Hughes v The Queen [2017] HCATrans 16 (8 February 2017)

Last Updated: 8 February 2017

[2017] HCATrans 016

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S226 of 2016

B e t w e e n -

ROBERT LINDSAY HUGHES

Appellant

and

THE QUEEN

Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 FEBRUARY 2017, AT 10.20 AM

Copyright in the High Court of Australia

MR P.R. BOULTEN, SC: If the Court pleases, I appear with my learned friend, MS K.J. EDWARDS, for the appellant. (instructed by Greg Walsh & Co)

MR L.A. BABB, SC: I appear with my learned friends, MS K.N. SHEAD, SC and MS B.K. BAKER. (instructed by Solicitor for Public Prosecutions (NSW))

KIEFEL CJ: There is an application for leave to intervene by the Director of Public Prosecutions of Victoria.

MR G.J.C. SILBERT, QC: Your Honour, I appear, if the Court pleases, with my learned friends, MS N. ROGERS, SC and MR B.L. SONNET, and we seek leave to intervene on behalf of the Victorian Director of Public Prosecutions. (instructed by Director of Public Prosecutions (Vic))

KIEFEL CJ: That intervention is limited to ground 2?

MR SILBERT: It is, your Honour.

KIEFEL CJ: Does anyone wish to be heard in relation to this application? You have that leave.

MR SILBERT: May it please your Honour.

KIEFEL CJ: Yes, Mr Boulten.

MR BOULTEN: Your Honours have our outline of argument.

KIEFEL CJ: Yes, Mr Boulten.

MR BOULTEN: Your Honours, the transcript of the trial used the names of the complainants and the tendency witnesses, but there was a suppression order over their names. The parties feel that the Court might be assisted by a table that links the pseudonyms to the - - -

KIEFEL CJ: Yes, thank you.

MR BOULTEN: So that would assist the Court; we can provide that. The core issue in this dispute is whether evidence of a tendency to act on a sexual attraction to girls under 16, opportunistically, as and when young persons were in the applicant’s company as he was in the proceedings below, is a sufficiently particular and probative tendency to reach the threshold of admission for use as tendency evidence under section 97. That phrase – which is quoted in the outline – is actually the conclusion of the Court of Criminal Appeal about the characterisation of the tendency.

If it assists the Court, I intend to take you to the course below, both in the trial and in the appeal, in order to give you an understanding of the way in which the tendency evidence was presented, the purpose that was behind its presentation and the way that the jury were invited to use it. So, the starting point is the tendency notice which is in the appeal book at 1575 but is quoted in the Court of Criminal Appeal judgment commencing in appeal book volume 6 at 2169.

Can I just say this, briefly, about the factual circumstances underlying this appeal? The facts are summarised in the Court of Criminal Appeal judgment, volume 6, page 2172 and following over the next three or four pages. We accept that those facts are accurate, that it is a summary that is a fair summary of the facts, with one exception that relates to count 11, the complainant BE, where there is a mistake but I will come back to that. We think it is a pertinent mistake in characterising the conduct that constituted the charge which was count 10, EE, the conduct which constituted that offence. The tendency notice, as the Court will see, pleaded a number of tendencies - to have a particular state of mind is one and a number of tendencies to act in particular ways.

Just looking at the judgment, at page 2169, (i) was the operative tendency to have a particular state of mind, sexual interest in female children under 16. Then (ii), (iii) and (iv) specify ways in which the appellant was said to act, “using” – and that is an important word – a number of different relationships - (ii) was familial relationships and social relationships; (iii) his daughter’s friendships or relationships with other children; and (iv) his own working relationships.

We need to point out that these relationships, being the context in which the charged and uncharged acts were said to have occurred, represent a very broad range of the appellant’s human activities. The context of committing offences on females under 16 can only occur in a number of contexts. Your social activities, your work activities and your family life represent, for most people, almost the entirety of your existence and for this appellant, it seems, just about made up the entirety of his existence. So the force of this argument is that the tendency to use relationships is a very broad one, given that it was pleaded in those different broad contexts.

KIEFEL CJ: But is it a point to be made against that idea that some offenders might be expected to act not within those spheres but in fact deliberately outside them and that is what distinguishes offenders such as this, that they are prepared to operate within spheres and take risks?

MR BOULTEN: That is a distinction, but it is a very broad distinction. The number of offenders who, for instance, go to a park and take a stranger away or who do something similar in relation to someone they have absolutely no connection with is a subset of offenders. In reality, it seems, this subset of offenders that relates to this appellant is likely to be a much bigger subset than the stranger/danger offender.

So that, in considering the force or cogency of the tendency pleaded, it is necessary to have regard to how common this offending is or how particular this offending is or how unusual this offending is in order to determine whether or not the evidence constituting tendency evidence has enough probative force to constitute significant probative value. The point that is made just now is that this is a broad category.

Roman (v) is in a slightly different category than the others, because it did not restrict itself to – I withdraw that – (iv) did not restrict itself to utilising a relationship to engage in sexual activities with females under 16 but rather females of any age.

KIEFEL CJ: The distinction you seek to draw is that – and the evidence in this respect – was that it was the evidence of other uncharged acts was of females who were older than 16. That is what it is referring to.

MR BOULTEN: Yes. There are three tendency witnesses.

KIEFEL CJ: Yes. In relation to count 11?

MR BOULTEN: In relation to count 11 who were adults. We submit that this paragraph was included solely so as to encompass the offending that was charged in count 11 but that it had no other real application to work as tendency evidence or to be used for tendency purposes in relation to the other counts on the indictment or in relation to the evidence relevant to those counts.

KIEFEL CJ: But it depends, rather, on what the notice is intending to convey by paragraphs 2, 3 and 4.

MR BOULTEN: Yes, it does.

KIEFEL CJ: Yes. In a sense, the context and the use of relationships and the offending taking place within them is somewhat similar to what appears, on one view, in (v)e – the particular of engaging in sexual conduct:

within the vicinity of another person –

It draws attention to the same idea of risk-taking, does it not? That is the theme that is running - - -

MR BOULTEN: Indirectly.

KIEFEL CJ: On one view, that is the theme that runs through roman paragraphs (ii), (iii) and (iv) and (v)e.

MR BOULTEN: Indirectly, that is correct. In determining whether or not any particular tendency gathers sufficient momentum to get beyond the section 97 hurdle, whether or not it posed risks is a relevant consideration.

KIEFEL CJ: For the offender’s state of mind. That is the point of it, is it not?

MR BOULTEN: Yes, it is. I accept that. But, it would, in my submission, not be sufficient, by itself, to simply point out that there was a risk of detection thought of and considered at or about the time of the action which is said to be proof of the tendency.

What was central to the compilation of these tendencies was that it was pleaded that he used these relationships – giving rise to an understanding that there was some deliberate manipulation such as what you have been speaking of, Chief Justice, where it was a deliberate action that was to orchestrate circumstances to obtain access to victims. But, that is not actually how the tendency was used and that is not exactly why it was that the tendency evidence was admitted. So, it is necessary, in my submission, to have a look at what his Honour decided when he admitted this evidence and his judgment on the application is in volume 4 and it commences at page 1641, in the relevant respect.

So in this judgment his Honour did consider whether there was a pattern of conduct and that is in the second paragraph under the heading “The test under s 97”. His Honour concluded that there were a number of features of the conduct and the events surrounding the conduct which involved closely similar conduct on the accused’s behalf:

The decision to admit which evinces a tendency to act in a particular way and with a particular state of mind is not dependent on a finding of striking similarities –

a proposition which is common to everybody at the Bar table:

The fact that alleged sexual acts are not identical does not deplete the evidence of its probative value.

We do not entirely agree with that, but it is less of a problem if the actual sexual acts are somehow dissimilar in determining the probative value of that evidence. His Honour was then anxious to determine what exactly the pattern was. And at the top of page 1642, his Honour said that:

The tendency which is established here is a wider and more detailed pattern of behaviour or modus operandi in the accused’s behaviour. In my view, that whilst there are differences in the complainant’s accounts as to the nature of the acts undertaken and the circumstances in which they occur, the evidence is capable of establishing a sexual interest by the accused in young female children.

There is no contest that the evidence was capable of establishing a sexual interest. To do that and no more would very rarely, if ever, be a sufficient basis for admission of proposed tendency evidence. Normally, it is the act which follows which gives the cogency to the evidence that would vest it with significance under section 97.

BELL J: That is, normally, it is the state of mind of attraction to young female children, combined with a tendency to act on that attraction.

MR BOULTEN: Yes, your Honour.

BELL J: Can I just understand this: is your submission in relation to proof of a fact in issue, namely, that an accused has had sexual contact with a young female child, that evidence in the case of an accused male who is of mature years that he is sexually attracted to young female children and that he has a tendency to act on that attraction by engaging in sexual conduct with young female children would not pass the section 97 test of significant probative value?

MR BOULTEN: Yes.

BELL J: I understand.

MR BOULTEN: If that is all there is – if that is what it is. If all the tendency evidence does is demonstrate what might used to have been called “propensity” – if all it does is demonstrate that the accused is a person likely to commit the offence or offences of the type charged, that would not and ought not be sufficient to constitute significant probative value. I think your Honour Justice Bell’s question crystallises a very important issue in this appeal because, essentially, that is the point of difference in many respects.

Essentially, the respondent contends that sexual interest in someone under 16 is so unusual and so perverse and contrary to what you would expect in the community that that interest, coupled with essentially any act acting upon that interest, is sufficiently significant to constitute significant probative value.

The intervener says outright that essentially any time there is evidence of an act arising from this disposition or this state of mind that is, itself, essentially so cogent that it passes the test of section 97. We say that is not the law and that is not what the provision is meant to achieve in this context of sexual offending.

Can I just go back to his Honour’s ruling because we will see from his ruling that he stepped away from this concept of orchestration or using relationships as being the tendency that was proved or capable of being proved. So halfway down page 1642, his Honour held that:

Whilst the terminology used in the tendency notice might suggest that the tendency alleged involves a tendency to foster or orchestrate occasions to obtain access to female children for the purposes of engaging in sexual activities, the tendency argued by the Crown is the tendency to take advantage of the circumstances which arose out of his social and familial relationships. It is not the Crown case that the accused had a tendency to orchestrate or arrange the circumstances or created the environment in which the sexual activities occurred. In my view, the evidence establishes a tendency to take advantage of situations which arose where the accused came into contact with young female children.

Then he extended that, but not by much, by referring back to the context of social and familial relationships. So this is not a case where tendency evidence was admitted for the purpose of, as it were, manipulating relationships. This is not one of those cases where the evidence was relied upon to demonstrate that the offender deliberately groomed someone, for instance, where there was a course of conduct over time, where confidence was won and where it was an act perpetrated deliberately and consciously through orchestration or facilitation.

It really is then about opportunistic exposure. That is the way it was analysed by the trial judge and that is the reason it was admitted, and that is the conclusion that the Court of Criminal Appeal drew when it assessed the evidence in determining the ground of appeal that was relevant to this point. Just to conclude, then, this review of the trial judge’s ruling, in the next paragraph on that page, his Honour described what happened as being a “pattern of behaviour” that was:

manifest, if not striking and requires little further analysis.

To be frank – I will withdraw that. There was no further analysis of the way in which the tendency evidence was meant to guide the jury towards a conclusion other than that he had a disposition, that is, he had a particular state of mind – a sexual attraction – and that he acted upon it in various ways in a wide range of circumstances.

There was a limit to the use of the evidence of the adult witnesses, as the Court would understand. The three women who worked with the appellant gave evidence about incidents that occurred in that context and their evidence was limited to considerations concerning count 11. His Honour did that on page 1643 at a point, just after he has reviewed the various types of conduct that constituted the tendency. He said:

In relation to count eleven –

concerning SM:

I am of the view that the evidence of the tendency witnesses LJ, CS and VR is capable of establishing that the accused has a tendency to act –

in those ways that are outlined in the dot points. Later, when his Honour directed the jury about use of the tendency evidence that is almost exactly what he said and almost entirely what he said about those witnesses.

BELL J: The directions that were given confined the use to be made of the adult tendency witnesses to the tendency that you have just directed our attention to and its significance to proof of the facts in issue in count 11.

MR BOULTEN: Yes, your Honour. In understanding whether or not the admission of this evidence, the whole of it, caused a miscarriage of justice it is right to have regard to the fact that the jury were told that these three witnesses’ evidence was limited to count 11. It is also necessary to have regard to what the judge said about how to use all of the other evidence, but it is also legitimate to have regard to the fact that his Honour did not specifically tell the jury do not use that evidence of the adult witnesses in relation to the other counts.

We submit that the mere fact that his Honour found that three tendency witnesses’ evidence was admissible only in relation to one count and for one particular form of the tendency pleaded should have been a warning sign that that count at least ought not be admitted as evidence in relation to the rest of the trial.

BELL J: Is this the subject of your grounds of appeal?

MR BOULTEN: No. There was a specific ground about the direction in relation to that count that we lost in the Court of Criminal Appeal, but irrespective of that we say just the nature of the tendency that was pleaded and the fact that it extended to adults is a relevant fact in determining whether or not the evidence of SM, who was the complainant in count 11, had significant probative value in consideration of the other counts where there were different tendencies pleaded – this was the broader tendency.

KIEFEL CJ: I am just conscious of the time, Mr Boulten. We have not quite got to the CCA judgment yet.

MR BOULTEN: I am sorry about that. I can just give your Honours brief notes about the appeal book pages of the summing-up and that commences at appeal book 5 and the tendency directions commence at the bottom of page 1796 and continue through to 1803, but suffice to say that the directions, both in writing and as given to the jury in court orally, do not go further than the reasons that his Honour considered the evidence was - when he made the ruling about the admission of the evidence.

