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BC v R [2019] NSWCCA 111 (5 June 2019)

Last Updated: 5 June 2019

Case Name:	BC v R
Medium Neutral Citation:	[2019] NSWCCA 111
Hearing Date(s):	3 April 2019
Decision Date:	5 June 2019
Before:	Leeming JA; Ierace J; Hidden AJ
Decision:	(1) Grant leave to appeal and extend the time to appeal to 11 May 2018. (2) Quash the applicant’s convictions for counts 1 to 3 and enter verdicts of acquittal for those counts. (3) Dismiss the appeal against conviction in respect of counts 4 to 20. (4) Direct that the applicant file and serve any further submissions as to sentence within 21 days of today, and direct the respondent to file and serve any submissions in response within 14 days thereafter, those submissions to include whether any application is made for a further oral hearing, in default of which the remaining issues will be determined on the papers.
Catchwords:	CRIMINAL LAW – appeal against conviction – appellant charged with child sexual assault offences against four young children – appellant found guilty and aggregate sentence imposed – counts one, two and three involved offences committed when appellant aged between 11 and 13 – whether guilty verdicts on those counts were unreasonable – whether Crown had rebutted doli incapax presumption – verdicts on counts one, two and three quashed – whether evidence of complainants admissible as tendency evidence on counts involving other complainants – whether probative value of evidence substantially outweighed prejudicial effect – appeal allowed in relation to conviction on counts one, two and three and dismissed in respect of counts four to twenty
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW), s 5 Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A Criminal Appeal Act 1912 (NSW), s 5F Criminal Procedure Act 1986 (NSW), ss 130A, 306B Evidence Act 1995 (NSW), ss 97, 101, Dictionary
Cases Cited:	Armstrong v R [2017] NSWCCA 323 Aubrey v R [2015] NSWCCA 323 BC v The Queen [2015] NSWCCA 327; 257 A Crim R 340 BC v The Queen [2016] HCASL 166 BP v Regina; SW v Regina [2006] NSWCCA 172 DAO v R (2011) 81 NSWLR 558; [2011] NSWCCA 63 DS v R [2018] NSWCCA 195 El-Ali v R [2015] NSWCCA 300 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Hughes v The Queen [2017] HCA 20; 92 ALJR 52 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Johnson v The Queen  [2018] HCA 48 ; 92 ALJR 1018 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 McPhillamy v R [2017] NSWCCA 130 McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R v ALH (2003) 6 VR 276; [2003] VSCA 129 R v Grech; R v Kadir [2017] NSWCCA 288 Regina v PWD [2010] NSWCCA 209; 205 A Crim R 75 RH v R [2014] NSWCCA 71 RP v The Queen (2016) 259 CLR 641; [2016] HCA 53 The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55 The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40; 92 ALJR 846 Turner v R [2017] NSWCCA 304
Category:	Principal judgment
Parties:	BC (Applicant) Regina (Respondent)
Representation:	Counsel: J Stratton SC with T Hennessy (Applicant) B Baker (Respondent) Solicitors: Laith Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/19938; 2014/19940; 2014/175052
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	District Court of New South Wales
Jurisdiction:	Criminal
Date of Decision:	7 December 2016 (verdict); 18 May 2017 (sentence)
Before:	Her Honour Judge Hock
File Number(s):	2014/19938; 2014/19940; 2014/175052

JUDGMENT

1. THE COURT: From 28 November to 7 December 2016, the applicant was tried at Newcastle District Court before her Honour Judge Hock and a jury on an indictment alleging 20 counts of child sexual assault offences. The counts were alleged to have occurred between 1994 and 2011, involving assaults against four different complainants. The jury found the applicant guilty on all counts (on counts 19 and 20 he was found guilty of statutory alternatives to the counts charged). He was sentenced on 18 May 2017 to an aggregate term of imprisonment of 14 years, dating from 7 December 2016, with a non-parole period of 10 years and six months to expire on 6 June 2027.
2. By an amended notice of appeal filed on 15 March 2019 containing three grounds, the applicant seeks leave to appeal against his conviction and sentence. By ground 1, the applicant contends that the convictions for counts 1 to 3 were unreasonable and inconsistent with the evidence. The basis for that contention is that the evidence relied upon by the Crown was insufficient to rebut the doli incapax presumption, which it was common ground applied to these counts. Ground 2 challenges the admission of the evidence of each complainant as tendency evidence in respect of each count involving the other complainants. Ground 3 is merely that “if ground one succeeds, it is submitted that the applicant should be resentenced to a new and lower aggregate sentence”. No separate error in the sentence imposed is contended for.
3. For the reasons which follow, we have concluded that ground 1 of the appeal should be upheld, but that the appeal in relation to ground 2 should be dismissed. It will thus be necessary to set aside the guilty verdicts only in respect of counts 1 to 3, and to resentence the applicant to a new aggregate sentence, as contemplated by the contingent sentence appeal in ground 3.

Procedural background

4. Before coming to the nature of the alleged offending and the applicant’s grounds of appeal, it is necessary to set out the procedural history, which is not without complexity.

The application for separate trials

5. The applicant originally stood trial in the District Court before her Honour Judge Syme on 9 June 2015. In advance of that trial, the Crown served a notice under s 97(1)(a) of the Evidence Act 1995 (NSW) informing the applicant of the Crown’s intention to adduce tendency evidence. The applicant applied at the outset of the trial to separate the counts, principally on the basis that the evidence of each of the four complainants was not admissible as tendency evidence in respect of the counts relating to each other complainant. That application was rejected by Judge Syme in an oral judgment delivered on 9 June 2015. Her Honour held that the evidence in respect of each count would be admissible as tendency evidence in respect of each other count.
6. On 10 June 2015, the applicant sought to adjourn the trial to enable him to appeal the tendency evidence ruling pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW). That application was refused.
7. For reasons unrelated to the application for separate trials, the trial was aborted four days later. By that time, each complainant had given evidence and had been cross-examined.
8. The applicant then lodged an application for leave to appeal to this Court under s 5F(3) against Judge Syme’s decision to admit the tendency evidence and refusal to sever the indictment. By a majority decision (Beech-Jones J, with whom Simpson JA agreed; Adams J dissenting) delivered on 18 December 2015, this Court granted the applicant leave to appeal but dismissed his appeal: BC v The Queen [2015] NSWCCA 327; 257 A Crim R 340. An application for special leave to appeal to the High Court was dismissed on 21 July 2016: BC v The Queen [2016] HCASL 166.

The applicant’s retrial

9. The applicant having exhausted his rights of appeal, on 28 November 2016 his retrial commenced before Judge Hock. The recorded evidence given by the complainants at the first trial was used by the Crown in the second trial pursuant to s 306B of the Criminal Procedure Act 1986 (NSW).
10. Section 130A of the Criminal Procedure Act governed the application of the rulings from the first trial to the second trial:

“130A Pre-trial orders and orders made during trial bind trial Judge
(1) A pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding.
...
(3) If proceedings on indictment before a trial Judge are discontinued for any reason, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to those proceedings is binding on a trial Judge hearing any subsequent trial proceedings relating to the same offence as the discontinued proceedings unless, in the opinion of the trial Judge hearing the subsequent trial proceedings, it would not be in the interests of justice for the order to be binding.
(4) In this section, pre-trial order means any order made or given after the indictment is first presented but before the empanelment of a jury for a trial.
(5) To avoid doubt, this section extends to a ruling given on the admissibility of evidence.”

