used. I also accept that the problem may be particularly acute in cases where there is a cascading level of seriousness in the allegations being relied on as tendency evidence.
This contention was specifically rejected by Beech-Jones CJ at CL, saying:[36]
Second, the applicant’s argument that using evidence that directly supports a charged count as tendency evidence necessarily invites circular reasoning falls away when regard is had to the nature of tendency evidence and that a tendency need not be established beyond reasonable doubt (save for the circumstances specified in s 161A(3)).
In relation to the former, in JS v R [2022] NSWCCA 145 (“JS”) Basten AJA observed (at [43]):
It is the tendency that is relied on as circumstantial evidence in proof of the charge on the indictment. The proper approach is to have regard to all the evidence ... relied on in proof of the tendency as evidence of the tendency alleged. To the extent that the jury is satisfied of the existence of the tendency, the tendency may be relied on in proof of the charge. Given this process, it is preferable not to direct a jury to make findings as to the conduct relied on in proof of a charge. Rather the jury should be directed with respect to finding the alleged tendency. [emphasis added]
In this passage, Basten AJA refers to the jury being satisfied of the existence of the “tendency” and, if so, the “tendency” being relied on in proof of the charge. This reflects reasoning by which the existence of the tendency is treated as an intermediate fact in its own right in the reasoning process and not just some description of the evidence used to support it. The direction given by the trial judge in this case reflected this approach. Hence, her Honour told the jury that “[i]f you find the accused did have the state of mind and that he did act on it as nominated, then you can use that in considering whether it is more likely that he committed the specific offences with which he is charged” (see [87]). The reference to “that” in this direction is to the established tendency. In contrast, the applicant’s proposed direction refers to the jury using the “tendency evidence” as opposed to the tendency itself.
So far as the onus of proof is concerned, it is not circular reasoning for the jury to first consider whether, based on all the evidence adduced in support of the tendency, including the evidence adduced in support of the counts on the indictment, the asserted tendency is established and then consider whether each of the counts on the indictment is proven beyond reasonable doubt including by reference to the asserted tendency if the jury considers it to be established. This may involve the jury reconsidering the evidence on each count but if it does it will be undertaking each consideration at different stages of its deliberations with a different onus of proof and for a different purpose.
With respect, the reasoning of Beech-Jones CJ in CL (as he then was) is compelling.
In Hennessy, Blokland J held:[37]
In terms of the burden of proof, to rely on the evidence underpinning the charges in proof of the tendency, the jury must be instructed that to use the evidence as tendency evidence for cross admissibility purposes, it must be satisfied beyond reasonable doubt as to the proof of the conduct which constitutes the tendency. If the jury are to rely on any charged conduct to prove the tendency, that conduct, or elements of the charge must be proven beyond reasonable doubt. Counsel for the Crown drew my attention to Dempsey v The Queen[38] which I agree is instructive in this case, which deals with tendency in this way and has influenced my approach here.
I am forced to disagree with this conclusion for the reasons stated above. Her Honour cited Dempsey as support for the proposition that where charged acts are relied upon as tendency evidence, they must be proved beyond reasonable doubt before evidence of them can be used for tendency purposes. Dempsey does not support that position.
In Dempsey, the accused was charged with two robberies. The circumstances of the two robberies were strikingly similar. In relation to the first robbery (count 1), identity was in issue. In relation to the second robbery (count 2), someone recognized the accused as the person who went to the door on the occasion of the alleged robbery and there was no dispute that it was the accused. In relation to the second robbery, one issue was whether the accused intended to commit a robbery when he went to the door in question.