What is more, the purpose for the admission of the evidence was as he specified in his judgment admitting it. So essentially, if I could take your Honours to 1798 in the appeal book, volume 5, his Honour found at about line 11 or 12 that the Crown argued that the appellant “had a particular state of mind” and that the tendency witnesses that were specified there demonstrated that.

He directed them that they could use that in proving the allegations on the indictment. By the way, he said you could use that but he did not say “and it can be used only if found in connection with proof of an act charged or some other act”. It was left as a series of tendencies that they could use.

GORDON J: Is that your complaint really, that in a sense the second step is missing? You had this identification of whether or not the tendency is there and whether or not the tendency evidence, or the material said to support it, establishes or is capable of establishing that tendency and then a failure to identify the fact in issue and link the two. Is that really your complaint?

MR BOULTEN: It is both the failure to identify the relevant fact in issue and to explain how the tendency impacts on the likelihood of the fact in issue.

KIEFEL CJ: Where is that expressed in your notice of appeal?

MR BOULTEN: It is a blunt assertion in ground 1 that the Court of Criminal Appeal erred by finding that the evidence was incapable of admission as tendency evidence because it “had significant probative value”.

BELL J: That ground takes up the admissibility of the evidence.

MR BOULTEN: Yes.

BELL J: Some of your submissions seem to be directed to complaints urged unsuccessfully below in relation to the directions to the jury about the use that might be made of it.

MR BOULTEN: I see. We are not relying on any of the errors that we pleaded below concerning the directions except to say that you need to look at the directions to be able to see what use the jury were told they could make of the tendency evidence.

NETTLE J: And, thus, for what it was admitted.

MR BOULTEN: Yes, indeed. So it is relevant also to have regard to what the prosecutor said about what this evidence was to be used for as well. Can I just give you some - - -

KIEFEL CJ: Well, perhaps we could stay on track then in relation to what the major issue is on this appeal.

MR BOULTEN: Yes.

KIEFEL CJ: And perhaps put aside the complaints that you wish to make on the way through about what was not said.

MR BOULTEN: If your Honour pleases. Sorry, I will just finish what the judge said. At the bottom of page 1798, he told the jury that the tendency to act in particular ways involved him taking advantage of situations. So, opportunism is at the core of the use that the jury were told they could make of this evidence. If I could take your Honours to page 1646 in appeal book 4 – the Crown Prosecutor’s opening. At line 28 she said:

basically it is the Crown case that –

the tendency witnesses’:

evidence is relevant to proving the accused’s guilt in respect of the individual counts on the indictment because the evidence of the complainants and the evidence of those witnesses establishes a pattern of behaviour. The Crown says that it reveals that the accused has a tendency to have a sexual interest in females under 16 years of age and that he acted upon that sexual interest.

There was really nothing else - - -

KEANE J: Well, his Honour goes on to say:

The Crown case is also at times disturbing and at times a harrowing tale of sexual abuse . . . It can at times seem extraordinarily bizarre or brazen, extraordinary in its sexual depravity and brazenness, and extraordinary to any right-minded person that such things could possibly occur, but they did.

Now, his Honour is there focusing - - -

MR BOULTEN: No, this is the prosecutor, your Honour.

KEANE J: I am sorry, the prosecutor is there focusing on the issue which is do you believe the complainants because their evidence, if considered alone, might seem to be extraordinary or bizarre and therefore subject to doubt. It seems to me that the prosecutor is focusing the jury on the value of this evidence to dispel what would otherwise be a suggestion – what would otherwise be a concern on the part of the jury that these events seem to be brazen and bizarre and therefore doubtful.

MR BOULTEN: Firstly, that would seem to be an invitation to draw a conclusion that because there are a number of people making these allegations they are less likely to be untrue. That is close to, if not coincidence reasoning. Section 98 was not invoked.

KEANE J: No, it is going to establish that the tendency – the propensity here to act in this bizarre way is a propensity about which each witness gives evidence but that evidence should not be regarded as subject to doubt because the evidence establishes that the offender – or the alleged offender – does these things. He has the propensity to do these things, to act in what otherwise seems to be a way that would create doubt as to the likelihood that he did.

MR BOULTEN: If brazenness or outrageous conduct is a feature of the evidence, then it could, I accept, give some more force to the value of the evidence in considering whether or not to accept particular counts or particular facts, but by itself in this context there was not a sufficient connection between so-called brazenness and what actually happened.

KEANE J: Well, there is more, is there not, because, as his Honour identified, it was the nature of the acts, the nature of the sexual acts, fleeting acts of exposure, fleeting acts of touching, acts that are not only opportunistic, not only risky in the sense of the possibility of discovery, but acts of themselves which do not involve any sustained form of gratification. It is a very different form of gratification that is involved in the acts here.

MR BOULTEN: Your Honour, it was not teased out in that way, really. This is as good as it gets. It was not teased out that way in - - -

KEANE J: Well, what you took us to in his Honour’s directions, at the bottom of 1798 to 1799, identifies the various acts of sexual conduct with the underage girls.

MR BOULTEN: Yes.

KEANE J: Touching in an inappropriate way, maintaining it was inadvertent and accidental, exposing, exposure, contact, touching, carrying out the acts when they are in the vicinity of another person. His Honour does not go on to spell it out in a way that one would expect that counsel for the accused might have objected to, but he is identifying the bases on which the jury can entertain this evidence.

MR BOULTEN: Part of the problem was that there was a compendious approach to the whole of the evidence where there were gradations in difference between the various counts and the various acts. Some of these counts were quite different and we will be taking you to some aspects of this. But cutting to the chase there is a world of difference between, for instance, count 10, involving EE, and the counts involving SH where count 10 involved conduct with a young girl, who was nearly 16 – 15 years and nine months or thereabouts – conduct that was illegal, improper, immoral but consensual, in a park, in the parents’ driveway, compared to the furtive, intrusive acts upon SH in a darkened bedroom, in her bed, when she was only six, seven or eight. And there was no linkage made between the logic that would suggest that he committed one offence with the other offence. The jury were not told how they could use that particular offence on count 10 to determine the likelihood of him committing the offence or offences concerning SH and vice versa.

NETTLE J: But your complaint is that they were told that they could use what was said in relation to count 10 in relation to counts 1 to 6?

MR BOULTEN: Sorry, your Honour.

NETTLE J: Your complaint is that they were told that they could use what was admissible in relation to count 10 in proof of counts 1 to 6?

MR BOULTEN: Count 11 it was.

NETTLE J: I beg your pardon; count 11, yes.

MR BOULTEN: Count 11 is the young woman on the TV show.

NETTLE J: I understand that. Count 10 also, do you not say? Count 10, the consensual relationship with an almost 16-year-old girl, you say was not admissible in relation to counts 1 to 6, the underage six-year-old in the bedroom?

MR BOULTEN: Yes, they were told they could use it.

NETTLE J: And they were told that they could.

MR BOULTEN: They were.

NETTLE J: They were told it was admissible.

MR BOULTEN: Yes, your Honour, and there was no logical connection or, if there was, it did not get much past. He had sexual urges and he acted upon them.

NETTLE J: In various sorts of ways.

MR BOULTEN: That is correct, your Honour. Can I go to the judgment in the Court of Criminal Appeal. The Court’s consideration of the relevant grounds commenced at 2169 and continued for some time. The Court recited facts that we do not really have an issue with. They reviewed the New South Wales authorities in a way we do not have an issue with. There was no problem about any reference to any case but the problems started to emerge, in our respectful submission, in their own consideration of events.

Can I take your Honours to paragraph 136 in the judgment at the bottom of page 2175 where there is consideration of the trial judge’s judgment. After reciting that, their His Honour determined . . . that the Crown had established that the proposed evidence established a pattern of behaviour that established the tendency for which the Crown argued, namely, a “tendency to take advantage of situations which arose where [the applicant] came into contact with young female children”.

Again, their Honours are highlighting the reworking of the tendency from what it started out as in the tendency notice. Their Honours, we say, then highlighted the situational circumstances and correctly recited the various tendencies.

KIEFEL CJ: In a sense the references in the Court of Criminal Appeal and to his Honour in the search for a pattern of behaviour in a way are supportive of the approach that you contend for, are they not?

MR BOULTEN: Yes, but the pattern was identified in a particular way.

KIEFEL CJ: I appreciate that, but at least thus far the search for a pattern of behaviour is in accordance with what you say is the correct approach.

MR BOULTEN: Yes, your Honour.

KIEFEL CJ: I know that you say it goes wrong in its application.

MR BOULTEN: Yes.

KIEFEL CJ: Whereas the approach that is argued against you and in a way perhaps is not what the Court of Criminal Appeal was doing is that the tendency is looking to the state of mind and that is really what the Court of Criminal Appeal should have been addressing, but that is not your argument.

MR BOULTEN: No, it is not, and I will not repeat what I said before because I do not know that it will add anything, but you need more than just a state of mind for cogency to prove the offence.

KIEFEL CJ: And the willingness and desire to be seen to have acted upon that state of mind.

MR BOULTEN: Indeed, yes, your Honour. Your Honours, can I go to paragraph 183? This is the application – the court’s application. They said there that “In making the assessment” about the capacity of the evidence to prove what is needed to be proved by tendency evidence:

regard will inevitably 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 the person is charged.

We accept that proposition wholeheartedly and accept that that is a correct statement of principle. Their Honours then said in 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” –

That is true too. The problem started to emerge in paragraph 185. When the court started to have regard:

to the inferential nature of tendency evidence and the requirement that it be relevant –

their Honours hearkened back to what Justice Simpson said in Gardiner when they said when the question of admissibility of tendency evidence arises:

The question . . . is whether conduct said to exhibit a tendency allows an inferential process of reasoning that the person was more likely to act in a particular way or have a relevant state of mind on the particular occasion the subject of the charge or charges.

The problem with that statement is not so much that it misstates the process of inferential reasoning; that is correct. But the problem is that the court put it in the context of admissibility. When the question of admissibility is considered, the question is whether the conduct allows, by inference, a conclusion that the person was more likely to act in a particular way or have a particular state of mind. That is almost exactly section 55. That is almost exactly relevance, but section 97 requires more than relevance. We do not disagree with Justice Simpson at all in the way that she analysed the process of reasoning in Gardiner but that is not what she was saying in Gardiner.

After that, the Court moved on to consider Velkoski, but I will come back to that. We know that they rejected those paragraphs. But, in their consideration, which commences at paragraph 194, having rejected Velkoski’s principles as they are outlined in those paragraphs they went on to say this at 196:

the tendency evidence in this case was admitted on a basis that allowed dissimilar 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.

That is true. And, the truth of it is accepted when the Court referred to Sokolowskyj in the next sentence. As your Honours will know, that was a case where the tendency evidence was rejected because of the generality of the tendency that was pleaded.

NETTLE J: Was Sokolowskyj, would you say, any more general than the pleaded tendency in this case?

MR BOULTEN: It was more general because, in this case, at least there was an attempt to delineate relationships. The context was stipulated to be within various relationships. But, given the breadth of the totality of the relationships - - -

NETTLE J: The relationships – there was not much difference.

MR BOULTEN: - - - it did not make much difference. In paragraph 197, the Court said:

The Crown’s case on tendency contended that there were two essential tendencies –

and they were stipulated:

Those tendencies were exhibited in three different, but not significantly disassociated, contexts –

Your Honours, different contexts being not significantly disassociated, is not raising the barrier very high. They are not similar contexts and they do not shed, necessarily, much light on the cogency of the evidence that is sought to be introduced. At 198, the Court said, importantly:

These dissimilarities are obvious on their face.

This is the different contexts obvious on their face:

However, what was common to them all was that they represented occasions on which young females were present and the applicant used those occasions for the purpose of engaging in sexual activities with them.

It would never be an example of misconduct of this type unless the context involved occasions when the young females were present and the offender used those occasions to act on sexual urges. That is not a pattern. Their Honours said in 199:

The same may be said of the dissimilarity in the sexual conduct alleged in the various counts. 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, referable to the circumstances as they presented to the applicant. In short, the conduct occurred opportunistically, as and when young female persons were in the applicant’s company.

No more, no less.

BELL J: Can I come back to a matter that I raised with you earlier and that is in relation to an accused of mature years, charged with an instance of indecent touching, say, of child aged eight, a female child aged eight. Proof that he has an interest in young female - children of a sexual nature and a tendency to act on that interest in the sense that there is proof that on more than one other occasion he has engaged in indecent sexual touching of a young female child – why is that not evidence which could rationally affect the assessment of the probability that he committed the act with which he is charged and do so to a significant degree?

MR BOULTEN: It is certainly relevant and whether or not it is significantly probative would depend on a range of other facts: how long ago the other act occurred; whether or not he was affected by alcohol; other situational influences that might make it more or less likely that he did something once, therefore he will do it again. It would commonly be so, but the age of the complainant is a very important factor. Their ability to be able to understand what is going on, perhaps, but also - - -

BELL J: Why is the ability of the complainant to understand what is going on relevant when one is proving both a particular state of mind and a tendency to act on that state of mind in order to establish the likelihood that the account given by the complainant is a reliable account?

MR BOULTEN: Your Honour’s question interrupted me just as I was about to say maybe that is not the best guide. But what is important is what inferential process of logic makes it more likely, for instance, that he would commit the offence charged on, say, a six-year-old if he had committed another offence another time with, say, a 15-year-old?