11. The applicant made no application for the exclusion of the tendency evidence at his second trial, nor for severance of the indictment. That is to say that the applicant did not invoke the proviso in s 130A permitting a trial judge to depart from an earlier ruling where “it would not be in the interests of justice for the order to be binding”. As set out above, the jury found the applicant guilty on 20 counts on 7 December 2016, and he was sentenced by Judge Hock on 18 May 2017.

The present application for leave to appeal

12. The applicant lodged an application for leave to appeal to this Court on 11 May 2018. An extension of time is required because the application was filed some 12 months after his sentencing. The arguments advanced in support of each ground of appeal are not without substance, and the extension was not opposed by the Crown. In those circumstances, the interests of justice require that leave to appeal be granted.
13. The grounds in the draft notice of appeal bear at least a superficial resemblance to those relied upon in support of the applicant’s earlier appeal to this Court. Putting aside the sentence appeal in the present application, both appeals essentially raised two categories of contention: (a) the application of the doctrine of doli incapax (the applicant was aged between 11 and 13 at the time of counts 1 to 3), and (b) admission of the tendency evidence from the four complainants.
14. Notwithstanding these similarities, there are substantial differences between the application currently before this Court and that which was the subject of its earlier decision. First, the issues arising from the doli incapax presumption have taken on a new light following the jury’s application of the presumption to the facts of the case. In this Court’s earlier decision, doli incapax was said by the applicant to be relevant because the primary judge had failed to take it into account in her Honour’s refusal of the severance application. In short, the applicant had submitted to Judge Syme that it would be unfair for him to have to defend charges attracting a rebuttable presumption of his incapacity while at the same time defending charges for which he would be entitled to no such presumption. The nature of the applicant’s current argument involving doli incapax is quite different. It is submitted that the convictions for counts 1 to 3 were unreasonable and inconsistent with the evidence, which the applicant says was insufficient to rebut the doli incapax presumption. Accordingly, for present purposes the consideration of doli incapax in the earlier decision can be put to one side.
15. Secondly, there are differences between the tendency notices served by the Crown for each trial. The notice of 11 May 2015 for the first trial was more broadly drawn than that relied upon for the second trial, dated 4 November 2016. (The earlier notice is not contained in the appeal documents, but it is partially reproduced in this Court’s earlier decision at [90]; the later notice is reproduced below.) The first notice contained an alleged tendency which was absent from the second notice: “[The applicant] used his position of trust as either a relative of such children or as a family friend of such children to facilitate the sexual abuse of them.”
16. Thirdly, the scope of the Crown’s tendency evidence was different at each trial. On the one hand, in the first trial the Crown foreshadowed that some uncharged acts involving one of the complainants would be relied upon as tendency evidence. On the other hand, the jury in the second trial were instructed that only the evidence going to the counts on the indictment was cross-admissible.
17. Fourthly (and this point is not unrelated to the second and third points), the precedential status of this Court’s earlier decision on the admissibility of the tendency evidence — which was essentially an unsuccessful appeal from the same ruling as that challenged in this appeal — is now the starting point for consideration of ground 2. It will be necessary to deal with this later in these reasons in some detail.

Factual background and the Crown case at trial

18. It is necessary to give a brief overview of the nature of the alleged offending as it related to the 20 counts.
19. The alleged offences spanned a period from 1994 to 2011. The applicant was born in 1982, and was thus himself a child at the time of some of the charged conduct. The four complainants — K, J, E and JB — were (subject to some imprecision about the exact dates of the alleged offences) between the ages of three to 13. K and JB are male; J and E are female.
20. At the outset it may be noted that the defence case at trial was that the conduct alleged in each count did not occur, and that each complainant had fabricated the allegations. Each complainant was cross-examined accordingly. The applicant did not give evidence.

Counts involving K

21. Counts 1 to 3, which are the sole subject of ground 1 of the draft notice of appeal, occurred between 1994 to 1996, when the applicant was between 11 and 13 years old. K was the complainant; he was aged 5 to 7 at the time. K gave evidence that at a party hosted by K’s mother, the applicant gave beer and a cigarette to K, who then felt unwell and retired to his bedroom. The applicant entered K’s bedroom, where K told him that he felt sick. The applicant said, “I know something that will make you feel a bit better, but you can’t tell anybody”. The applicant then fondled K’s penis (count 1), and performed oral sex on him (count 2). The applicant then said to K, “I’m feeling a bit sick too can you do this back to me?”, whereupon K performed oral sex on the applicant (count 3).
22. K gave evidence that he heard the noise of someone moving around the house, at which time the applicant said to K: “Quickly stop, stop”, and went to check outside the door. Before leaving the bedroom, the applicant told K, “I’m going to go now but you can’t tell anyone what just happened” or else K would get into trouble.
23. The applicant’s age at the time of counts 1 to 3 is significant as it attracts the doli incapax presumption, whereby it is for the Crown to prove (in addition to the ordinary constituent elements of the offence) that, in light of the applicant’s age, he knew that his acts were seriously wrong at the time they were committed.
24. At the conclusion of the prosecution case, then counsel for the applicant made a no case submission in respect of counts 1 to 3. The stated basis for that application was that the Crown had not adduced sufficient evidence to go to the jury to rebut the doli incapax presumption. The primary judge rejected the application. In support of ground 1 of the appeal (which is addressed below), the applicant now maintains that the evidence relied upon by the Crown rebutting the presumption was incapable of sustaining a guilty verdict for those counts.
25. K was also the complainant for counts 8 to 16, which spanned from 1999 to 2003. Counts 8 to 11 arose from an episode between 3 July 1999 and 31 December 2000 when the applicant was looking after K while both of their parents were out. K was 10 to 11 years old and the applicant was 16 to 18 years old. While K was playing a video game, the applicant fondled K’s penis for about one to two minutes (count 8). When it was the applicant’s turn to play the video game, the applicant told K that it was his turn to fondle the applicant’s penis (count 9). The applicant then performed oral sex on K (count 10), and made K fellate him (count 11). The episode ended when a car pulled up to the house, whereupon the applicant told K, “remember, you can’t tell anybody about what we do”.
26. Counts 12 to 15 related to a separate occasion which K estimated to have occurred a couple of weeks after the events giving rise to counts 8 to 11. The applicant and K were in a caravan in K’s backyard when the applicant fondled K’s penis (count 12) and had K do the same to him (count 13). The applicant then performed oral sex on K (count 14) and had K do the same to him (count 15).
27. Count 16 occurred between 3 January 2001 and 4 January 2003 when K was about 12 years old and the applicant was about 19 years old. The applicant and K were walking a dog in bushland near K’s house. The applicant said to K, “can you suck my dick”. K refused. The applicant then became angry, at which point K became frightened and complied. This act lasted for about a minute and a half, after which K said that he wouldn’t do it anymore and that if the applicant came near him again he would “bite your dick off and I’ll go and tell people what’s happened”.