There was a particular reason in Dempsey why the Court held that it was necessary for the jury to be satisfied of the guilt of the accused on count 1 before they could use the evidence on charge 1 as coincidence evidence or tendency evidence in proof of the requisite intention of the applicant to engage in an armed robbery on the complainant for the purpose of charge 2. That is because that intention was an element of count 2 and had to be proved beyond reasonable doubt. Therefore, in order to use the fact that the accused was the robber who committed the first robbery as evidence that, when he went to the door during the second robbery he intended to commit a robbery, the jury would have to be satisfied beyond reasonable doubt that the accused was the robber who committed the first robbery. In relation to that, the Court said:[39]
76 As a preliminary observation, plainly the prosecution would not be able to use the evidence on charge 1, to prove the relevant intention of the applicant on charge 2, unless the jury is first satisfied that the applicant is the person who committed the armed robbery that is the subject of charge 1. Strictly, under s 61 of the Jury Directions Act 2015, it might not be necessary for the prosecution to prove that fact beyond reasonable doubt for that purpose. However, if directions were given to the jury, regarding the use that might be made of the evidence on charge 1 as coincidence or tendency evidence on charge 2, by reference to a standard of proof lower than the criminal standard, that would confuse, and would be calculated to undermine, the criminal standard of proof that must be applied by the jury for it to convict the applicant on charge 1. Accordingly, in order that the evidence on charge 1 be admissible in proof of the intention of the applicant to commit the offence which is the subject of charge 2, it would be necessary for the jury, first, to be satisfied beyond reasonable doubt of the guilt of the applicant on charge 1.
It should be noted that the Court in Dempsey did not hold that the jury must be satisfied beyond reasonable doubt of the guilt of the accused on count 2 before they could use the evidence on count 2 as tendency or coincidence evidence to prove that the accused was the person who committed the armed robbery in count 1. In relation to that, the Court said:[40]
81 In the circumstances, it is most improbable that, as a matter of coincidence, the person, who attended at the premises on 23 April and robbed FD, was someone different to the person (the applicant) who attended at the same premises seven days later (on 30 April) and participated in the incident that occurred there, making demands (as he did) for money and drugs. The improbability of coincidence resides in the identity of specific common factors between the two incidents, namely: text messages were sent to each victim from the same number, using the same language and setting up a meeting at the same address; the two incidents were one week apart; and text exchanges occurred interchangeably with the two victims on 22 April. FD was robbed of drugs at knifepoint at that address on 23 April; it would be highly improbable that someone other than the applicant committed that offence, given that it was the applicant who attended the same premises in possession of a knife and made demands on MV (for money and drugs) just one week later. For those reasons, the evidence on charge 2 has significant probative value, as coincidence evidence, in proving that the applicant was the offender in respect of the offence that is the subject of charge 1.
82 The same evidence is also sufficient to establish a relevant tendency of the applicant, namely, to use the same pseudonym, with similar language, and similar instructions, to set up a meeting between himself and a stranger at the premises at 29 Wilson St. The closeness of the similarities is sufficient to invest that tendency with significant probative value in respect of the identity of the offender for the purpose of charge 1.
For the same reasons set out in the decision of Burns J, I consider that the evidence relating to the two charges on which the defendant was found not guilty in the sex offences trial, have significant probative value in relation to the issues in the child abuse material trial referred to in the Tendency Notice, and that the probative value is not outweighed by any potential prejudice to the defendant.
The evidence will be admitted.
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[1] [2002] HCA 55; 213 CLR 635 (“Carroll”)

[2] Carroll at [26]

[3] Carroll at [28]

[4] Carroll at [31]

[5] [2018] NSWCCA 195 (“DS”)

[6] DS at [3] and [4]

[7]In DS, the appellant had been found not guilty of child sex offences some years earlier because the Crown had failed to negative a presumption of doli incapax. The appeal was allowed because both the prosecution and the judge at the subsequent trial had repeatedly referred to the evidence from the earlier trial of conduct the subject of the earlier charges as “offending conduct”, “sexual misconduct”, or – even more prejudicially – “sexual assault”. The appeal court held that this could only have led the jury to misuse the evidence. Further, the tendency was described as a tendency “to sexually assault young relatives”. Had the tendencies been referred to only as tendencies to have a sexual interest in children of a particular age range, to act on that sexual interest, and to abuse a position of trust to facilitate the commission of the acts, the court would have found that there was no error. The court held that it would have been permissible to use the evidence to prove the appellant’s tendency to have a sexual interest in the young children of his siblings, and a tendency to act upon that sexual interest: Wilson J (with whom Basten JA and Lonergan J agreed) at [88] to [94] and [103].

[8] Carroll at [26] and [31]

[9] Carroll at [28]; DS at [3] and [4], [88] to [94] and [103]

[10] supra

[11] [2018] HCA 40 (“Bauer”) at [80]

[12] Bauer at [86]

[13] See Bauer at [47]

[14] JS v R [2022] NSWCCA 145 (“JS”) at [34] to [43]

[15] [1990] HCA 56; (1990) 170 CLR 573 (“Shepherd”) at 584-585 (Dawson J)

[16](2008) 235 CLR 334; [2008] HCA 16 (“HML”)

[17] HML at [39]

[18] HML at [43]

[19] [2023] NSWCCA 89 (“Gardiner”)

[20] Gardiner at [192]

[21] [2017] NTSC 34 (“O’Brien”)

[22]O’Brien at [43]

[23] Footnote 29

[24] The reference in this footnote to the standard of proof for tendency evidence in child sexual assault cases being proof beyond reasonable doubt has now been superseded. It was stated to apply “[u]ntil it is authoritatively decided otherwise”. R v O’Brien was decided before the High Court decision in Bauer which in my view is “authoritatively decided otherwise”.

[25] Section 61

[26]Section 62

[27] Shepherd at [3] – [6] per Dawson J (with whom Mason CJ, Toohey and Gaudron JJ agreed ); Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521

[28]Hughes at [16]

[29] Hughes at [41]

[30] Hughes at [40]

[31] Hughes at [59] to [64]

[32] [2023] NSWCCA 119 (“Rassi”)

[33] [2023] NTSC 67 (“Hennessy”)

[34] Rassi at [59]

[35] Rassi at [99]

[36] Rassi at [6] to [9]

[37] Hennessy at [37]

[38][2019] VSCA 224 (“Dempsey”)

[39] Dempsey at [76]

[40] Dempsey at [81]