For reasons that are based on human understanding of the way people work and the nature of sexual conduct and, indeed, not just deviant sexual conduct, the older a victim gets, the less likely it will be that that conduct will shed significant light on whether he is likely to have committed an offence on a much younger child.

So, too, is the relationship. So, for instance, one instance of incest with a daughter or another lineal descendant is likely to be a better guide to predicting whether or not he would have committed another instance of offending on a lineal descendant. I think Justice Hodgson said that in BP. But it does not necessarily follow that the same probative force exists if there has been no lineal relationship. If there is no lineal relationship and if there has been no other real relationship that the predictive power of one act impacts significantly on the likelihood of the other.

KIEFEL CJ: There may be a number of factors, of course, which go to a state of mind which amount to a tendency. Would you agree with that?

MR BOULTEN: Yes, your Honour.

KIEFEL CJ: Some may assume more importance than others.

MR BOULTEN: Yes, your Honour.

KIEFEL CJ: When you have referred to the age of the female child that the offender is attracted to, that may vary. It may vary – still be referable to youth but it may vary. It may be more important in some cases that there are particular circumstances in which the search for sexual gratification with very young women – girls - - -

MR BOULTEN: Yes, your Honour.

KIEFEL CJ: - - - takes place, and the emphasis that was made at trial level by – in particular by the Crown Prosecutor was brazenness and risk taking. These occurred in the relationships which were identified – the relationships and the circumstances which for the most part, putting aside say the park situation – I am sorry, that is brazen.

MR BOULTEN: Yes.

KIEFEL CJ: I think the one you indicated was the particular evidence which took place privately in a bedroom which you seek to set apart. But all that is to say that it may be the particular circumstances which are more important in this particular offender’s state of mind and which truly show the tendency than the exact age, as long as there is youth involved.

MR BOULTEN: Maybe. It would be - - -

KIEFEL CJ: A possible scenario for tendency.

MR BOULTEN: Possibly, of course, but whether or not one sheds significant light on the other depends very much on the facts.

KIEFEL CJ: Quite.

MR BOULTEN: But it also requires the use to be properly analysed before admission, during the course of the evidence, when the jury is being directed and in the jury room, so that if there is no actual connection made in the way in which your Honour has just stepped it out, then that sheds light – sorry, that means there is a problem with the original admission of the evidence and the likelihood that it caused a miscarriage.

KIEFEL CJ: Well, it is one thing, of course, for the trial judge to be satisfied that the evidence does have not only probative value but the required significance for admission. It is another for the trial judge to explain it in a way, or give directions, more particularly, to a jury, which say how the jury is to reason in relation to it. That is a point of great distinction, is it not, particularly in the context of this act?

MR BOULTEN: Yes, and again I really am just pointing to the summing-up to demonstrate what the evidence was to be used for.

BELL J: One difficulty I have with some aspects of the way you put it, Mr Boulten, is that your grounds are directed to admissibility. I think the grant of special leave was upon the basis of the desirability of resolving a tension or a possible tension in the approach taken in New South Wales by contrast with that in Victoria in Velkoski about the admission of this evidence which directs attention to consideration of the determination by the primary judge of the capacity of the evidence to pass the threshold test of significant probative value and if it were contended that it then did not meet the test that invites consideration of prejudice under 101, but directing attention to the actual use subsequently made seems to me to raise issues that are not addressed by your grounds.

MR BOULTEN: Well, we are saying there was a miscarriage of justice because of the introduction of the evidence, that he was wrongly convicted because of the evidence.

BELL J: I appreciate you say the evidence was wrongly admitted. I understand that.

MR BOULTEN: Yes.

KIEFEL CJ: I think if you have finished with the Court of Criminal Appeal, you were going to turn to section 97.

MR BOULTEN: Before I finish with the Court of Criminal Appeal, I need to go back to Velkoski and this highlights why we got special leave. It is in 186, 187 and 188 of the judgment. Those two paragraphs of Velkoski were disavowed. We do not accept the language used by the Court of Appeal represents the law in New South Wales. This is what the court disagrees with. We submit that the propositions in these two paragraphs from Velkoski are perfectly orthodox and represent the law.

KIEFEL CJ: The statute law or the common law?

MR BOULTEN: That law that relates to section 97.

KIEFEL CJ: Could you take me – it may well be there and I have overlooked it - where does the Victorian Court of Appeal deal with the Evidence Act provisions and their requirements? I think there is in the conclusion certainly at paragraph 164 of Velkoski v The Queen (2014) 45 VR 680 at 717, paragraph 164 - where is the discussion of the requirements of the section and the context of the statutory scheme in relation to tendency evidence?

NETTLE J: It starts at 65.

MR BOULTEN: It commences at paragraph 20 with the recitation of the section.

KIEFEL CJ: And then particularly, under the heading “The effect of the introduction of ss 97 and 98” appears from paragraph 65 and following.

MR BOULTEN: Yes, your Honour.

KIEFEL CJ: Is there an analysis of what is required by those sections and any differences that exist from the common law approach and statutory approach?

MR BOULTEN: Yes, your Honour. The court had regard to both Pfennig and Ellis and how Ellis had made a difference to the common law use of similar fact evidence. There was a comprehensive review of all of the by then significant judgments of the New South Wales Court of Criminal Appeal and the Victorian Supreme Court of Appeal.

GORDON J: Does not the analysis start at 162 on page 717?

MR BOULTEN: Thank you, your Honour, yes.

KIEFEL CJ: I think that is the conclusion.

MR BOULTEN: That is the conclusion. These are principles that are being stated that are derived from the statutory context, it seems. Section 164 itself does that, so too does paragraph 171.

KIEFEL CJ: There is a reference in paragraph 170 to the requirements of section 101. Is the relationship between sections 97 and 101 and the common law position discussed by the Court of Appeal?

MR BOULTEN: Not quite in the same way that I hope to, but they are distinctly considered and they are separated in the sense that section 101 is, I think, regarded as going to the balancing exercise that it requires, whereas the court’s consideration of 97 was focused on how you measure the level of cogency, or how you determine the extent of the probative value.

KIEFEL CJ: Quite so, but is that the approach of the Court of Appeal in Velkoski? I am looking at paragraph 82 where it is said that:

The requirement of “underlying unity” . . . “pattern of conduct” . . . These concepts continue to be regularly used to provide guidance as to the strength of the tendency evidence . . . They remain, in our view rightly, a primary guide to the resolution of questions of admissibility.

Strength of the evidence, is it not - that is part of the test for section 97, but what about the question that is potentially bound up in that of the prejudicial effect, the weighing that needs to take place at a later point, separating the two?

BELL J: Could I raise one aspect of Velkoski and it is paragraph 173(f). In that paragraph the court says:

The offender’s state of mind is frequently relied upon in the Crown’s notice of tendency evidence to cover the offender’s interest in particular victims and his willingness to act upon that interest.

So that is this very issue. The court goes on to say that:

That the offender has such a state of mind discloses only –

what their Honours describe as “rank propensity”:

which is not admissible as tendency evidence.

Now, in a sense, I think to the extent there may be a difference between Victoria and New South Wales we find it in that analysis in that section 97 is concerned with circumstances in which, when evidence possesses significant probative value, it is open to lead evidence that a person has, amongst other things, a particular state of mind and it is contemplated, as I would read the section, that one may adduce evidence provided it reaches that threshold to prove the fact of the state of mind – in this instance, sexual interest in young females – as a step in the way of proof of the fact in issue. Now, I am just not sure how one reconciles some of the statements in 173(f) with the text of section 97.

MR BOULTEN: I hope to be able to analyse section 97 in its statutory context a little later. However, the concept that a person has a particular sexual disposition by itself and without anything else would be highly unlikely in most circumstances to have sufficient cogency to be regarded solely on its own rights as significant. There would necessarily need to be something else. So that there would need to be some other tendency to act pleaded to give the tendency to have a state of mind the requisite degree of relevance.

BELL J: I do not read the court as there concerned with the threshold test of significant probative value. Rather, on one way of reading that subparagraph, the court considers that evidence of propensity is not admissible as tendency evidence. Now, that may be a correct proposition, but an alternative view is that when one proves that a person has a particular state of mind and a tendency to act in a particular way one is proving what common lawyers call “propensity” and that this Act recognises that provided evidence of propensity passes a threshold test higher than mere relevance, it is admissible.

MR BOULTEN: We agree with that, but it would need to be more than just starkly – the tendency to have the state of mind, the act. There needs to be something which makes it logically permissible to safely draw a conclusion that the charged act occurred, or is likely to have occurred, because of the other act and state of mind. So, there would need to be something more than simply demonstrating that this offender is a person likely to commit offences of the type charged. I accept that that is a proposition that is of long standing and based in the common law. I will come back to how that should be treated. But, it is not to say that the Court of Appeal in Victoria was having regard to a mixed concept of prejudice as opposed to particularity of act when they considered - - -

KIEFEL CJ: Well, could I just interrupt you there for the moment, because you said, in answer to my earlier question, that you thought that there was no elision between the requirement of significant probative value and whether the evidence is highly prejudicial. In the subparagraph, to which Justice Bell took you at 173(f), the Court of Appeal goes on to say:

Resort to that particular state of mind to support tendency reasoning is impermissible, highly prejudicial and unnecessary.

And, I do not think that is the only place in which reference to it being “highly prejudicial” appears. That is a clear elision, is it not, of sections 97 and 101?

MR BOULTEN: We argue that part of 97’s work is to set a threshold to admissibility which is sufficiently high which, by itself, guards against impermissible reasoning and impermissible use of tendency evidence.

KIEFEL CJ: I think we appreciate that. But, you rely upon – you do not put Velkoski to one side, you rely upon it. You say its reasoning is correct. Therefore, you must resort to it if you wish to use it in support of your argument. We need to understand what you are drawing from it and what is consistent with your argument.

MR BOULTEN: What we are drawing from it is what the Court of Criminal Appeal said about it in their judgment. We contend that they specifically and directly rejected propositions which are highly pertinent to a proper understanding of the way that section 97 operates. And, it is those paragraphs on page 2189 which are at the heart of the Court of Criminal Appeal’s decision about why they determined that the threshold set by section 97 was met in every instance in this case.

There is no – paragraph 173 and all of the other subparagraphs are not different from paragraph 164 or paragraph 171. They all need to be seen in their proper context in relation to each other, but in the judgment of the Court of Criminal Appeal the Court rejected the language in those two paragraphs. They rejected the proposition that section 97 is intended to address the risk of an unfair trial through the use of tendency reasoning ensuring a sufficiently high threshold of admissibility. We say that is a correct proposition.

We also say that to remove any requirement of similarity or commonality of features does not give effect to what is inherent in the notion of significant probative value and we contend that it is correct to say that evidence that does no more than prove a disposition to commit crimes of the kind in question would ordinarily lack significant probative value.

Likewise, we contend that it is apposite and desirable to have regard to the concepts that are outlined and highlighted in paragraph 171 of Velkoski and that the degree of similarity of the operative features is indeed what gives the tendency evidence the power, the force, the momentum and the cogency that is necessary to meet the statutory threshold.

BELL J: Some of those concepts, which of course are taken from common law notions of similar fact evidence, are apt to describe the force of evidence which, under the Evidence Act, one might treat as coincidence evidence and that does not really address the question of what is the Evidence Act doing when it confines the use of tendency evidence but, subject to it meeting the section 97 threshold, allows that one may lead evidence to establish that a person has a tendency to act in a particular way or to have a particular state of mind. That is quite distinct from the idea that one may establish the fact in issue by a process of reasoning that involves coincidence reasoning.

MR BOULTEN: Of course tendency evidence is different from coincidence evidence. The sections are quite different. There is no specific mention of similarity in the terms of section 97. Tendency evidence is a mechanism that involves prediction. If somebody did this, or thought this, or acted in this way, on this occasion, did they do so on another occasion? It is by having reference to the connection between the two events that you need to assess whether the threshold is achieved.

It can really only be a very exceptional case where something happened which was totally different than the offence charged, both in the acts constituting the offence and all other circumstances surrounding it and anything else that is relevant to it. But yet, where there is such a connection that there is significant or influential force in determining that because that happened, the other incident did too. So, it is normally – and almost always – maybe not always, but usually – it is the similarities in the conduct or the state of mind which allows the process of reasoning to reach the conclusion.

BELL J: The common law turned its face on the admission of propensity evidence it has often been said, not because it was not relevant, but because it was relevant but prejudicial. In other words, it is not self-evident that the proposition that a person has a proven tendency to be sexually attracted to young female children and to act on it by sexually interfering with them in a variety of ways is not logically related to whether one accepts the account of a complainant that, as a young girl, she was sexually interfered with by that accused.

MR BOULTEN: Agreed. And, most of the work involved in the act – in guarding against that prejudice – comes from section 101.

BELL J: Yes.

MR BOULTEN: I accept that. But, there is still work to be done in that regard in section 97. That is why there is a threshold. Can I go to the terms?

GAGELER J: Mr Boulten, you will take us to the terms of the section.

MR BOULTEN: Yes, sorry, your Honour.

GAGELER J: What seems to be studiously avoided in all of the submissions in this case is the legislative history. The reason for a threshold was thoroughly considered by the Law Reform Commission on a number of occasions. Are we going to hear anything about that today?

MR BOULTEN: We will need to then. Yes, your Honour. It would seem – I obviously need to. But, there has been – because – can I just come back to this? The predictive process of determining whether the person will act similarly again is at the heart of tendency evidence. That predictive process has been regarded as imperfect. I will just need to check whether this is what the ALRC has said on occasions. But, that is what the courts have said. That is a sort of collective understanding built over years that there is an imperfect connection between one incident happening and predicting that it must occur again.