Counts involving J

28. J, who was born in 1993, was the complainant for counts 4 to 7 and 18. Counts 4 to 7 were alleged to have been committed between 14 September 1997 and 15 September 1998, when J was 3 to 5 years old and the applicant was 15 to 16 years old. J gave evidence that she and the applicant were left alone when J’s father went to the shops. The applicant made J go into his bedroom with him and closed the door, sitting next to her on his bed. The applicant touched J’s genitals over her clothing, asking her if he could touch her there, to which she said “yes” (count 4). The applicant then performed cunnilingus on her (count 5). Following that, the applicant exposed his penis and told J that she could suck or grab it; she grabbed it for a short time (count 6). The applicant then attempted to have penile vaginal intercourse with J, with penetration occurring to a small extent (count 7). The applicant stopped when J’s father knocked on the front door. Before answering the door, the applicant told J words to the effect that “this is going to be our little secret” and not to tell anybody.
29. Count 18 was alleged to have been committed between 14 September 2003 and 15 September 2004, when J was about 10 years old and the applicant was 21 to 23 years old. The applicant was living with J’s family at the time. J and the applicant were left home alone one evening. The applicant called J into his bedroom. She sat on his bed and he put his hand on her genitals, over her clothing, and asked if he could touch her there. She said “no”, to which the applicant replied “ok” and told her to make sure she didn’t tell anyone.

Count involving E

30. E, who is J’s sister, was the complainant in respect of one count, count 17, which is alleged to have occurred between April 2002 and April 2003 when E was about 5 years old and the applicant was about 20 years old.
31. E’s evidence as that while she was staying in a house with the applicant, she awoke in the middle of the night and entered the room in which the applicant was sleeping, asking him where her mother was. The applicant had E come onto his bed and lie on top of him. He placed his hand over her vagina and asked her if this was ok, to which she replied “no”. He put his hand slightly higher and asked the same question, to which he received the same response. He then put his hand inside her pyjamas and touched her genitals. At this point E’s mother returned and E ran out and hugged her. When her mother asked her what was wrong, she replied that she had missed her.

Counts involving JB

32. Finally, counts 19 and 20 concerned alleged offending against JB, who is the applicant’s first cousin. These counts are alleged to have occurred on two consecutive mornings sometime between 31 December 2008 and 1 February 2011, when the applicant shared a house with his father, JB and JB’s mother. JB was between four and six years old; the applicant was 25 to 28 years old.
33. The Crown case was that on both occasions, the applicant told JB that he could not watch television until he sucked the applicant’s penis. JB complied, stopping when the applicant told him to. The applicant told JB not to tell his mother.

Sentence

34. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the primary judge imposed an aggregate sentence of 14 years dating from 7 December 2016, with a non-parole period of 10 years and six months. As required by sub-s 53A(2)(b), her Honour recorded the indicative sentences for each count for which the applicant was found guilty:

35. The applicant does not contend that there was any discrete error in either the aggregate or the indicative sentences. Evidently, there was a substantial degree of concurrency in the aggregate sentence imposed by her Honour; the indicative sentences for each count add to more than 43 years.

Appeal against convictions

36. The applicant’s amended draft notice of appeal contains two grounds challenging his convictions:

“Ground One: the convictions for counts one to three were unreasonable and inconsistent with the evidence.
Ground Two (a): In the first trial the learned judge erred in admitting the tendency evidence against the applicant and not ordering separate trials without having determined whether the probative value of the evidence substantially outweighed any prejudicial effect it might have on the applicant pursuant to s 101 Evidence Act 1995 (NSW);
(b) the trial judge erred in admitting the tendency evidence in this trial and in not ordering separate trials.”

37. We shall deal with these grounds in turn. Only if ground 1 succeeds and ground 2 fails will it be necessary to address the contingent appeal against sentence (ground 3).

Ground 1 – Doli incapax

38. Though it is not disclosed in the ground of appeal as framed, the basis for proposed ground 1 is the rebuttable presumption that children between the ages of 10 and 14 cannot be guilty of a criminal offence by dint of their age – doli incapax. The applicant submits that the Crown did not adduce evidence capable of rebutting this presumption (which it was and is common ground applied to each of counts 1 to 3).
39. The applicant does not challenge any aspect of the primary judge’s directions to the jury. Indeed, there is general agreement between the Crown and the applicant as to the applicable legal principles. The contest concerns their application to the evidence relied upon by the Crown.

Legal principles

40. At common law, the doli incapax presumption applies to children from the age of seven until they turn 14. That position has been partially abrogated by statute, where s 5 of the Children (Criminal Proceedings) Act 1987 (NSW) provides that no child under the age of 10 years can be guilty of an offence. As the applicant was at least 11 (and no older than 13) at the time of the alleged offences, this aspect of the law can be passed over.
41. The High Court recently considered the doli incapax presumption in RP v The Queen (2016) 259 CLR 641; [2016] HCA 53. The Court’s judgment was delivered on 21 December 2016, some two weeks after the jury’s verdicts in the present case. (It was not said in this appeal that the High Court’s judgment caused a change in the law such as to render any aspect of the primary judge’s directions erroneous.) The High Court’s decision concerning the nature of the evidence required to rebut the presumption was at the forefront of both parties’ submissions in this Court.
42. The rationale for the presumption was stated by Kiefel, Bell, Keane and Gordon JJ as “the view that a child aged under 14 years is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lacks the capacity for mens rea” (at [8], citations omitted). At [9], their Honours identified the quality of the evidence required to rebut the presumption:

“the presumption may be rebutted by evidence that the child knew that it was morally wrong to engage in the conduct that constitutes the physical element or elements of the offence. Knowledge of the moral wrongness of an act or omission is to be distinguished from the child’s awareness that his or her conduct is merely naughty or mischievous. This distinction may be captured by stating the requirement in terms of proof that the child knew the conduct was ‘seriously wrong’ or ‘gravely wrong’.” (citations omitted)

43. Another fundamental proposition relevant to this appeal is that the presumption cannot be rebutted merely as an inference from the doing of the acts constituting the offence: RP v The Queen at [9], disapproving of R v ALH (2003) 6 VR 276; [2003] VSCA 129.

Evidence relied upon by the Crown

44. In RP v The Queen, the members of the joint judgment said that the need to prove the knowledge of the moral wrongfulness of the conduct “directs attention to the child’s education and the environment in which the child has been raised (citations omitted).” (at [9]) The Crown candidly acknowledged that it had not sought to adduce any such evidence in this case.
45. Rather, the Crown case was put on the basis that it was open for the jury to draw the inference that the applicant had the requisite knowledge of the wrongfulness of his acts “from the circumstances of the acts that constituted the offence”: citing RP v The Queen at [41] (Gageler J). The circumstances relied upon in writing by the Crown were as follows:

“(a) At the time of the alleged offences, the complainant K was only 5 or 6 years old;
(b) When he heard an adult moving around in the house, the applicant said to the complainant K ‘quickly stop, stop’;
(c) The applicant then said ‘I am going to go now but you can’t tell anyone what just happened or else [the complainant K] would get in trouble.’”

46. At the hearing, the first of those three circumstances was elaborated upon by the Crown to encompass the applicant’s age (about 12) relative to K’s. As the evidence required to rebut the presumption must go to the applicant’s state of mind, the applicant submitted that the objective fact of K’s age relative to the applicant’s carried little weight in light of the absence of other evidence going to the applicant’s intelligence and level of maturity at the time of the alleged conduct. The greater part of the Crown’s submissions on appeal were directed to the second and third matters, namely the specific evidence as to the applicant’s behaviour at the time of the alleged incident.
47. The Crown placed greater reliance upon K’s evidence of the words used by the applicant during and immediately after the alleged act. In this regard it is to be recalled that K was giving evidence in 2015 of words said in a conversation that occurred sometime from 1994 to 1996, when K was five or six years old. In oral submissions in this Court, particular weight was given to the evidence that the applicant had told K that K would get into trouble. It was put thus:

“So the Crown’s submission — and I can’t take it any higher than this, your Honour — is that by indicating that it’s the complainant, ‘K’, that’s going to get into trouble, but that is an indication that the jury were entitled to take that as an indication that the applicant had a knowledge that this wasn’t mere naughtiness. It wasn’t simply, ‘don’t tell anybody’, but it went further than that to, ‘don’t tell any of it because you’re going to get in trouble about this’. I don’t think I can take it any higher than that, your Honour.”