It is that scepticism, as it has been referred to in textbooks and I think in other judgments, that we say informs the reason why. The Evidence Act has two provisions – sorry, a number of provisions that make it more difficult to admit tendency evidence than other forms of relevant evidence. The threshold is part of the work that the Act does to ensure that there is no unfair justice occasioned, not by balancing considerations of unfairness against relevance, but by requiring there to be some significant logical force before tendency evidence reaches the threshold for admission. The starting point, of course, is no tendency evidence can be admitted but this exception occurs only when the significant point is reached.

The context of the section is that firstly there needs to be notice given, and that is unusual in the Evidence Act. The reason why notice needs to be given is itself a pointer to the need to particularise exactly what it is that is being attempted to be proved so that the trial judge can properly assess whether the test ultimately is reached under 97, and so that the consideration of the evidence is for relevant purposes and only for the relevant purposes. So notice is an unusual provision.

The requirement that there be more than mere relevance is part of this context. It is because of the need to demonstrate significant probative value that you would only get to consider whether or not section 101 has any work to do, and in criminal trials there is this provision of section 101. We submit that the section, 97, is part of a strict regulation of tendency evidence and it demonstrates a legislative approach to the use of other forms of evidence that carry with it notions of assessing, for instance, disposition and character.

There are other provisions in the Act which exemplify and demonstrate a focus on special caution being had when dealing with the character of an accused person, the disposition of an accused person and associated concepts. So I am now at 3.3 in this outline.

Criminal trials are, like all proceedings, focused on relevant facts in issue but even more so than civil proceedings in some respects. The Act imposes restrictions on character and there is a focus in the Act on ensuring that wherever possible and only in exceptional circumstances should it – where you cannot predict it, that the evidence should be about the facts in issue. So section 65 is another section which, dealing with the admissibility of hearsay evidence, puts restrictions on its admissibility but in a less stringent way than does section 97 and the other sections concerning tendency evidence.

In the case of hearsay evidence, once evidence is admitted for a non-hearsay purpose, the automatic result perforce of section 60, is that it is in for hearsay purpose but the opposite applies to tendency evidence. Section 95 is the exact opposite of section 60 and if tendency evidence is admitted for non-tendency purposes it cannot be used for tendency purposes. So that is another pointer to the legislative intention on the suite of sections that deal with the way in which the court admits and uses tendency evidence.

There are restrictions on opinion evidence. Character evidence is stringently governed. Evidence of bad character is very strictly governed, evidencing the purpose in keeping the issue here in a trial not on the general character or disposition of a person but focused on the facts in issue. This is not a trial normally about whether the person is a good person, or whether the person is a person who is generally likely to commit criminal offences. Nor, we say, even a trial about whether the person is likely to commit criminal offences of the type charged. So these are all provisions that have work to do in understanding why it is that section 97 has the threshold of significant probative value.

Criminal trials focus on particular acts and they require the high particularity upon specified offences. We also argue that the requirement to demonstrate cogency as a precondition to admission should be viewed as a form of legislative vigilance against impermissible reasoning. This provision applies to tendency evidence adduced about any person. It is not confined to evidence about the accused. Section 97 can relate to any person or any particular way of thinking or a particular act in a civil case, in the defence case, in the prosecution case, the whole gamut.

It also applies to judge-alone trials, both in the civil and criminal jurisdiction. So that, in essence, these are guides even to judges that there needs to be something cogent about the evidence before it can reach a point of admission.

In criminal trials, cogency considerations need to be evaluated before consideration of prejudice, and exclusion of the evidence does not depend on prejudice. We use that as an aid to our argument. The fact that there is no need to have regard to the prejudicial effect of the admission when considering section 97 shows that the threshold must be there for its own purpose.

That is why we have said in (iii) in the outline under 3.3 that similar fact reasoning and tendency evidence under section 97 invoke the same process of reasoning. They are not the same tests but they are the same process of inferential reasoning. The section is actually a presumptive, exclusionary provision.

KEANE J: The risk you are talking about there in that subparagraph (iii) is the risk of using the evidence of one offence as a predictor of the likelihood of another offence.

MR BOULTEN: Yes, your Honour.

KEANE J: What if the use is not as a predictor of offending but rather in a case - like O’Leary’s Case, to get it out of the sexual context – where a murder is committed out in the bush at a fettler’s camp and Sir Owen Dixon regarded the evidence of violent acts before the charged act as evidence demonstrating that what would otherwise seem, so far as the complainant’s account was concerned, to be unlikely, difficult to believe, difficult to understand, that the relevance of the evidence was going to the likelihood that the complainant’s evidence was true, because otherwise it would seem unlikely and doubtful. So it is not being used as a predictor.

MR BOULTEN: No, I understand. I am assisted here, but can I tell your Honours that a lot of what your Honour just said does not sound like tendency evidence; it sounds like evidence that might be admitted for non-tendency purposes to cut off lines of argument that might be put against the charge that is being considered.

For instance, Harriman style reasoning does not necessarily involve tendency reasoning. It is evidence which is admitted for non-tendency purposes but which has the capability of use for tendency purposes, but if it is truly admitted for the sorts of reason that your Honour just outlined, section 95 would operate so as to limit its use so that it could not be used as tendency evidence.

The whole function of tendency evidence is about drawing the conclusion, the very conclusion that because the person had a state of mind or acted in a way this time you can predict cogently that the charge is correct because he is likely to do it again.

BELL J: And by the sort of reasoning that Justice Keane was proposing a few moments ago, could we test it in this way? Say there is an allegation - a child says – and I do not recall the precise particulars, but it is somewhat like one of the counts here – “I am swimming with the accused, I swim between his legs and he grips me and then he touches my private parts as he pushes me through his legs”. Determination of whether or not that act is correctly characterised as an indecent touching may logically be informed on one view by knowing that this is a person who is sexually attracted to young girls of that age and has on other occasions used opportunities that arise in order to indecently touch them. That might remove the doubt that this was an accidental brushing of the child that was later misunderstood by her as she looked back.

MR BOULTEN: We agree with that. If that is the reason why it is admitted and if that is why it is used, then that might well have significant probative value.

BELL J: It would be evidence that he had a particular state of mind and a tendency to act in a particular way, under 97. But you accept that, in some circumstances, that might meet the threshold?

MR BOULTEN: Yes, your Honour.

BELL J: Now, to the extent that it is suggested that in order to have that level of probative value it is necessary to point to some underlying unity, similarity or the like, what is it that makes it logically more relevant to rely on that line of reasoning when one can say, “Here is an accused with a tendency to be attracted to girls under the age of 10 and to act on it by touching their vagina”, but to exclude evidence of a sexual interest in a girl, say, aged 12, touching her on the breasts? Is it - - -

MR BOULTEN: Sorry.

BELL J: In other words, is the particular form of sexual contact and questions of age, when we are dealing generally with underage girls, a matter that bears on the capacity of the evidence to possess the requisite degree of probative value?

MR BOULTEN: They all have a role to play in assessing the capacity but the more likely - sorry, the prediction is likely to be more accurate if you can demonstrate in this form of reasoning, similarities in conduct or pattern of offending. We do not contend, nor did Velkoski contend either, that there always has to be such a pattern but rather that it is apposite and desirable to consider whether there were such patterns and conduct.

BELL J: Well, to the extent that there is a difference between New South Wales and Victoria on this issue, in this instance the Court of Criminal Appeal did not accept Velkoski’s statement that the Court of Criminal Appeal in New South Wales had lowered the threshold too low. Now, I do not understand the New South Wales court to have dismissed the idea that similarities or underlying unity or anything of that kind might not be significant, but where the difference seems to be is in part, as I see it, the paragraph to which I directed your attention in Velkoski and a view that proof in any case of a tendency to have a particular state of mind is mere disposition and not mere propensity and not relevant.

MR BOULTEN: Not significant but not relevant.

BELL J: Inadmissible as tendency evidence is what their Honours say.

MR BOULTEN: Certainly, your Honour.

BELL J: Now, I am not sure that you embrace that proposition.

MR BOULTEN: It depends on the facts of the case but it would be a rare case, we say, where there are dissimilarities of significance in both the facts relevant to the charge and in the facts of the charge so that – I will start again. It is a rare case where there are such dissimilarities and yet there is significant probative value and it would only be where there is something about the nature of the evidence, both the proposed tendency evidence and the evidence that is going towards proving that enables an obvious connection to be drawn that would allow a conclusion that the tendency evidence significantly assists in proof of the charge or the relevant facts.

If all you have though is a state of mind and another occasion when an offence occurred, or even other occasions when the offence occurred, that would never be enough, we say, to get to the point of significance because there is just not sufficient logical connection in the two events.

BELL J: So, put to one side the particular issues that you raise relating to the adult tendency witnesses and to the evidence concerning the counts 10 and 11 – put all of that to one side – is it your submission that the evidence as between the counts involving the children at a younger age were not capable of being used, the one in support of the other as tendency evidence. Is that your submission?

MR BOULTEN: No, it is not. We made a concession - - -

BELL J: Yes.

MR BOULTEN: - - - at the end of our speaking notes, but the concession - - -

BELL J: I am sorry, I had not - - -

MR BOULTEN: No, that is all right. The concession is that there were operative similarities between the two complainants, SH and JP.

NETTLE J: That is counts 1 to 6, is it?

MR BOULTEN: Yes, your Honour.

NETTLE J: Yes.

MR BOULTEN: Both in the offending and the circumstances- - -

BELL J: Yes.

MR BOULTEN: - - - we draw a distinct barrier between count 10 and count 11, on the one hand, and the other counts and the counts that relate to AK fall somewhere in between.

GORDON J: Just so I am clear, I do not quite understand. So, to the extent the concession is made – to answer Justice Bell’s question – is it the position that the evidence that was ultimately accepted as tendency evidence on the whole of counts 1 to 6, in a sense, was available? Because I noticed you go on to say there was a significant age gap between those counts. In one count, they were six to eight-year-olds, in the other they were 15. I had understood that age was one of the things you were relying on.

MR BOULTEN: It is, but - - -

GORDON J: Not in this case.

MR BOULTEN: We accept that going into a bedroom in the circumstances in both of those cases, where the acts were carried out in that context, irrespective of age, it was probably open to leave those counts to be heard together.

NETTLE J: And, for the evidence of each of the complainants to be cross-admissible on the counts for the others.

MR BOULTEN: In those instances - - -

NETTLE J: On those counts, yes.

MR BOULTEN: In those instances, yes, your Honour.

NETTLE J: Yes, on counts 1 to 6, totally cross-admissible.

MR BOULTEN: Yes, your Honour. Yes, your Honour. But, the problem lies elsewhere.

GORDON J: In relation to the other counts, you mean?

MR BOULTEN: Yes, your Honour.

GORDON J: Is that what you mean by elsewhere?

MR BOULTEN: Yes, your Honour.

GORDON J: By reference to what you set out and the extent of your note.

MR BOULTEN: Yes, your Honour. Yes, your Honour.

BELL J: So, just going back to your outline, in paragraph 1.1 you identify the core issue.

MR BOULTEN: Yes, your Honour.

BELL J: And you say that it:

is whether a tendency to act on sexual attraction to girls under 16 “opportunistically, as and when young persons were in the applicant’s company” . . . is a sufficiently particular and probative tendency –

And do I understand, taking on board your concession, that you would say in relation to the concession that the closeness in age of the girls and the circumstance of the commission of the offences in the privacy of the bedroom are relevantly additional facts which give force - - -

MR BOULTEN: Yes, your Honour.

BELL J: I see.

MR BOULTEN: Exactly. This is not just opportunism. There is something more particular about those particular incidents.

BELL J: So just to test it further - - -

MR BOULTEN: Yes, your Honour.

BELL J: - - - if we go back to the girl in the swimming pool who says “he indecently touched me” and she is at the same age approximately as these complainants who have been touched indecently in the bedroom, does it not meet the threshold test?

MR BOULTEN: We do not so readily give that up, especially in the context of the way in which the evidence was sought to be used so generally and the way in which it was admitted. We have put AK who seems to fall – she is most similar to that example – in a category in between counts 10 and 11 and 1 to 6.

NETTLE J: If you are right about that, would you have to sever counts 7, 8 and 9 from 1 to six?

MR BOULTEN: Sorry, your Honour?

NETTLE J: If you were right about that, would you have to sever counts 1 to 6 from 7, 8 and 9 and try them separately?

MR BOULTEN: Yes, your Honour.

NETTLE J: You would say that you would?

MR BOULTEN: Yes, your Honour. The appellant had a better case to sever 10 and 11 but - - -

NETTLE J: You still need it for 7, 8 and 9 if you can get it, as it were.

MR BOULTEN: Yes.

KIEFEL CJ: But then again in counts 3 to 6, 7 to 9 and 11 you have exposure of his penis as the common feature.

MR BOULTEN: Excuse me.

KIEFEL CJ: If you are looking for similarities, as you are.

MR BOULTEN: There were some similarities, yes, your Honour.

KIEFEL CJ: You say they are not enough.

MR BOULTEN: Not enough in relation to AK, clearly not enough in relation to the other two complainants.

KIEFEL CJ: But I have just pointed out the similarities of AK, who counts 7, 8 and 9 relate to, with counts 3 to 6 and 11.

MR BOULTEN: There was no touching of AK in the swimming pool incidents. Count 7 there was - - -

KIEFEL CJ: There is exposure in all of them, but you say there have to be identical types of acts?

MR BOULTEN: No, I do not. No, I do not. Part of the problem is that all of this evidence was dealt with compendiously. It was actually just shifted holus-bolus in, and the degree of particularity that your Honour the Chief Justice has just been drawing out was never done. So it was put to much broader use, a much more general tendency was explained to the jury - - -

KIEFEL CJ: Yes, but as we have indicated before, we are not talking about the sufficiency of directions to the jury. We are talking about whether or not the judge could have come to the view that there was significant probative value. That is what we need to focus upon.

MR BOULTEN: And whether or not the Court of Criminal Appeal was correct in saying that essentially having the disposition and being exposed opportunistically to a potential victim and then acting is sufficiently probative to constitute significant probative value.

KIEFEL CJ: Where are we then, Mr Boulten, in relation to your outline?

Your Honours, we are at 4 but I think I have covered a lot of this already during the course of argument. Particularity is at the heart of tendency reasoning. The probative value depends on the degree to which the tendency informs the process of concluding that the act charged occurred. So that the more general the tendency, the less likely it is there will be a logical connection between the offence charged and the tendency evidence.

As I have stated, the conclusion which we have distilled as the key issue was that the Court of Criminal Appeal was of the view that being exposed to a victim opportunistically and having the disposition was sufficient. We say that was an error.

BELL J: An error in relation to all the counts? I am just trying to take on board your - - -

MR BOULTEN: We say it was an error to express it that way and as you actually apply it to the counts you can see where the mistakes actually impacted. That is why I have said it impacts on 11, it impacts on 10. It impacts to some degree on AK and probably not on the first two complainants. But it did impact on this trial in a manner which should justify a new trial.

So, can I just go to these facts and can I go back to the Court of Criminal Appeal’s summary of the facts at page 2173. When describing the events concerning EE in count 10 the court described an occasion when he drove her home:

they began kissing, during which he pressed . . . into her hip and then moved her hand onto his penis –

In fact, that is not what happened. If I can take your Honours to the exact evidence at appeal book 440, volume 2.

The event which is the subject of that count is described in evidence-in-chief from line 31 until line 42, and it is clear that at line 38 that it was the complainant who moved her hands, not the appellant who moved her hand. The offence charged is consistent with that. It was inciting her to commit an act of indecency with him. That is the only example of that offence on the indictment, but the technicality is not the important aspect.

The offending in this instance, and all of the evidence surrounding it concerning this complainant, was markedly different than the evidence that concerned all of the other complainants and all of the tendency witnesses. The differences are apparent. They are so different that they could not garner sufficient probative force.

This is an example of why it is wrong to conclude that evidence of a disposition by itself or in conjunction with one other act of indecency with or towards a child is insufficient as a proposition by itself to have significant probative value. There are qualitative distinctions in offending and they do make a difference in the predictive exercise that tendency evidence requires and they are established in this case, in this instance. She was nearly 16. The acts were consensual. They were illegal, but they were consensual. They do not bear significantly on the likelihood that he had or would commit an offence on a prepubescent child.

BELL J: I think your concession does not require emphasis on prepubescent child because JP was 14 or 15.

MR BOULTEN: That is true.

BELL J: But I understand the contention that you make in relation to this count.

MR BOULTEN: Yes, your Honour. SM was also different. The offence concerning her was essentially exhibitionist conduct. There was no touching on this occasion.

KIEFEL CJ: But there was other evidence of touching, was there not?

MR BOULTEN: Yes, there was and that is accepted, that other touching is capable of support for other aspects of the evidence concerning the different complainants, but the offence here is quite different. In Sokolowskyj the Court of Criminal Appeal drew a distinction not just between the ages of the people involved in the offence charged compared to the tendency evidence but drew a distinction between exhibitionist conduct and the conduct that was the subject of the charge.

KIEFEL CJ: Does not the word “exhibitionist” have a more public connotation?

MR BOULTEN: Normally, yes.

KIEFEL CJ: This is exposure to one individual?

MR BOULTEN: Yes, but in a workplace environment where people might be expected - - -

KIEFEL CJ: Where we have the risk element, which runs through all of this.

MR BOULTEN: Yes, your Honour, but it is still exhibitionism.

KIEFEL CJ: I understand.

MR BOULTEN: Yes, your Honour.

NETTLE J: Is there any difference in the reasoning process in Sokolowskyj and Velkoski?

MR BOULTEN: Not really. I do not see any difference whatsoever. It is an example of the reasoning process in Velkoski .

NETTLE J: The differences between Sokolowskyj and this case.

MR BOULTEN: There are.

NETTLE J: The form of reasoning?

MR BOULTEN: The form of reasoning, definitely. There is a marked difference, your Honour. With AK, that was an example of the use of social activity as a cover for furtive sexual conduct, which is a little different than the conduct which was the subject of the counts concerning SH and JP, which was outright furtive.

It was also different to most of the other offences charged because two of the counts did not involve contact and the third was quite incidental contact. That was the applying of ear drops as the complainant had her head in his lap. They are the factual problems that infuse this trial, which we say should not have all been heard together.

We ask for the convictions to be overturned and a new trial ordered – several new trials ordered – in accordance with the argument that we have presented, which leaves me yet to deal with the Australian Law Reform Commission. There have been several reports that consider tendency evidence, some of them predating by a long time the introduction of the Evidence Act (NSW).

There was consideration about how to deal with what used to be similar fact evidence and there were draft provisions that were recommended by the Law Reform Commission. Ultimately, the form of section 97 was significantly different than that which was recommended in a number of ALRC reports prior to the Act being enacted.

It is difficult to draw anything concrete from the ALRC reports because their focus was on a provision or a set of provisions that were not ultimately enacted. We can give the Court a note about this. I accept that we should have done already, but to do it on my feet in these circumstances is quite a tricky exercise and whether or not the Court gets significant insight into the Law Reform Commission’s various reports depends a lot on what they considered and what happened. What happened is not significantly explained – the differences are not significantly explained. We are not quite sure why it was that the provisions ended up the way they did.

KIEFEL CJ: Mr Boulten, why do you not provide a note to the Court, say, within seven days and then the respondent and the intervener have seven days to respond to that note.

MR BOULTEN: Yes, sure; very grateful. If the Court pleases.

KIEFEL CJ: Thank you. Mr Babb.

MR BABB: Your Honours, just before we leave the Australian Law Reform Commission report one of the – quite rightly, Mr Boulten says it is of limited use – the consultation draft that went out had a subsection (b) in it that said – that required that:

all the acts or states of mind, respectively, and the circumstances in which they were done or existed, are substantially and relevantly similar –

So that was the consultation draft that went out and that makes much of the discussion in our reports not particularly useful but we of course will respond to the note put on by my learned friends.

GAGELER J: It would be useful if you look not just at the original reports but also the joint Law Reform Commission investigation about 2004, 2005, where a lot of the concerns addressed in the earlier report were reiterated and restated.

MR BABB: I will, thank you, your Honour.

GAGELER J: Restated in a way that, perhaps, at least arguably, informed the reformulation of the section.

MR BABB: Thank you, your Honour. I am indebted to your Honour. Your Honours, in my submission, the issue in this case is the meaning of “significant probative value” in relation to section 97 of the Evidence Act and that that is a question of statutory interpretation. In accordance with usual principles, we start with the text of the Act. I have five aspects of the texts of section 97 that, in my submission, shed light on what is meant by the phrase “significant probative value” and I will take your Honours through those five points.

The first is contextual and structural. It deals with the absence of the word “similarity” in section 97 and the contrast between the absence of the word “similarity” in section 97 and the specific use of the word “similarity” in section 98. In my submission, that textual difference between tendency and coincidence evidence reflects the fundamental difference in the reasoning employed in respect of tendency evidence and, in particular, whereas with coincidence evidence where the probative value arises from the unlikelihood of two instances arising without a – and then being unrelated, in relation to tendency evidence the probative value stems from recognition that a person is more likely to have a particular desire or state of mind, or urge, if they had that desire or state of mind in the past and, similarly, more likely to act if they have acted in the past.

That is not to say that similarities are irrelevant, they are an important consideration in relation to section 97. However, the absence of an express reference in the section to similarities means that similarities are not the only factor and not the determinative factor and that is really a significant point of distinction between the Victorian Court of Appeal and the New South Wales Court of Criminal Appeal.

NETTLE J: Is there any difference between Sokolowskyj and Velkoski on that issue?

MR BABB: No, they – there is not a difference and the important thing about Sokolowskyj is that it is not a case that deals with state of mind and it could not because it was a factual scenario of a man exposing himself – publicly exposing himself to adults and then that being used in relation to an indecent assault at a shopping centre of a child. So you did not have the state of mind of a sexual interest in children and, very importantly, the lack of recognition of the fact that tendency evidence can be a tendency to act with a particular state of mind is an error, I submit, and I will expand on this, in relation to the Velkoski court’s reasoning.

NETTLE J: What I had more in mind was whether there is any difference in point of principle between the significance which the Court of Criminal Appeal attributed to considerations like similarity, modus operandi and such like and that which the Victorian Court of Appeal attributed to those considerations in the application of section 97. Thus far I do not see it myself, but if it be there, I would like to know what it is.

MR BABB: And part of that is state of mind and part of it is the type of offending. Every case needs to be dealt with in relation to the particular issues in that case and the issue in Sokolowskyj could not deal with state of mind because of the quite different type of offending. So it limits the similarities or the particularity that they are looking at and they necessarily look towards acts in that case. That is not this case where state of mind has an important part to play.

The other features that are relevant in relation to the consideration of significant probative value in section 97 include the strength of the tendency and it is something that has been picked up by the Court so far in the discussion and that will consider questions of how frequently someone has or the evidence is capable of showing that they have acted upon a tendency and whether they acted upon the tendency despite obvious risks which will also be a relevant factor in terms of the strength of the tendency. That is an important feature of this case. In every instance, the offending behaviour was risky behaviour and I will take your Honours a little bit later to the facts that make out that proposition.

Also, questions of the significance will be related to how common the behaviour is or the state of mind is in the general community. So, to the extent that a tendency is held and exhibited by a large subset of the general community, that can impact on the significance of possessing that particular tendency and I will take your Honours to why I submit that sexual interest in children is an unusual tendency and why that is extremely relevant where you can establish – where there is evidence capable of establishing a sexual interest in children.

That is my first contextual and structural point. The text also requires particularisation and looking at section 97(1), it speaks of a tendency to act in a particular way. In my submission, that is a wider concept than a tendency to commit a particular act and the focus of my learned friend’s submission is focusing too closely in relation to particular acts.

Particularity can be distinguished from similarity, in my submission. Particularity is an indication – it is something that separates out a person or a group from a wider group. It can also have common usage in terms of unusualness to pay particular attention, as to pay unusual attention to a particular thing.

Particularity is not a binary concept and much of this discussion about whether there is enough to achieve significant probative value is thinking of things in terms of it being binary, rather than realising that there are degrees of particularity and the assessment of particularity as a process of characterisation.

GAGELER J: I might be misunderstanding what you are saying. I had understood the significant probative value to be assessed to relate to the fact in issue.

MR BABB: Yes.

GAGELER J: Are you saying something different?

MR BABB: No, I am not, your Honour. I am really looking at the text here of section 97 and developing on the idea that it does not refer to similarity but it does refer to particularity.

EDELMAN J: The way you are using “particularity” is just “similarity” at a higher level of generality.

MR BABB: In some instances, that is right. I am saying that it is a question of generality and magnification in the way you look at something. It is really a question of classification and you cannot talk about absolutes, of there being a lack of similarity or a lack of particularity. Here, the prosecution particularised the tendency and the tendency was to act with a state of mind – that is, with a sexual interest in children – and a tendency to act on that interest in children by offending against children between six and 16 years of age.

KIEFEL CJ: That might be a convenient time, Mr Babb. The Court will adjourn until 2.15 pm.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

KIEFEL CJ: Yes, Mr Babb.

MR BABB: Thank you, your Honour. Your Honour, my third textual point is the point that has been made in relation to state of mind. If I could take your Honours to the text of section 97(1)(b)? That subsection requires consideration so that:

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.

That textual indication is that the assessment of probative value is not confined to the tendency itself and looked at in isolation that is made, having regard to all the evidence sought to be adduced by the party seeking to lead the tendency evidence. This is specifically at the time of assessing whether the evidence should be admitted. It is quite different to the analysis that the jury then undertakes which is necessarily, by the directions they are given, a sequential analysis. They have to be satisfied beyond reasonable doubt that this conduct has occurred in order for it to be able to be used to then go on to consider whether it establishes the tendency.

It is not appropriate for the Court to engage in piecemeal assessment of the tendency evidence and it is not a matter of looking at two complainants in a multiple complainant case and saying there is some significant dissimilarities between those two, therefore in that binary comparison between the two I do not find there is significant probative value. The Act is instructing that you take into account all of the evidence in determining whether there is significant probative value, all the evidence that is sought to be adduced.

NETTLE J: But only in relation to the count under consideration. You have got to treat each count separately on the basis of the evidence that is relevant to that count and no more.

MR BABB: Yes, but the evidence - - -

GORDON J: Which means you have to undertake the exercise you have just outlined in respect of each count.

MR BABB: You do, but the evidence that – in assessing whether that count has or – I should not limit myself to counts – that evidence has significant probative value, you are considering it in the context of all the totality of the other evidence – that is, all of the available tendency evidence. Therefore, what my learned friend has done in his submissions is talked about differences between the oldest and the youngest of the complainants. That is not the process that is required by the Act. You assess the evidence, the tendency evidence that is sought to be adduced in the factual matrix of all of the evidence.

NETTLE J: All of the evidence relevant to that count, not to evidence that is not relevant to that count but which might be to other counts.