48. In addition to the inherent and obvious reliability issues in relying upon the precise words used in such a conversation, the manner in which K’s evidence as to these words was elicited is not without significance. In light of the weight placed upon this evidence by the Crown on appeal, it is as well to set it out in full:

“Q. And then what happened?
A. He said, ‘I’m going to go now but you can’t tell anyone what just happened’.
Q. Was that all he said?
A. Yes.
Q. He didn’t tell you why you couldn’t tell, or anything like that?
A. Yes, he said I’ll get in trouble.
Q. I don’t understand what you said, are they the words he used?
A. To the best of my memory, yes.
Q. Did he say, ‘I will get in trouble’ meaning he would get in trouble?
A. No, sorry. He said to me that I, as in myself–
Q. Well he wouldn’t call you ‘I’–
A. No, he said, ‘[K] you will get in trouble’.”

Consideration

49. For the Crown to have rebutted the doli incapax presumption, it was necessary for it to prove, beyond reasonable doubt, that the applicant understood that his acts were “seriously wrong” or “gravely wrong” and not merely naughty or mischievous: RP v The Queen at [9]. It was this critical distinction to which most of the parties’ submissions on appeal were directed.
50. We have come to the view, contrary to that of the primary judge, that the Crown failed to adduce evidence capable of satisfying the jury to the criminal standard that the doli incapax presumption had been rebutted. We accept the applicant’s submission that, in the absence of any evidence concerning the applicant’s contemporaneous maturity or intelligence, the applicant’s age relative to K’s carries little to no weight in rebutting the presumption. As much was candidly and appropriately acknowledged by the Crown in the following exchange during the hearing:

“LEEMING JA: Sorry, Madam Crown, just go back to the first point, age of the accused. You say that the jury is entitled to find he is 12 rather than 11 to 12, so what, is he a mature 12 year old or an immature 12 year old?
BAKER: Yes, I accept that that only gets one so far and perhaps not very far at all. I make that submission primarily in response to my friend’s submission which was to say that we were dealing with an 11 year old rather than a 12, 13 year old as per the directions to the jury by the judge and so the age of the applicant is a relevant consideration but I acknowledge in the absence of other evidence it doesn’t necessarily get me that far.”

51. In light of the Crown’s decision not to adduce evidence concerning the applicant’s maturity or character, the bare fact of the applicant’s age (which itself remains subject to some uncertainty) carries little weight in assessing his understanding of the degree to which his actions transgressed ordinary standards of morality.
52. Turning to the second matter relied upon by the Crown to establish the applicant’s understanding of the wrongfulness of his conduct — that when he apprehended being discovered by an adult he said, “quickly stop, stop” —, once again this evidence is not relevantly probative. The issue is whether the applicant knew that his conduct was “naughty or mischievous”, as opposed to knowing that his conduct was seriously wrong. This evidence was equally consistent with either state of mind. We respectfully agree with the statement of Hodgson JA in BP v Regina; SW v Regina [2006] NSWCCA 172 at [29]:

“the circumstances of the offence, such as concern to avoid detection, may be some evidence of knowledge; although, if the concern is consistent with the child thinking that the act is merely naughty, this will carry little weight.”

53. That leaves the evidence concerning what the applicant said to K about his getting into trouble. We do not think that this evidence was capable of satisfying the jury beyond reasonable doubt that the applicant knew that his conduct was seriously or gravely wrong. We accept the Crown’s submission (which was not challenged by the respondent) that the doli incapax presumption may be rebutted by “the circumstances of the offending”, without evidence of the accused’s contemporaneous character or maturity. An hypothetical example deployed by the Crown to illustrate this point was that where, on the one hand, a 12 year old child steals an iPhone from a teacher at school, those facts alone may be insufficient to prove that the child knew the moral gravity of his act. On the other hand, where a child of the same age makes plans to break into a shop at night and steal 50 iPhones for profit, a jury may well be able to conclude from those circumstances that he understood that his actions were seriously wrong.
54. However, the circumstances relied upon by the Crown in this case were not capable of satisfying that burden. That the applicant took steps to deter K from revealing what had occurred does not go to the critical point, namely, whether the applicant understood that his conduct was seriously or gravely wrong. The measure taken by the applicant — a warning that K would get into trouble, given in the immediate moments after the alleged wrongful act — was not so elaborate or unusual as to reveal much about the applicant’s state of mind in relation to the act. Like the direction, “Quickly stop, stop”, to avoid detection from an adult, we regard the warning as equivocal in the sense of being equally consistent with an understanding by the applicant that his conduct was merely naughty or mischievous. The equivocal nature of the statement rendered it incapable of satisfying the jury beyond reasonable doubt that it could support the inference that the applicant knew that his behaviour was seriously wrong.
55. Contrary to the Crown’s submission, we do not think that much weight can be placed upon K’s evidence that the warning was that K (as opposed to the applicant) would get into trouble. This is so for at least two reasons.
56. First, it is not particularly surprising for a child under 14 to appreciate that a warning in those terms might carry more weight for its recipient, and thus be more likely to secure his silence. That it was not directed towards the applicant’s own fear of getting in trouble says little, if anything, of his understanding of the degree of moral wrongfulness of the underlying act sought to be concealed.
57. Secondly, we do not consider K’s evidence as to the precise words used by the applicant in this exchange to be a sound basis for a finding that the presumption had been rebutted to the criminal standard. We have set out above the manner in which K’s evidence on this topic was elicited, in response to leading questions following evidence that nothing about getting into trouble had been said. And it is to be recalled that K was giving evidence of events some 20 years before, when he was a very young child. It may be accepted, as the Crown submitted when these obstacles were raised during the hearing, that particularly shocking or unusual events from one’s childhood may leave vivid memories. But considering all those matters together, this evidence is incapable of establishing to the criminal standard that the applicant believed what he was doing was seriously wrong, as opposed to naughty or mischievous.
58. It follows that this ground is made out.

Ground 2 – Tendency evidence

59. In the form it took in the applicant’s draft notice of appeal (reproduced above), this ground of appeal had two parts. Part (a) challenged Judge Syme’s decision to admit the tendency evidence and not order separate trials in the first trial; part (b) challenged the corresponding (uncontested) ruling from the second trial. The principal focus of the parties’ submissions on appeal was upon the second part of ground 2. That approach was adopted by reference to the following statement of the High Court in The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40; 92 ALJR 846 at [61]:

“The question of whether tendency evidence is of significant probative value is one to which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ. Consequently, in an appeal against conviction to an intermediate court of appeal, or on a subsequent appeal to this Court, it is for the court itself to determine whether evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was.” (citations omitted)

60. By reference to this statement, the parties agreed that this it would be necessary for this Court to determine for itself whether the evidence in this case was of significant probative value (see s 97). Though Bauer was not concerned with s 101(2), the parties also agreed that the statement at [61] just quoted also applies to the question of whether the probative value of the evidence was substantially outweighed by any prejudicial effect on the applicant for the purposes of s 101(2). While both sides addressed separate submissions to the alleged errors in Judge Syme’s ex tempore ruling, and in this Court’s majority decision dismissing an appeal from that ruling, the ultimate focus of argument was directed to the correct answers to the questions posed by ss 97 and 101.
61. The Crown served the tendency notice pursuant to s 97 of the Evidence Act for the second trial on 4 November 2016. The notice described the tendency sought to be proved, by reference to the relevant behaviour, in the following terms:

“2. The tendency sought to be proved is [the applicant’s] tendency to act in a particular way and to have a particular state of mind, namely:
(i) To have a sexual interest in children aged between 4 and 14 years.
(ii) To act on that sexual interest, by engaging in sexual acts with children aged between 4 and 14 years for the purpose of his own sexual gratification.
3. The Prosecution seeks to prove the ‘tendency’ outlined above by the following pattern of the accused’s behaviour towards children between the ages of 4 and 14 years:
(i) At the time they were first engaged by the accused each of the children was aged between 4 and 6 years of age.
(ii) Each offence occurred when the accused was present in the child’s home as either a guest or boarder, having had a relationship with the family as either a non-blood relative or close family friend.
(iii) As a result of this relationship with the family, responsible adults trusted the accused and left the complainants with the accused or in the presence of the accused.
(iv) There was no obvious planning involved by the accused but rather a high degree of opportunism demonstrated with the incidents occurring when the accused was left with the child, even for a short period of time, or while adults were nearby.
(v) There was no threat of violence or force used to overbear the will of the child, with the accused engaging each child by seeking ‘consent’ or physical co-operation for the sexual conduct. (In relation to the first complainants, J and K, the accused engaged them by seeking their consent to the conduct complained of by asking them to comply.)
(vi) Following the sexual contact, no threats were made to the child to secure silence.
(vii) In relation to the first 3 complainants (K, J and E) the conduct commenced with fondling.
(viii) Where consent was forthcoming from the first 2 complainants (K and J) the conduct escalated to mutual touching.
(ix) In relation to each of the male complainants (K and JB) the conduct escalated to fellatio.”

62. The tendency identified in paragraph 2 of the notice was entirely consistent with the way in which the tendency was put by the trial judge in her Honour’s directions to the jury. (It may be noted, however, that on one view not all of the Crown’s submissions unfolded in the way contemplated in the notice. The sixth alleged “pattern of the accused’s behaviour” — that he made no “threats” to the children to secure silence — is arguably difficult to reconcile with the threat made to K to secure her silence, addressed above under ground 1, and notwithstanding that K’s evidence had been given in the course of the first trial, some 15 months prior to service of the tendency notice. Perhaps “threat” was understood more narrowly, as confined to threats of violence or force. But no complaint was made about the form of the tendency notice, so this can be put to one side.)

Precedential status of this Court’s earlier decision

63. Prominent in the written submissions filed in advance of the hearing was a dispute as to the precedential status of this Court’s decision dismissing the applicant’s earlier appeal from Judge Syme’s ruling. Differing views have been expressed in this Court as to the appropriate level of deference to be applied to such decisions in light of s 130A of the Criminal Procedure Act, reproduced above. Particular reference was made to statements in DAO v R (2011) 81 NSWLR 558; [2011] NSWCCA 63 at [15], Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [323]- [324] and [471]-[472] and Aubrey v R [2015] NSWCCA 323 at [25].
64. In oral argument, the applicant submitted that considerations of deference to this Court’s 2015 decision carried little weight in light of the development of the law of tendency evidence and severance of counts effected by subsequent decisions of the High Court: see Hughes v The Queen [2017] HCA 20; 92 ALJR 52, The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40; 92 ALJR 846, McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 and Johnson v The Queen  [2018] HCA 48 ; 92 ALJR 1018. The Crown did not resist that submission, and ultimately did not advance any separate oral submissions urging specific deference to this Court’s earlier decision. Accordingly, we put to one side for the purposes of this ground the fact that the applicant’s earlier appeal was dismissed.
65. The Crown also submitted that even if this Court were to conclude that Judge Syme erred in her approach to s 101(2), as alleged by the applicant, such a finding would not, of itself, be sufficient to lead to a retrial. It would, rather, be necessary for the applicant to show that the error gave rise to a miscarriage of justice: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [4] and [13]. In the present case, so the Crown submitted, the applicant would need to show that the tendency evidence should not have been admitted. Once again, and favourably to the applicant, we shall proceed in accordance with the parties’ approach adopted by reference to Bauer at [61] described above (differing views have been expressed on this point, as to which see R v Grech; R v Kadir [2017] NSWCCA 288 at [69]). It follows that the critical question for this ground of appeal is this Court’s conclusion as to the correct answer to the questions posed by ss 97 and 101(2).
66. It follows that this ground of appeal turns on whether the relevant provisions of the Evidence Act, read in light of the relevant authorities, required exclusion of the tendency evidence.

Relevant statutory provisions

67. It was accepted that the evidence was relevant. Section 97(1) of the Evidence Act governed admissibility:

“(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.”

68. Section 101 imposed further restrictions on the use of such evidence:

“101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.
(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.”

69. Sections 97 and 101 require consideration of the probative value of the tendency evidence. That term is defined in Part 1 of the Dictionary to the Act:

“probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”

To satisfy the test in s 97(1)(b), the court must be satisfied that the evidence has “significant probative value”. “Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent”: Hughes v The Queen [2017] HCA 20; 92 ALJR 52 at [16], citing IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [46]. The relevant “fact in issue” to which the tendency evidence was said to relate in this case was whether each complainant was to be believed (the applicant’s case was that the complainants had fabricated their allegations).

70. For the tendency evidence adduced by the Crown in this case, ss 97 and 101 require that two critical questions be answered: (a) whether the evidence had significant probative value, and, should that question be answered in the affirmative, (b) whether that value substantially outweighed any prejudicial effect the evidence may have on the accused: see Hughes v The Queen [2017] HCA 20; 92 ALJR 52 at [18].

Section 97(1) – Assessment of probative value

71. In accordance with Bauer, a distinction is to be drawn between cases involving evidence of single complainants versus those involving evidence of multiple complainants. As the Court stated at [48], tendency evidence by a single complainant concerning acts relating to him or her “may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature”. That being the case, in this Court the applicant accepted that the evidence with respect to the counts involving the same complainant (eg, counts 1-3 and 8-16, which all related to K) was cross-admissible.
72. However, the position is different for the evidence for the counts relating to separate complainants. In Bauer at [58], the High Court set out the considerations which apply to the assessment of the probative value of tendency evidence given by multiple complainants:

“In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.” (citations omitted)

The requirement in multiple complainant cases to identify some feature linking them was reiterated in McPhillamy v The Queen at [31].

73. These considerations were given central importance in support of the applicant’s argument in this Court that the evidence from each of the four complainants was not cross-admissible in respect of the counts involving the other complainants.
74. The applicant submitted that for the tendency evidence from each complainant to be admissible in respect of each count, it was necessary for the Crown to identify some feature linking the counts together. The Crown did not dispute this, but relied upon the following linking features:

“(i) All of the complainants were very young when the offending first occurred (approximately 5 years old). As a matter of common experience, sexual attraction to such young children and a preparedness to act on that interest are very unusual: Hughes v The Queen [2017] HCA 20; 344 ALR 187 at [57];
(ii) There was similarity in the character of the assaults. The applicant first approached each complainant when they were very young, and initially sought the complainant’s consent to sexual touching. There were no threats or violence on the first occasion in which the touching occurred. The conduct was opportunistic, and did not involve any planning;
(iii) There were four separate complainants who made complaints relating to 9 separate incidents of assaults of a sexual nature; and
(iv) The applicant’s conduct was continuous, occurring regularly over the period from 1994 – 2011: BC (No 1) at [82] and [107], per Beech-Jones J, with whom Simpson JA agreed.”

75. Against this, the applicant pointed to various features which he submitted involved significant differences between the alleged offending for various counts. By way of example, he relied upon the differences in the acts relied upon for the counts relating to JB compared to those relating to E. Such individual comparative exercises carry little weight, however, in light of the approach required for assessing probative value under the Evidence Act. That approach requires that when assessing the strength of the probative value of the tendency evidence, the totality of the evidence must be taken into account, in accordance with the words “having regard to other evidence adduced or to be adduced” in s 97(1)(b). The Crown relied upon the following passage in the majority judgment in Hughes (at [62]):

“[It was submitted that] there was a ‘world of difference’ between the evidence concerning EE (count 10), who was 15 years old and whom the appellant encouraged to commit indecent acts in a park and in a driveway, and the evidence concerning SH (counts 3 to 6), which involved intrusive acts ‘in a darkened bedroom, in her bed, when she was only six, seven or eight’. One problem with this comparison is that it ignores the fact that in relation to, for example, count 4, involving SH, the evidence of EE needed to be considered together with the evidence involving (i) counts 1 to 3 and counts 5 to 11, (ii) uncharged acts relating to the complainants SH, JP, AK and SM, and (iii) uncharged acts relating to the tendency witnesses VOD, AA and BB. Indeed, one of the appellant’s concessions on this appeal was that the tendency evidence from counts 1 to 2 (JP) and 3 to 6 (SH) was cross-admissible. This evidence, which was conceded to be admissible, reinforced the other tendency evidence. When considered together, all the tendency evidence provided strong support to show the appellant’s tendency to engage opportunistically in sexual activity with underage girls despite a high risk of detection.”

76. That reasoning identifies the error in this aspect of the applicant’s submissions. Consistently with Hughes, it is not correct to compare in isolation, as the applicant sought to do, counts which have been identified for their apparent disparities. Hence, the exercise of observing the differences between the offending described in counts one to four, involving oral sex against a 5 year old boy when the applicant was 11 to 14, compared with count 18, involving the touching of a 10 year old girl when the applicant was 21 to 22, is apt to lead to error by distracting from the necessary consideration of the tendency evidence as a whole. This aspect of the applicant’s submissions should therefore be rejected.
77. Both in written and oral submissions, the applicant relied upon McPhillamy v The Queen. That was a case, like the present, involving tendency evidence from multiple complainants. McPhillamy pleaded not guilty to sexual offences arising from two incidents relating to “A”, which were alleged to have occurred in the public toilets of a cathedral between 1 November 1995 and 31 March 1996. “A” was an 11-year-old altar boy under the supervision of McPhillamy, an acolyte. The Crown sought to lead tendency evidence from “B” and “C” of incidents dating from 1985 when each had been a boarder aged about 13, and McPhillamy had been an assistant housemaster. “B” and “C” both gave evidence that they had gone to McPhillamy’s bedroom when feeling homesick and upset, and were sexually assaulted by him in the course of those visits. “B” also gave evidence that on a separate occasion McPhillamy approached him while he was standing naked by his locker after showering.
78. Overturning the majority decision of this Court, the High Court held that the evidence of “B” and “C” was not admissible as tendency evidence for the charges relating to “A”. The Court concluded that “B”’s and “C”’s evidence did not possess significant probative value for the purposes of the threshold test for admissibility in s 97(1)(b). The essence of the reasoning in support of that conclusion is recorded in [30]-[32] of the joint judgment:

“In the absence of evidence that the appellant had acted on his sexual interest in young teenage boys under his supervision in the decade following the incidents at the College, the inference that at the dates of the offences he possessed the tendency is weak.
Moreover, where, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together. The suggested link in this case is the appellant’s tendency to act on his sexual interest in young teenage boys who were under his supervision. The supervision exercised by the appellant as assistant housemaster in 1985 over vulnerable, homesick boys in his care has little in common with the supervision exercised in his role as acolyte over ‘A’, an altar boy, when the two were at the Cathedral for services in 19951996. The evidence does not suggest that ‘A’ was vulnerable in the way that ‘B’ and ‘C’ were vulnerable. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with ‘A’’s account that the appellant followed him into a public toilet and molested him.
‘B’’s and ‘C’’s evidence established no more than that a decade before the subject events the appellant had sexually offended against each of them. Proof of that offending was not capable of affecting the assessment of the likelihood that the appellant committed the offences against ‘A’ to a significant extent. It rose no higher in effect than to insinuate that, because the appellant had sexually offended against ‘B’ and ‘C’ ten years before, in different circumstances, and without any evidence other than ‘A’’s allegations that he had offended again, he was the kind of person who was more likely to have committed the offences that ‘A’ alleged. The tendency evidence did not meet the threshold requirement of s 97(1)(b) of the Evidence Act.” (citations omitted)

79. We accept the Crown’s submission that McPhillamy is distinguishable from the present case. The principal basis for this is the significant time difference, of some 10 years, between the alleged incidents in McPhillamy and the materially different circumstances of the charged conduct compared with that which was the subject of the tendency evidence. No such time gap existed in the present case, where the applicant is accused of having committed numerous and regular assaults over the course of some 16 years following substantially the same pattern.
80. As the Crown submitted, each incident shared the common feature of the applicant’s obtaining the consent or physical cooperation of the child prior to engaging in sexual touching. On the other hand, in McPhillamy the evidence of “A”, compared with that of “B” and “C”, was of a quite different character. As the High Court emphasised at [31], the evidence of upset, homesick children seeking out and being taken advantage of by McPhillamy in his bedroom was strikingly different to “A”’s account of being followed into a public toilet and molested by him.
81. We also accept the Crown’s submission that the very young age of the complainants in the present case — they were each only about five years old when the offending commenced — is an additional unusual feature linking the evidence together. (This aspect of the tendency was particularised in paragraph 3(a) of the Crown’s tendency notice.)
82. In our view, the linking features relied upon by the Crown in the present case are sufficient to satisfy the requirement in s 97(1)(b) that the evidence of each of the four complainants was significantly probative of the applicant having assaulted the four complainants. The extreme youth of the victims when the assaults began, the mode in which contact was originally made, the absence of physical threat described a tendency which was sufficiently specific and unusual to be significantly probative of whether each complainant was to be believed.

Section 101(2) – Probative value versus prejudicial effect

83. It is also necessary to be satisfied that the probative value of the tendency evidence substantially outweighs any prejudicial effect it may have on the applicant in order for it to be used against the applicant: s 101(2).
84. Much of the applicant’s submissions in respect of s 101(2) focussed upon what was contended to be Judge Syme’s error in not applying that provision in the first trial. Substantial submissions were also directed to this Court’s earlier judgment in the appeal from Judge Syme’s decision, in which the applicant contended that the majority’s decision to dismiss the appeal on this ground gave an unduly narrow operation to s 101(2). However, as explained above, ultimately we understood both parties to agree that regardless of whether error could be identified in the reasoning supporting the earlier rulings, it would be necessary for this Court to reach its own view on the application of s 101(2), unconstrained by deference to the earlier decisions. Accordingly, the critical question is whether the probative value of the evidence substantially outweighed any prejudicial effect.
85. A prominent strand of the applicant’s argument on appeal was that Beech-Jones J had erred in the first appeal judgment in placing importance on the fact that the applicant had not identified any particular prejudice, nor was any particular prejudice readily apparent: see BC v R at [110]. This was said to represent a reversal of the onus of proof inconsistent with the test prescribed by s 101(2).
86. Consistently with that approach, the applicant did not seek to rely on any particular prejudicial matters unique to the facts of this case in his submissions in this appeal. Rather, he relied upon the statement from Hughes at [17], where the members of the majority set out common features giving rise to prejudice where tendency evidence is relied upon in a criminal trial:

“The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.”