MR BABB: Can I develop my point a little bit further. For example, tendency evidence that an accused had a sexual interest in a 15-year-old may not of itself be significantly probative in relation to considering tendency evidence in relation to an eight-year-old in and of itself if you are only looking at those two matters in isolation. However, if there is other evidence that you can take into account that the accused had a sexual interest and acted upon it in relation to nine-year-olds, 10-year-olds, 11-year-olds, 12-year-olds, 13-year-olds, you may well have significant probative value even though when you consider the evidence in isolation that may not be apparent.

GORDON J: I put to Mr Boulten, and I think he agreed with me, but is there not a two-stage process in a sense? First of all, you have to identify with particularity what is the tendency that is contended for.

MR BABB: Yes.

GORDON J: And then, consistent with your approach, you look at all of the evidence to work out whether that tendency can be drawn from that evidence, which is what you are in effect putting to us.

MR BABB: Yes.

GORDON J: Then there is a separate question and that is the extent to which that tendency bears upon the fact in issue. The fact in issue has to be looked at in respect of each count because each count raises a separate fact in issue – i.e., one count will be he touched her on the vagina; another will be he exposed his penis. They are different facts in issue. Is that not the way you do it?

MR BABB: I am looking at the act - - -

GORDON J: I am asking, consistent with 97, is that not what 97 is telling you to do?

MR BABB: You do have to consider the tendency evidence in relation to each act within the tendency, each count within the witness’s evidence to see whether it has significant probative value. But it is in the matrix of all of the available evidence that can be adduced by the prosecution. That can put a different complexion on it than when you look at – simply compare features between one complainant and another because we are talking about capacity of the evidence. If all of the tendency evidence goes in, it has a different capacity to reason.

This was taken up by his Honour Justice Beech-Jones in a New South Wales authority and, I am sorry it is not on my list of authorities but I would invite the Court to have a look at it when considering the matter further. The example there was an offender who offended against young children from the time he was 11 through to when he was 28. Justice Beech-Jones considered – and this is in BC v The Queen [2015] NSWCCA 327 at paragraph 87:

Considered in isolation there may be serious reason to doubt that evidence of such conduct by an 11 to 13 year old is capable of being “of importance or of consequence in establishing” that the applicant committed, say, counts 19 and 20 when he was aged between 25 and 28 years. However, the evidence of counts 1 to 3 is not to be considered in isolation but is to be considered with the other evidence to be adduced. That evidence is capable of demonstrating that the applicant engaged in the relevant form of conduct on nine occasions being when he was aged about ten years . . . aged between 11 and 13 . . . aged between 15 and 16 years . . . aged between 16 and 18 years . . . aged 19 years . . . aged 20 years . . . 21 and 23 years . . . and then aged between 25 and 28 years . . . Thus, for example, in relation to counts 19 and 20 the direct evidence in support of counts 1 to 3 is part of a body of evidence that is capable of showing that the applicant engaged in the relevant form of conduct on eight occasions from when he was aged 10 until he was aged between 21 and 23 years. In my view that evidence clearly satisfies s 97(1)(b). The same reasoning applies to the other counts.

GAGELER J: What was the relevant form of conduct that his Honour was referring to?

MR BABB: Child sexual assault with children of differing ages, the touching of their body parts and getting them to touch his body parts and on one occasion it escalated to penetration. So, your Honours, that is the point I want to make and I will come back to this in relation to the facts in this case, but that is my third textual point. The fourth is state of mind and it is specifically referred to in section 97, evidence of a tendency that a person:

had, is not admissible to prove that a person has or had a tendency . . . to have a particular state of mind –

and the text of section 97(1) indicates that tendency evidence is not limited to acts or behaviour but encompasses and is mediated through a finding as to a person’s state of mind. The Victorian Court of Appeal in Velkoski concluded at 173(f), the passage that the Court has already gone to, that tendency evidence relating to an offender’s “state of mind discloses only rank propensity which is not admissible as tendency evidence”.

In view of the clear statutory text, that proposition cannot stand, in my respectful submission. The express textual reference to a tendency to have a particular state of mind is also important because it demonstrates that the section is not focusing on consistency – necessarily on consistency of action. Rather, what is necessary is that the tendency be such that it could rationally affect the assessment of a fact in issue to a significant extent.

Where, as here, tendency evidence is relevant to an accused’s state of mind, it will operate, in my submission, in a similar fashion to evidence of motive, that an accused person had a motive to kill. The deceased is highly probative in a trial for murder even though the predictive power of it may be significantly less than an absolute correlation.

NETTLE J: But that is not what they are talking about in 173(f). This is not Plomp or Wilson sort of reasoning. This is to be read in the context of a succession of alleged sexual offences against different victims.

MR BABB: Yes, and - - -

NETTLE J: That is what it is directed to, not a person being shown to have animosity towards a particular victim and therefore being the more likely to kill him or her.

MR BABB: Okay, well, that is a point in relation to my analogy with motive, but in relation to paragraph 173(f), that statement simply cannot stand with the text of section 97(1), that the offender has a state of mind that “discloses only rank propensity which is not admissible as tendency evidence”.

NETTLE J: But do you disagree that if all the evidence shows is rank propensity, it would be not of significant probative value for the purposes of section 97?

MR BABB: Well, I do not understand the term “rank propensity” in relation to a state of mind. In my submission, that statement by the Court of Appeal is going towards a tendency to have a particular state of mind.

NETTLE J: All I read it as – and I may be wrong – is that it is not sufficient to be of significant probative value to show that an accused has a propensity to commit sexual offences without anything more.

MR BABB: And it goes on to say:

Resort to that particular state of mind to support tendency reasoning is impermissible.

NETTLE J: Well, that is the particularity that they are talking about, a particular tendency to commit sexual offences. As they have explained, I think, in the previous 20 pages, it requires something more to give it a degree of probative value that lifts it to the level required by section 97. Is that not right? Tell me why it is not, then, if it is not.

MR BABB: In my submission, the reference to rank or mere propensity is not easily understood - the fact that someone has a particular state of mind. In relation to child sexual offending, an interest in children between six and 16 years of age is relevant and has been considered to be relevant. That state of mind is the same sort of state of mind that Chief Justice Gibbs was talking about in Perry v The Queen (1982) 150 CLR 580 at 585:

Evidence that an accused person has a propensity to commit crimes of the sort of which he is charged or is the sort of person who is likely to commit such crimes would ordinarily be regarded as relevant -

NETTLE J: There is no doubt it is relevant so much as conceded. The question is whether it is significant probative value for the purposes of section 97, which is not wholly different but a significantly different question.

MR BABB: Yes.

KEANE J: Is the problem in Velkoski that at paragraph 171 where their Honours say:

The features relied upon must in combination possess significant probative value which requires far more than “mere relevance”.

And that paragraph concludes:

It is the degree of similarity of the operative features that gives the tendency evidence its relative strength.

Is the problem that their Honours are saying that in order to get beyond mere relevance to significant probative value, the mode of getting there is by reference to the degree of similarity and the features of the conduct that are relied on. Is that where the problem is, that this is the path, the path necessarily proceeds through similarities in the conduct?

MR BABB: I believe that is a big part of the problem, your Honour. It is overly focusing on the acts and not taking into account the other features that can add significant probative value to a state of mind, particularly where it is combined, as it is in every instance in this case, with a willingness to act on a state of mind.

GAGELER J: Mr Babb, at some point in your argument – it need not be now – I would be assisted by knowing what you say is the mischief to which section 97 is directed, given that you already had to pass through the hurdle of relevance. Why is there this additional requirement of significant probative value? It may actually inform the content of the requirement if we know why it is there.

MR BABB: I will try and deal with that immediately, your Honour. It is setting a threshold that has been decided should be higher than mere relevance.

KIEFEL CJ: Is that because it is permitting something the common law did not, so it is creating its own requirements?

MR BABB: That definitely is part of the background to it. It is partly, your Honours, to deal with the efficient processing of criminal trials. If it is a question of mere relevance, then that would open the door for much evidence to come in because of that statement from Justice Gibbs and, in my submission, much discreditable conduct by an accused person can be relevant to an assessment of the fact in issue. It is important that it be limited and that sufficiently probative tendency evidence only go in. In my submission, it is setting that threshold for what evidence goes in, but it is quite distinct from the section 101 assessment of prejudicial effect.

KIEFEL CJ: But together do they work as a recognition that there is a risk in allowing evidence of tendency in if it does not have particular probative value?

MR BABB: Very much so.

KIEFEL CJ: And you have to assess its prejudicial effect. They are the conditions.

MR BABB: Yes.

BELL J: That is reinforced by the circumstance that, unlike the provision governing hearsay, if tendency evidence gets in as relevant to another purpose this Act precludes its use for a tendency purpose unless it achieves that threshold, which is a further indication of the concern, so it would seem, with the risk of impermissible reasoning from tendency evidence to a conclusion of guilt in the case of a criminal case.

MR BABB: I would agree with all of that. There is a reflection of the concern in relation to the evidence, but it does not mean that common law principles should be imported into assessments of terms like “significant probative value” in section 97(1). That term should be determined using principles of statutory construction, including reference to the Australian Law Reform Commission history, which does take into account some of those common law concerns.

But the fact that it is called “tendency and coincidence” evidence was a clear indication that this was break from the common law and the test is quite a different one to the common law test that applied.

BELL J: The common law had largely set its face against the admission of propensity reasoning, if one reads the cases, and yet on occasions it had to give way and Straffen’s Case is the classic illustration of that difficulty – the fact that the accused had admitted to killing two women made it likely that he was the killer of the third corpse found near Broadmoor. But it was propensity reasoning. The distinction that is made in the Act is a recognition that on occasions evidence that does not meet the common law concept of similar fact evidence which essentially relies on coincidence reasoning nonetheless should be admitted when it passes that threshold.

MR BABB: I would agree with that. It is not useful, however, to talk about mere propensity or mere tendency. It is not clear what is meant by that.

EDELMAN J: But is that really saying anything more than your submission that one can start and look at a high level of generality and at a very high level of generality the question might really just be asking whether the tendency evidence could rationally affect the assessment of the existence of a fact in issue. In other words, it is just asking the relevance test. To get to the next hurdle, one needs to descend to a greater level of particularity.

MR BABB: If that is what it is doing, then I would accept that. But, in looking at the facts of Velkoski, in my submission it does not appear to be what that statement is referring to because Velkoski, in my submission, was a very clear example of a case where there was significant probative value in relation to the tendency of the state of mind and that seems to have been excluded as not something to be taken into account in determining whether the admissibility test had been made out.

EDELMAN J: But is that not just an evaluative exercise as to the degree to which you need to determine an assessment of particularity?

MR BABB: It is. But in the facts of that case the multiple complaints by children within a day care, the factors that were found to distinguish those matters which could be tried in a joint trial and those that could not were the specificity of the touching and the New South Wales’ position, and my position, is that that is not the determinative feature when you have section 97 that talks about a tendency – not just to act in a particular way, but to have a particular state of mind.

My last point in relation to the text is in that same section and it flows on from your Honour Justice Edelman’s point. This is an evaluative judgment and where it refers to in the text “the court thinks”, that is a recognition that, as was said in IMM at paragraph 45, it is an assessment of probative value which is a task for the sentencing judge. In my submission, in order to challenge a trial judge’s finding that established that evidence has significant probative value, it is necessary for the appellant to establish that the trial judge’s decision is infected by error or that the conclusion was not open.

NETTLE J: Is there authority that House v The King applies to section 97 in this - - -

MR BABB: There is in New South Wales, your Honour. The case of DAO is the authority and the citation is [2011] NSWCCA 63 and it is a five judge Bench which convened to determine this decision. The Chief Justice, Chief Justice Spigelman made that finding at paragraph 70, President Allsop made that finding at paragraph 157, Justice Simpson at paragraph 173 and Justices Schmidt and Kirby agreed at paragraphs 211 and 212.

NETTLE J: Thank you.

KIEFEL CJ: I think that is also reported at [2011] NSWCCA 63; (2011) 81 NSWLR 568.

MR BABB: It is, your Honour, I am sorry about that.

BELL J: If a judge admits tendency evidence, taking into account the judge’s assessment of the evidence that has been adduced or is to be adduced, and the appellate court reviewing the whole of the trial in light of the evidence that was admitted in the trial that was had, is it not open to the court to conclude that in the events that turned out it was an error to admit the evidence, as with other rulings?

MR BABB: That would feed into miscarriage of justice, in my submission - - -

BELL J: Yes.

MR BABB: - - - as opposed to – there would be a House assessment in relation to the trial judge’s determination, but definitely an appeal could be upheld on the basis of a miscarriage - - -

BELL J: Miscarriage, yes.

MR BABB: - - - of justice in the individual case.

BELL J: Yes.

MR BABB: Can I take – yes, sorry, your Honour.

BELL J: Can I just – just following on from that, the appellant has made some concessions today in relation to some of the tendency uses of evidence the subject of objection. The appellant submits that there was a miscarriage of justice because all of the evidence was admitted in relation to each count and the appellant’s case is that has produced a miscarriage. What does the Crown say to that submission?

MR BABB: It is difficult for this Court to consider a miscarriage beyond the grounds of appeal that are before this Court and they have not really been – the submissions have not really gone to that point generally. However, if on House principles, his Honour erred, then quite clearly this matter needs to go back for a retrial.

BELL J: Yes.

MR BABB: I do not make any proviso argument. My case is that all the evidence was admissible as tendency evidence.

BELL J: Yes.

MR BABB: If I could take your Honours, now, to my application of the principles to the present case? I am going to focus on what the primary judge did in admitting the evidence and, in my submission, it was a proper analysis. Can I take your Honours to page 1642 in volume 4, starting at line 15. The trial judge commenced by identifying the fact in issue and that is the second full paragraph on page 1642 – and correctly so, in my submission. Having identified the fact in issue, the trial judge proceeded to assess the capacity of the evidence, the tendency evidence:

to effect the assessment of the probability of the existence of a fact in issue.

In this respect, the tendency witnesses fell into two categories and the trial judge, separately, assessed both categories and drew separate conclusions. In relation to the first lot of the first tendency witnesses, as I will call them – and they are the witnesses JP, SH, AK, SM, EE, VOD, AA and BB, his Honour found that their evidence had significant probative value at 1642, line 12. Then, if you go over the page, there were the second tendency witnesses. They were LJ, VR and CS. His Honour found that they had significant probative value solely in relation to count 11 at page 1643, at line 38 and following.

Starting with the first tendency witnesses, his Honour found that the tendency which was capable of being demonstrated was, in a sense, a relatively broad one. This is at 1642, line 20 and following: “A sexual interest”, “sexually attracted to young females” and a willingness to act “upon that attraction at various times”.

In other words, the evidence demonstrated that the appellant had both the tendency to have a particular state of mind and that he engaged in particular conduct. In circumstances where the alleged tendency here is sexual interest in children, that is, in my submission, an unusual tendency and it is not one which is shared by a majority of the population, and the tendency was stated with sufficient particularity in this particular case to satisfy the statutory test established by section 97(1).

GORDON J: Just so that I am clear: where do you say that his Honour then did what I regard as the second step that I think you accept is that he then determines whether or not, assuming you are right about both the tendency and that the evidence taken as a whole, establishes that evidence - - -

MR BABB: Yes.

GORDON J: Where do I find the analysis in relation to each of the counts that it has significant probative value of the fact in issue in each of the counts?

MR BABB: His Honour does not break it up in a count-by-count or an act-by-act analysis. But what his Honour does do is carefully go through the relevant counts and the relevant acts, the totality of the material that he is going to take into account, as permitted by section 97(1)(b). And then at 1642, line - - -

GORDON J: As I understood your submission, it was that lines 18 and 19, in effect, were the sort of conclusion of that process, is it?

MR BABB: That is the finding in relation to – that the evidence is capable of establishing a tendency. And it is really at line 42 where his Honour comes back to what that tendency – the impact of that tendency is capable of having in relation to the probability of the existence of the fact in issue, which we know his Honour was considering because of his outline at 1642, line 20, where he said:

I have referred to the proposed evidence of each of the complainants in some detail. In my view, by doing so, the pattern of behaviour relied upon by the Crown is manifest, if not striking and requires little further analysis.

And his view that VOD, AA and BB are also capable of establishing – excuse me for a moment. The fact in issue that is referred to at 1642, line 12, is the fact in issue for every count. It really was the same in that his Honour said the issue in the trial that tendency evidence will bear upon is whether the acts, plural, occurred and whether the accused sexually assaulted each of the complainants and conducted himself as alleged in respect of each count on the indictment.

BELL J: Just going to 1643, you have pointed out that his Honour found in relation to count 11 that the evidence of the three adult tendency witnesses passed the threshold test of significant relevance.

MR BABB: Yes.

BELL J: But now, when one goes over to 1644 and his Honour’s conclusion in relation to the section 101 test, his Honour says:

As the tendency evidence upon which the Crown relies is admissible in relation to each count on the indictment, it is not appropriate to order that the counts be separated.

Do we understand from that that, notwithstanding the evidence of the three adult tendency witnesses was relevant only to count 11, in the wash-up it went in in relation to each count or - - -

MR BABB: No, your Honour, it only went in in relation to count 11 and we know that because of the directions that were ultimately given to the jury and that was the basis on which his Honour made his determination. If I could take your Honour to the written directions, which are at page 1585 they commence and at 1586 it is made clear that those three witnesses are only relevant to count 11.

GORDON J: Do you treat count 10 in any different way? Mr Boulten has submitted to us that we should look at count 10 differently.

MR BABB: Could I explain how I submit count 10 has to be approached - - -

GORDON J: At a time convenient to you, Mr Babb.

MR BABB: I will do it right now, your Honour. Count 10 has to be approached in a particular way. The tendency evidence from LJ, VR and CS, the second tendency witnesses, differed in character from the first tendency witnesses. The evidence of those second tendency witnesses only indicated that the appellant had a sexual interest in females generally and that is expressed at too general a level to amount to anything like having significant probative value to a sexual interest there - - -

GORDON J: That is count 11, is it not? Are you addressing count 11 - - -

MR BABB: I beg your pardon, yes, I am addressing count 11.

GORDON J: I am happy for you to finish count 11 but I think that is count 11.

MR BABB: I will. Let me - - -

GORDON J: Finish 11, that is fine.

MR BABB: In relation to count 10 – I apologise – the second tendency describes specific acts which were very similar to the acts described by SM.

NETTLE J: Count 10 is the relationship with the going-on 16-year-old girl, the consensual activity in the driveway of the parents’ home and in the park.

MR BABB: Thank you. Count 11 I am dealing with and then I will come to – is it?

GORDON J: Count 10 is the count that Justice Nettle just described to you. Count 11 is the person who worked on the movies, the film script.

MR BABB: Yes. I am dealing with count 11. In relation to count 11, the second tendency witnesses described very similar conduct. The evidence of the young adult women went to evidence that he deliberately exposed himself to them, that he touched them in a furtive way that was able to be explained as accidental touching but touching in a sexual way and on the sexual parts of the body and the evidence was particularly relevant in rebutting the appellant’s denial that he had ever been naked in front of SM.

In view of the specificity of the acts in relation to count 11, it was open to the trial judge to conclude that this evidence had significant probative value in relation to count 11 and SM’s evidence. The evidence of the second tendency witnesses was only admitted in that regard and the trial judge specified the tendencies relied on in respect of the second tendency witnesses completely separately from the first tendency witnesses.

So that evidence only went in relation to count 11. Of course, if count 11 was accepted, SM’s evidence could then be used as tendency evidence in the way outlined in respect of the first group of tendency witnesses – that is, if the jury was satisfied beyond reasonable doubt of the acts being committed against SM and that they had occurred that the jury would be entitled to consider whether those acts indicated that the appellant had the tendencies particularised, namely sexual interest in females under the age of 16 and if they also found that he touched her, that he was prepared to act on that sexual interest.

The jury could only use SM’s evidence as tendency evidence in respect of the other counts if they were satisfied of those two matters and that was made clear in the directions by the trial judge. The staged approach to the admission of the tendency evidence ensured that the evidence of the second tendency witnesses was only considered by the jury in respect to the count relating to SM and the jury were entitled to also consider SM’s credibility which was strengthened by the second tendency witnesses and other factors, like the immediate complaint she made to SB.

That does not mean that the evidence of the second tendency witnesses was used in any way in relation to the tendency, the sexual interest state of mind, sexual interest in young girls and the willingness to act upon that.

KIEFEL CJ: Does that mean it was not used as – are you saying its purpose was not as tendency evidence?

MR BABB: It was used as tendency evidence only in relation to count 11 and in no other way.

NETTLE J: Do you disagree with Mr Boulten that the judge did not direct the jury to that effect?

MR BABB: No. The judge did direct the jury - - -

NETTLE J: That they were not to use the evidence on count 11 in relation to any other counts.

MR BABB: It was made clear that those witnesses applied only in relation to count 11 in the written directions.

BELL J: That is at 1586 at line 19 and following where the direction states:

In relation to Count Eleven on the indictment, the Crown argues that the evidence of the tendency witnesses –

named:

establishes that the accused has a tendency to act –

in the identified ways. Some might think that falls short of clear direction – one is not to use that evidence in relation to the other counts that the jury are considering, particularly when one goes to the balance of the written direction.

MR BABB: This was not a grant of leave and it really falls foul of the rule 4 problem and really should not be considered in relation to this appeal. The written directions, the first draft of the written directions was handed to counsel six days before his Honour’s summing-up. They were revised and I can take your Honours to the opportunities for revision in relation to them.

Immediately after the giving of the direction, his Honour asked counsel if there was anything further in relation to that. In my submission, it is not a matter that should be considered on this appeal, considering the grant of special leave. It is going to the directions, which is really quite another matter and considering rule 4 in the circumstances of this case - - -

KIEFEL CJ: But in relation to the notice of appeal ground 1(i) - - -

MR BABB: Yes.

KIEFEL CJ: It is to the effect that the Court of Criminal Appeal was wrong in finding that the tendency evidence had significant probative value as required by section 97. I think the argument for the appellant is that it is necessary for this Court to look to see whether the tendency evidence has that significant probative value with respect to each count, and you do not disagree with that.

MR BABB: I do not dispute that but what we are devolving into is a sufficiency of directions and that really - - -

KIEFEL CJ: A miscarriage of justice question – yes.

BELL J: You say it was not - the tendency evidence of the three adult tendency witnesses was not admitted in relation to any but count 11.

MR BABB: Yes.

BELL J: That is your point, is it?

MR BABB: It is. It is.

BELL J: But the evidence of the complainant in count 11 was received as available for a tendency purpose in relation to all other counts.

MR BABB: Yes.

BELL J: I see.

NETTLE J: Mr Babb, is one to take it that the evidence on counts 1 to 6 was admitted in relation to count 11?

MR BABB: Yes.

NETTLE J: Similarly, counts 7, 8 and 9 admitted in relation to count 11?

MR BABB: Subject to the directions that they could only be used if the act itself was proved reasonable doubt.

NETTLE J: Of course.

MR BABB: And the jury determined that the act itself established the tendency.

NETTLE J: But it was put, in effect, that propensity – or a tendency to engage in sexual activity with little girls in the man’s home of the kind which was alleged in counts 1 to 6 was relevant to the determination of a tendency for the purpose of ascertaining whether he had a consensual sexual relationship with a 16-year-old in count 10.

MR BABB: Yes.

NETTLE J: And wiggled his hips and so forth in count 11.

MR BABB: Well, when one says “consensual”, I do not accept that proposition in its entirety - - -

NETTLE J: Let us just.....count 10 then, it was admitted in relation to count 10.

MR BABB: It goes in in relation to count 10. Your Honour has picked up on one aspect of conduct within his home. It was actually conduct within his home in relation to counts 3 and 4, within JP’s family home in relation to counts 1 to 2, at Manly beach in relation to counts 5, 6, 7, at a park and on the driveway near the home - at the home of EE in relation to count 10. So there are differences in the location, but that - - -

KIEFEL CJ: What is the common feature?

MR BABB: I will take your Honour to the common feature and perhaps if I could get back to Justice Gordon’s question about count 10, I will start there because similar issues arise but the common - - -

KIEFEL CJ: I should say the common feature which you say gives it particular probative value.

MR BABB: Yes. So the common features are the age of the children and the strength of the tendency of the state of mind, the extreme risk-taking behaviour in relation to all counts. They were all examples of risky behaviour. There were similarities that do not exist across every one of the complainants or the tendency witnesses but that are strong similarities between some of them and this is where the reasoning process that is available that is capable of being used by the jury is important because the jury did not need to reason simply from count 10 with the 15-year-old in relation to count 1 and 2 with the six-year-old in the bedroom.

They could reason in any number of ways and they could reason in relation to JP and SH which had similarities of the location where the act took place and find both of those complainants to be truthful in their evidence. They could look then when JP and SH – they are satisfied of those acts beyond reasonable doubt. You have got JP who is at an age very similar to EE, 15 years of age.

It is not a matter of looking between only two accounts and deciding whether there is significant probative value. In relation to count 11 in SM, the furtive touching, the putting the hand underneath her backside and wiggling the fingers, touching her breasts, vagina and bottom in examples of tickling is conduct that is very similar to the conduct engaged in in relation to JP with the swimming pool.

In relation to AK who said that there was furtive touching in the course of swimming and in the course of putting her head on the accused’s lap for the purpose of getting ear drops and sitting on his lap at the time of playing Pac-Man.

Furtive touching in relation to the tendency witness for which there were no charges, AA, where the accused went to her house for the purpose of a swim and said, “I like your swimming costume” and touched the logo on the swimming costume in a way that he was touching her breasts and down to her hip and bottom. There are similarities that occurred not across every complainant but significant similarities between groups of complainants that makes the tendency evidence capable of establishing significant probative value and did in fact establish significant probative value in this case.

Can I take your Honours to EE and the example that Justice Gordon asked me to highlight some of the features of EE and why I submit that it was properly admissible. The following features of EE’s evidence are important. EE was the daughter of a friend of the accused’s wife. She performed work experience with the accused’s wife and the accused was there at the time and the appellant was there at the time.

The nature of the relationship is of the same character as the other complainant and tendency witnesses, namely a close acquaintance rather than a stranger or a student randomly coming to do work experience. She was not a lineal descended family member. He had a degree of implicit power over her, which arose from his status as a known adult, which was consistent across all of the complainants and tendency witnesses.

Whilst the offending conduct occurred when she was 15 years old, they first met when she was eight or nine years old. That is at appeal book 435. The evidence of EE also demonstrated the brazenness and risk-taking behaviour where there was a real risk that the appellant’s conduct, which he must have known to be wrong, would be discovered. For example, he was asking her to kiss him in return for tutelage about the particular computer system in the attic of the office space while his wife was downstairs at the time that that was happening.

He kissed and touched her and was touched by her on the driveway of her own home at about 5.30 or six in the evening at a time when it might be expected that someone could come up or down the driveway and they attended a park together, Tunks Park, and there was behaviour there.