87. The last of those examples, concerning uncharged conduct, can be disregarded in the present case: all of the tendency evidence relied upon by the Crown in the second trial related to charged conduct. Nevertheless, the applicant submitted that the prejudice faced by the applicant in this case “was very much like the sort of prejudice referred to by the High Court in Hughes v The Queen” in [17].
88. The Crown submitted that each of the forms of prejudice listed in Hughes, while present in this case (save for the final example relating to evidence of uncharged conduct), were substantially outweighed by the probative value of the evidence. That was said to be because, first, the prejudice was able to be substantially ameliorated by directions given to the jury. Such an approach is consistent with the statement of Simpson J in DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [172]:

“[I]t is legitimate and appropriate for the judge to take into account the ameliorating effect of any directions that may be available to reduce the prejudicial effect.”

89. That approach has regularly been applied: see for example Regina v PWD [2010] NSWCCA 209; 205 A Crim R 75 at [90], RH v R [2014] NSWCCA 71 at [176] and Armstrong v R [2017] NSWCCA 323 at [24].
90. The applicant made no complaint in respect of the trial judge’s directions. It is as well to set out her Honour’s directions here in some detail:

“Before you can use the evidence in the way the Crown asks you to use it, that is this tendency reasoning, you must make two findings beyond reasonable doubt. The first finding is that you must be satisfied beyond reasonable doubt that one or more of the counts occurred involving one complainant, one particular complainant.
If you cannot find that any of the counts is proved beyond reasonable doubt, then, of course, you would put aside any suggestion that the accused had this sexual interest in children between the ages of four and 14 and was willing to act on that interest and your verdict would be not guilty on all of the counts. You would not be considering this tendency reasoning that I am discussing with you.
But if you are satisfied beyond reasonable doubt that one or more of the counts occurred involving one of the complainants, then you go on to consider the second finding. You ask yourself whether from that count or counts that you have found proved in respect of that particular complainant, you can conclude beyond reasonable doubt that the accused had a sexual interest in children between the ages of four and 14 and was willing to act on that interest by engaging in sexual acts of the sort you have heard about.
If you cannot draw that conclusion beyond reasonable doubt, then again you put aside any suggestion that the accused had such a sexual interest and was willing to act on that interest. In other words, you cannot use that evidence as part of the step in proving the Crown case in respect of each count. You just go back to what the individual complainant told you.”

91. Pausing here, the reasoning process described by her Honour in these directions goes some way to guarding against improper use of the evidence by the jury. The process of addressing each count individually, and then asking whether the evidence enabled the jury to be satisfied to the criminal standard that the applicant had the relevant tendency, ameliorated some of the prejudicial aspects of tendency evidence identified in Hughes. (It is not necessary in this case to consider whether the direction that the existence of the tendency needed to be proved beyond reasonable doubt was unduly favourable to the applicant: see McPhillamy v R [2017] NSWCCA 130 at [14] per Meagher JA, and the authorities cited therein.)
92. Her Honour’s directions continued:

“Of course, if you did find the accused guilty of one count, it would be completely wrong to reason that because the accused has committed one act of a sexual nature or you have found him guilty of one act of sexual misconduct, that he is generally a person of bad character and, for that reason, must have committed all the offences charged. You must not reason in that way. You cannot use this reasoning in any way, that is this tendency reasoning in any way, unless you accept the Crown’s argument that it does show that the accused had a sexual interest in children of this age and was willing to act on that interest and, therefore, makes it more likely that he committed the other offences that the Crown has charged.
Keep firmly in mind that you are concerned with the particular and precise occasion alleged in each count. If you find that the accused had this sexual interest in children of that particular age and was willing to act on it, you may use that finding in respect of the other counts in respect of other complainants, but remember you are still required to find that each specific count is proved beyond reasonable doubt before you could find the accused guilty.”

93. These directions likewise substantially lowered the risk of prejudice which inhered in the tendency evidence. The risk that the evidence could have been given disproportionate weight was partially mitigated by the careful process prescribed by the directions. Little if anything more could properly have been said by her Honour to guard against the risk that the jury’s reasoning could have been clouded by their emotional response to the evidence. The directions were clear and emphatic. Her Honour’s continued emphasis that the starting point of the reasoning must be each particular count, together with the warning that a finding of guilt for one act must not lead to an immediate inference that the applicant is a person of bad character who must have committed each act, is one clear way in which this was achieved.
94. The applicant submitted that the task of applying s 101(2) was not achieved “simply by, in effect a bald statement that any prejudice would be overcome by directions”. So much may be accepted. But in this appeal, the question is whether the actual directions which were given ameliorated such prejudice as the applicant pointed to from the use of the tendency evidence. There is no reason to doubt that the jury properly attended to and applied the simply expressed and easily comprehensible directions given by her Honour. The same observation was made of comparably clear and emphatic directions by R A Hulme J in El-Ali v R [2015] NSWCCA 300 at [156]- [157].
95. The second feature relied upon by the Crown as mitigating the risk of prejudice was that the tendency evidence only involved counts listed on the indictment. As is clear from the above extracts, the jury were directed to give separate consideration to each count. We accept the Crown’s submission that the close, separate consideration to be given to each count, involving hearing each complainant’s evidence and assessing it to the standard of whether each count had been proved beyond reasonable doubt, further mitigated the risk of prejudice to the applicant.
96. We have already set out the reasons for our conclusion that the tendency evidence had high probative value. The question under s 101(2) is whether that probative value substantially outweighs any prejudicial effect. We are of the view that it does. Appropriate steps were taken by the trial judge to guard against disproportionate weight being given to the evidence, and to prevent the jury’s reasoning from being affected by the inevitable emotional response to the evidence given in support of each count. The jury were directed to give close consideration to each count, assessing the evidence against the criminal standard of proof. The prejudicial effect of the evidence was substantially outweighed by its high probative value in the circumstances of this case.
97. It follows that ground 2 is not made out.

Use of evidence for counts 1 to 3 as tendency evidence for remaining counts

98. We return to the point whether success on ground 1 gives rise to a separate problem in the jury’s use of tendency evidence. The point was put thus in oral submissions:

“[I]f your Honours accept, as is asserted on behalf of the applicant, that it was not open to the jury to find that the prosecution had overcome the presumption in favour of doli incapax then it’s submitted that that would have, as it were, infected the rest of the jury’s reasoning in relation to the other counts.
In other words the jury having, it is submitted, erroneously come to the view that the applicant knew that he was doing wrong, was entitled to take that finding into account in assessing whether or not the prosecution had proved its case in relation to the other counts. So it’s submitted because counts 1-3 were admitted as tendency evidence they necessarily would have been taken into account by the jury in relation to the other counts, and it’s submitted that in the exercise of the Court’s discretion the Court would order retrials in relation to the other counts.”