The other similarities included the pattern of the behaviour that is seen with the other tendency witnesses of there being a desensitisation which preceded the conduct in the form of touching disguised as accident and that was the touching from underneath the seat, so that he was touching her from up underneath the seat and prodded her in the area of her vagina and further, on one view of it, the innocent “Give me a kiss because I’ve just taught you how to use the computer”.

As I have submitted, it is a mistake to piecemeal assess EE by reference to only those complainants – for example, SH, which was the most distant in age and it occurred in a bedroom. Really, the process is different to that because we are talking about the capacity that the evidence bore, and that included the capacity of a jury to reason sequentially and find that SH was proved, which would then prove or assist in proving JP, who was 14 to 15 years old. Then that really is an important impact in that the difference in age is not so significant because it is the combination and the sexual interest, which can be built up by a combination of witnesses, can be stronger. Similarly, EE can be taken into account that way so that it has significant probative value in considering the evidence as a whole.

EDELMAN J: All of this evidence to which you are referring, I take it, is the actual evidence that was given? Was there any relevant difference between that actual evidence that was given and the witness statements of the witnesses?

MR BABB: No, your Honour, they were very similar. I would endorse a consideration of the summing-up. His Honour was extremely thorough, in terms of the summing-up, in highlighting the evidence that was given and the acts that actually took place. And there were no significant dissimilarities between the evidence taken into account for making the determination about admissibility and the evidence that ultimately – excuse me for one moment. There was no application by counsel for an amendment following the admission of the evidence which supports that.

BELL J: In some of your submissions, Mr Babb, you have referred to particular items of evidence suggesting similarity with some counts and the like. But, as I understand your position, you support the approach of the Court of Criminal Appeal, which was to consider that proof of a tendency to be sexually attracted to girls under 16, opportunistically, when they were in the appellant’s company, and to act on that interest, suffice to get over the section 197 hurdle?

MR BABB: Yes, yes. There was that higher level assessment of the particularisation of the tendency but that is permissible, in my submission, where you have an unusual tendency. You would not – a high level assessment like that would not meet the test of significant probative value in relation to some offending.

BELL J: Well, credit card fraud or something of that sort.

MR BABB: A hundred per cent.

NETTLE J: What about, say, child homicide, which, presumably, would be much rarer than child sexual molestation?

MR BABB: Child homicide is different in that it is unlikely that it is a state of mind that impacts your attitude towards children as a whole. There may be a case, your Honour, but every case is depending on its facts. That may be. But in relation to child sex offending it is an unusual tendency.

NETTLE J: Regrettably, it is not all that unusual.

MR BABB: No, that is not determinative. However, I would support the position that has been taken in the United Kingdom - and we refer to this in our written submissions at 6.25 - in the case of Hanson [2005] 2 Cr App R 21 at 49. Child sexual abuse is a comparatively clear example of unusual behaviour. The decision of the Appeal Court in the United Kingdom in DPP v P (1991) 2 AC 447 at 461 that you do not generally demand anything more distinctive than the paedophile’s or the pederast’s stock in trade – and New Zealand - - -

GAGELER J: What is the proposition you get from that observation? Is it a proposition of law? Is it an empirical observation? What is it?

MR BABB: My submission is that the nature of the offending can impact upon the significance of the tendency evidence upon the fact in issue and it depends very much on the type of offending and with child sexual assault by a middle-aged man in a large number of instances that it gains significance from its unusualness.

GAGELER J: You hardly need to go to an English case to establish that.

MR BABB: No.

GAGELER J: I am not sure what a judge saying it in another country adds to your proposition anyway.

MR BABB: No, thank you, your Honour. Can I assist your Honours further?

KIEFEL CJ: Thank you, Mr Babb.

MR BABB: They are my submissions.

KIEFEL CJ: Mr Silbert.

MR SILBERT: Ms Rogers will make the oral submissions on behalf of the intervener.

KIEFEL CJ: Thank you. Yes, Ms Rogers.

MS ROGERS: Your Honours, I do not propose to stick by script to my speaking notes because some of the paragraphs in there have already been ventilated. So perhaps what I might do is start at paragraph 4 of my speaking notes where we say that the Velkoski approach to significant probative value requiring some degree of similarity of features between the previous acts and the offences charged ignores both the statutory language and uses a common law approach to the admission of similar fact evidence which we say is erroneous.

In Velkoski, and Mr Babb has already touched upon this, notwithstanding that Mr Velkoski’s offending was committed against very young children in his home while he was assisting his wife with the running of her family day care centre, the Court of Appeal in Victoria restricted the tendency evidence on appeal to seven charges in relation to two female children, complainants MS and OA.

Now, effectively, there was a boy involved in that, the charge 1, GS, but the jury returned a verdict of not guilty in relation to that. So the Court of Appeal in Velkoski said, look, these seven charges in relation to the female complainants essentially involved exposing his penis or encouraging a complainant to touch it, and the court went on to say that the remaining nine charges lacked those features. They related to grabbing the boy’s penis while play fighting.

There were two charges of putting his hand down one of the female, OA’s, underwear and fingers on top of her vagina, and charges 10, 11 and 15, his hand was down again OA’s underwear and touched her bottom, so some of the charges that were hived off as being not cross-admissible still involved the same child complainants. There were further charges in relation to OA, I should say, rubbing himself against the front of OA and so on.

The court in Velkoski said that these charges did not possess any distinctive or similar feature of the kind and, as I said, this was in the context of the children being aged 2, 3, 4 and being in his house while his wife ran her family day care centre. Velkoski remains the seminal authority in Victoria in relation to both tendency and coincidence evidence.

I want to pass to my speaking notes paragraph 6 about the further difference between New South Wales and Victoria is the weight accorded to the nature of the charged act. Again, Mr Babb has touched upon this in relation to BP’s Case, I think. The commission of a sexual assault by an adult male on a child who is a family member is regarded as unusual according to ordinary benchmarks of human behaviour. It may not be unusual in criminal courts in this country, but the standard is not the criminal courts and the types of cases that come before it.

In Victoria, and I suspect in all other jurisdictions in Australia, child sexual assault cases make up essentially the bread and butter of most of the County Court, District Court or intermediate court trials, and invariably it is the occurrence of the act which is in issue. It is not identity. The child invariably knows the perpetrator and invariably it is put to the child that the child is lying in his or her evidence.

I digress. It is an unusual behaviour for an adult man to sexually assault a child. It is also an unusual characteristic to have a sexual interest in a child and there – I am leaping ahead a little bit and I will come back to that – sorry. The point that was made in Velkoski at paragraph 173(f) about sexual interest only being ranked propensity and being highly prejudicial, in my submission, cannot be correct. We adopt Mr Babb’s approach which is that it is against the statutory text.

Further, one cannot commit a sexual offence against a child unless one already has an interest in – a sexual interest in a child. There is not – it is not a matter of a random adult male who never has any sexual interest in any children suddenly committing sexual misbehaviour on a child. There must already be an interest. So men who have a sexual interest in a child must be a relatively small group of people in the community. That of itself is no offence. However, some of that pool of people then go on to commit an act of sexual misconduct against a child. There is a willingness to act on that sexual interest and that means that they must fall within a smaller group of that pool of men.

GAGELER J: But the question is how predictive that is of them doing that on another occasion – a subsequent occasion? Is that not the question?

MS ROGERS: Yes, but it also depends, as Mr Boulten kept saying, about the facts and circumstances of a case. If you had a person who was found guilty of a child sexual assault offence 30 years ago and they are clean, no further problems with the law but today they get charged with a child sexual assault offence, one would not expect in the ordinary scheme of things that that previous act would be used as tendency evidence because there is just too enormous a lapse of time in between.

But, in one of the examples that Mr Babb used, if there is a regularity with which the person is said to have committed sexual offences against a child or children, that must add a completely different complexion to the first example that I gave about that enormous lapse of time. So I am not ducking your Honour’s question but I am simply saying that it is trite to say that these cases generally speaking all depend on the facts and circumstances that they have.

There was the case of Rapson put on, I hope, your Honours’ Bench this morning. I am now at paragraph 8 of my speaking notes. Rapson (2014) 45 VSCA 103, we say is an example of the application of the Velkoski approach. Rapson was a school teacher charged with committing various sexual offences against eight male pupils in his charge. He was convicted at trial and appealed on the basis that the tendency evidence was improperly admitted. The Victorian Court of Appeal separated out the tendency evidence into essentially three groups of complainants primarily on the basis of the similarity of the charged acts.

There were two complainants, H and F. They were held to be cross-admissible. Most of the charges relating to H and F related to anal rapes with one exception and there was an indecent assault where the accused tried to force his penis into the complainant’s mouth. H was aged 16; F was 12.

The second category of complainants - there were four: A, E, D and G. Their tendency evidence was held to be – rather the acts charged in relation to those four boys was the external touching of the genitals and they were put into a second category with a tendency witness. The third category involved complainants B and C and the similarity of the charged acts was a squeezing or grabbing of the genitals. We say that Rapson illustrates the Velkoski approach that has been taken in Victoria by the Court of Appeal since Velkoski was handed down.

BELL J: Can I just inquire, Justice Keane directed attention in Velkoski to paragraph 171, at which their Honours said in the concluding sentence:

It is the degree of similarity of the operative features that gives the tendency evidence its relative strength.

To the extent that you submit that Velkoski is wrongly decided, do we find the error in the statements that appear in paragraph 171, together with 173(f)?

MS ROGERS: Perhaps, but also at paragraph 3 where:

The principle consistently applied in this court is that the evidence must possess sufficient common or similar features with the conduct in the charge in issue - - -

BELL J: Yes.

GORDON J: Is that the point you make in paragraph 10 of your speaking notes?

MS ROGERS: Yes, your Honour, and it is what I was referring to before about how it is not usually identity that is the fact in issue; it is the occurrence of the charged act which is the fact in issue. Of course the prosecution puts up a child complainant as being a truthful witness. When the defence, as they invariably do, put to the child that the child is lying, mistaken, fantasised, dreamt it, what that means is that any account that that child complainant gives about any sexual misconduct by the accused towards him or her, there is no need to worry about the particular acts that are alleged or requiring that degree of similarity because it is a blanket proposition put to the child complainant: “You are lying. You are lying that there was any sexual misconduct”, let alone a touching of the vagina in the swimming pool, a touching of the bottom at the breakfast table or whatever it happens to be. It simply, to some extent, disappears because of the nature of how child sexual assault matters are run where occurrence is the fact in issue.

I am up to paragraph 11 of the speaking notes. This is the state of mind. I am unsure about whether I need to say anything further. Of course, I adopt what was said by Mr Babb in terms of the statutory language and I am not sure whether your Honour Justice Nettle had any questions about the state of mind tendency, to have a particular state of mind, sexual interest in female children or not.

NETTLE J: No, thank you. I think I have grasped the thrust of the submission.

MS ROGERS: I am skipping over now to paragraph 15 of my speaking notes. We say that there is really no difference between whether the sexual acts are penetrative or non-penetrative; any degree of sexual acts are possible to be committed against a child and it is very elegantly and nicely picked up by Justices Nettle and Gordon in IMM’s Case at paragraph [178].

I will not quote that because it is in - well, I can quote it - because it is really a bit of a linchpin surrounding the argument that the intervener has. Their Honours there were talking about charged sexual acts - - -

KIEFEL CJ: I am sorry, which paragraph number is that?

MS ROGERS: Paragraph [178].

KIEFEL CJ: Thank you.

MS ROGERS:

Such may be the nature of one human being’s sexual attraction to another, and the likelihood that a sexual attraction is fulfilled or sought to be fulfilled on different occasions by different sexual acts of different kinds, that evidence of uncharged sexual acts, although different from the charged sexual acts, has the capacity to show that the alleged offender had an ongoing sexual attraction to the complainant and endeavoured to gratify it in a variety of ways.

NETTLE J: That is a bit different there, inasmuch as the same woman on each occasion there, whereas we are talking about different complainants in this case.

MS ROGERS: That is true but the sentiment underlying it is that when one talks about child sexual assault, it is unrealistic, in my submission, to suppose that an offender only targets two-year-olds, only targets four-year-olds, only targets 11-year-olds. It all depends on the circumstances and human frailties and opportunities that are presented to an offender. It is highly unrealistic to expect that an offender only ever anally penetrates a child and never does any other kind of sexual act with it.

It depends on the grooming behaviours that have occurred before that, the degree of emotional attachment or there are endless numbers of ways that offenders perpetrate sexual acts against children.

GORDON J: Does not 97 address those sort of variety of circumstances to which 178 is addressed, whether or not the complainant is one or more, by reference to the way in which you craft your tendency notice? In other words, the Crown has to give the tendency notice and does that not itself, in effect, answer all those sort of variations? You see here the tendency notice is put in different ways. You may pick it up by reference to conduct, you may pick it up by reference to age. Conduct is set out in a variety of ways in paragraph 25 in this tendency notice.

MS ROGERS: That is so. It is incumbent upon the Crown to craft the tendency notice in a proper way. However, the intervener’s submission is that it is a very unusual behaviour for an adult male to be sexually attracted to female children - - -

KIEFEL CJ: I think we understand that point.

MS ROGERS: Yes, yes, thank you. I am sorry, I am not saying anything that your Honours do not know about. Unless there is something further that I can add, those are my submissions.

KIEFEL CJ: Thank you. Any reply submissions, Mr Boulten?

MR BOULTEN: I do not think I can assist in reply.

KIEFEL CJ: Thank you. The Court will reserve its decision in this matter and adjourn until 9.45 am tomorrow for pronouncement of orders and otherwise until 10.00 am.

AT 3.40 PM THE MATTER WAS ADJOURNED