99. The starting point is the statement of Gleeson CJ and Hayne J in The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55 at [50]:

“Finality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence, which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision. There may be cases where, at a later trial of other allegedly similar conduct of an accused, evidence of conduct may be adduced even though the accused had earlier been charged with, tried for, and acquitted of an offence said to be constituted by that conduct. ... In such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial.” (citations omitted)

100. That passage was relied upon by the Crown as authority for the proposition that the fact that evidence relied upon as tendency evidence has been the subject of charges which have resulted in acquittal is not, of itself, a barrier to the admission of the evidence. We did not understand the applicant to take issue with that proposition.
101. In the present case, the jury must have been satisfied beyond reasonable doubt that the assaults constituting counts 1, 2 and 3 occurred. Although we consider that the evidence did not permit the jury to be satisfied beyond reasonable doubt that the applicant knew that what he was doing was seriously wrong, the fact that the applicant has made out a doli incapax defence does not otherwise impact upon the analysis of probative value and prejudicial effect for the purposes of ss 97 and 101. Test the matter this way. If the applicant had happened to have been 14 when the assaults the subject of counts 1, 2 and 3 had occurred, the analysis would be the same. The fact that those counts carried with them an extra legal element, which the Crown has failed to demonstrate, in no way impacts the applicability of the reasoning earlier given in response to ground 2.
102. It may be accepted that the probative value of the evidence of the applicant assaulting K aged 5 to 7 when the applicant himself was only a child was less than the probative value of the evidence of the applicant assaulting J (when the applicant was 15 or 16) and of the evidence of the applicant assaulting E and JB when the applicant was an adult. However, the probative value of the former is not materially diminished by the fact that the Crown has failed to demonstrate beyond reasonable doubt that the applicant knew that his assault of K was seriously wrong.
103. The Crown advanced a more elaborate submission in response to this submission, dealing with the different approaches adopted in DS v R [2018] NSWCCA 195. What we have said above is supported by what was said in DS by Wilson J at [87]. On one view it sits uneasily with what Basten JA said at [10]-[11], and in oral submissions in reply, counsel for the applicant prayed in aid that passage of Basten JA’s reasons. But all judgments must be read in light of the facts of the case. In DS there was a substantial time difference, of some seven or eight years, between the two incidents. As explained above in distinguishing the present case from McPhillamy, this time differential did not exist in the present case. To the contrary, the evidence of the applicant’s offending depicted a continuum of conduct consistent with the alleged tendency lasting throughout his teenage years and into his 20s. The 20 counts which were the subject of the tendency evidence concerned nine separate incidents relatively evenly distributed over the course of (at most, accounting for the imprecision of the dates of the alleged incidents) some 16 years. We do not consider that the fact that the Crown failed to prove that the applicant understood the moral gravity of his actions for counts 1 to 3 substantially lowers the probative value of the evidence of those counts when considered by reference to the continuum of behaviour of which they form a part, considered in the light of all of the evidence as they must be in accordance with Hughes at [62].
104. The implications of ground 1 of the appeal being upheld are, in reality, quite limited. The jury were evidently satisfied beyond reasonable doubt that the counts occurred as alleged by K and that the ordinary constituent elements of the offences were satisfied; the only implication of the applicant’s success on appeal is that the jury could not have been satisfied to the criminal standard of the additional matter that the applicant understood that his conduct was seriously wrong as opposed to merely naughty.
105. We similarly do not think that the acquittal on counts 1 to 3 materially raises the risk of prejudicial use of this evidence for the purposes of the balancing exercise required by s 101(2). One reason for that is that in this case, unlike in DS v R and unlike in the scenarios contemplated in The Queen v Carroll at [50], these counts formed part of the indictment before the jury. As explained in the earlier section addressing s 101(2), this is a feature lowering the risk of prejudicial use in that the jury received careful directions as to the need to be satisfied of the elements of counts 1 to 3 beyond reasonable doubt, and the evidence was considered against the backdrop of a finding of criminal guilt depending upon its acceptance.

Ground 3 – Appeal against sentence

106. As explained above, ground 3 is a contingent appeal against sentence. The relevant contingency — the applicant’s succeeding on ground 1 and failing on ground 2 — has eventuated. The applicant must be resentenced in light of the fact that he should not have been convicted of counts 1 to 3 of the 20 counts for which he was originally sentenced.
107. The applicant’s written submissions on resentencing were undeveloped. It was contended that “if the Court upholds ground one, there should be a significant reduction in the aggregate sentence.” For its part, the Crown, while accepting that it would be necessary to resentence the applicant, submitted that “any reduction in the aggregate sentence should be modest.” There was no oral elaboration by either side. No criticism should be implied from that observation. It was not contended that there was any error in any aspect of her Honour’s exercise of the sentencing discretion, and it is to be recalled that the applicant’s primary objective was for all convictions to be set aside, while the Crown’s primary objective was for both grounds all aspects of the appeal against conviction to be dismissed, with the result that ground 3 would fall away. No evidence was adduced with a view to the resentencing being carried out on a different basis from that performed by the sentencing judge.
108. A case such as this has some unusual features. It is not suggested that there was any error at all on the part of the sentencing judge, save for the fact that the sentence was imposed on the legally incorrect basis that three of the 20 counts should have resulted in a verdict of acquittal. Although this is not a question of a mere factual or arithmetical error, such as noted in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [72], we incline to the view that the re-exercise of discretion required by Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] does not involve a separate reconsideration of the 17 individual convictions, or the degree of accumulation implicit in an aggregate sentence. The principal reason for that is that it is not suggested that any aspect of the task undertaken by her Honour was in error, save in relation to the first three counts, which on any view made only a small contribution to the applicant’s criminality and sentence.
109. The indicative sentences for counts 1 to 3 totalled 3 years and 6 months – approximately 8% of the combined total of the indicative sentences (43 years and seven months) for all counts. There should be a broadly proportionate reduction in the aggregate sentence: Turner v R [2017] NSWCCA 304 at [70] and [98]. That approach leads us to propose an aggregate sentence of 13 years (1 year less than the 14 years imposed by the District Court). The sentencing judge made no finding of special circumstances, and none was contended for in this Court. The result is that the non-parole period will be 9 years and 9 months.
110. In compliance with the requirement in s 53A(2)(b) of the Crimes (Sentencing Procedure) Act, we would indicate that the sentences which would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence are those recorded for counts 4 to 20 by the sentencing judge, reproduced at [34] above.
111. However, as noted above, the Court has had the benefit of no submissions at all from either party about the course to be taken in the event that ground 1 is made out but ground 2 fails. In those circumstances, the orders will defer resentencing until after the parties have been given a further opportunity to be heard.

Conclusion and orders

112. Ground 1, the conviction appeal for counts 1 to 3, is made out, but ground 2, alleging error in admitting the tendency evidence for each count, is not. In the result it is necessary to quash the applicant’s convictions only in respect of counts 1 to 3, and to resentence him to a new aggregate sentence in light of the absence of those convictions. The quashing of the existing aggregate sentence and the imposition of a new sentence should be deferred until there has been a further opportunity to be heard.
113. We make the following orders:
     • (1) Grant leave to appeal and extend the time to appeal to 11 May 2018.
     • (2) Quash the applicant’s convictions for counts 1 to 3 and enter verdicts of acquittal for those counts.
     • (3) Dismiss the appeal against conviction in respect of counts 4 to 20.
     • (4) Direct that the applicant file and serve any further submissions as to sentence within 21 days of today, and direct the respondent to file and serve any submissions in response within 14 days thereafter, those submissions to include whether any application is made for a further oral hearing, in default of which the remaining issues will be determined on the papers.

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