Hughes v The Queen

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

ROBERT LINDSAY HUGHES  APPELLANT

AND

THE QUEEN  RESPONDENT

Hughes v The Queen

[2017] HCA 20

14 June 2017

S226/2016

ORDER

Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation

P R Boulten SC with K J Edwards for the appellant (instructed by Greg Walsh & Co)

L A Babb SC with K N Shead SC and B K Baker for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

G J C Silbert QC and N Rogers SC with B L Sonnet for the Director of Public Prosecutions (Vic), intervening (instructed by Solicitor for Public Prosecutions (Vic))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Hughes v The Queen

Evidence – Admissibility – Tendency evidence – Evidence Act 1995 (NSW), s 97(1)(b) – Where appellant charged with 11 sexual offences against five female children aged under 16 years – Where prosecution permitted to adduce evidence of each complainant and other witnesses as tendency evidence – Where alleged tendencies identified as having sexual interest in underage girls and as using relationships to gain access to underage girls in order to engage in sexual activities with them – Whether tendency evidence required to display features of similarity with facts in issue in order to have "significant probative value" – Whether tendency evidence had "significant probative value".

Words and phrases – "modus operandi", "pattern of conduct", "probative value", "significant probative value", "tendency evidence", "underlying unity".

Evidence Act 1995 (NSW), s 97(1)(b).

1. KIEFEL CJ, BELL, KEANE AND EDELMAN JJ. Section 97(1)(b) of the Evidence Act 1995 (NSW) excludes evidence of the character, reputation or conduct of a person to prove that the person has or had a tendency to act in a particular way or to have a particular state of mind ("tendency evidence") unless the court thinks that the tendency evidence will have "significant probative value". The provision is enacted in the same terms in the uniform evidence legislation of the Commonwealth, Tasmania, Victoria, the Australian Capital Territory and the Northern Territory ("the Evidence Act")[1].  The issue in the appeal is the extent to which, if at all, evidence of conduct adduced to prove a tendency is required to display features of similarity with the facts in issue before it can be assessed as having "significant probative value". 

   [1]Evidence Act 1995 (Cth); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic); Evidence Act 2011 (ACT); Evidence (National Uniform Legislation) Act (NT).

2. The issue arises in the familiar context of the trial of counts charging an accused with sexual offences against several children at which the prosecution seeks to adduce the evidence of each complainant in support of its case on each count.  The issue reduces in this case to the question of whether proof that a man of mature years has a sexual interest in female children aged under 16 years ("underage girls") and a tendency to act on that interest by engaging in sexual activity with underage girls opportunistically, notwithstanding the risk of detection, is capable of having significant probative value on his trial for a sexual offence involving an underage girl.  The answer is that, in a case in which the complainant's evidence of the conduct the subject of the charge is in issue, proof of that tendency may have that capacity. 

   Procedural history

3. On 10 February 2014 the appellant was arraigned in the District Court of New South Wales (Zahra DCJ) on an indictment that charged him in 11 counts with sexual offences committed against five underage girls.  Prior to the trial, the prosecution served the appellant with notice of its intention to adduce tendency evidence at the trial[2].  The evidence of each complainant and a number of other witnesses was to be adduced in the trial of each count to prove tendencies identified as "having a sexual interest in female children under 16 years of age" and using "his social and familial relationships … to obtain access to female children under 16 years of age so that he could engage in sexual activities with them".  The notice particularised differing forms of sexual conduct with underage girls.  One particular of that conduct was its occurrence within the vicinity of another adult.

   [2]Evidence Act, s 97(1)(a).

4. The complainants were aged between six and 15 years at the date of the offending.  The acts charged in each count and the circumstances of their commission varied.  They included digital penetration of the vagina of a girl aged 14 or 15 years; procuring a girl aged between six and eight years to masturbate him; indecently rubbing his erect penis against a nine year old girl; encouraging a 15 year old girl to touch his penis; and indecently exposing himself to girls aged nine and 12 or 13 years. 

5. The prosecution also sought to adduce tendency evidence from additional witnesses.  Three were women who described occasions when they had been at the appellant's home as young girls on which he had either touched them in a sexual way or exposed his penis in their presence.  Another three were women who had worked with the appellant ("the workplace tendency witnesses").  They described occasions, when they were aged in their late teens or early twenties, when the appellant had inappropriately sexually touched them or exposed himself to them. 

6. The appellant applied for severance of the counts relating to each complainant and an order for separate trials.  The success of the application turned on the admissibility of the tendency evidence.

7. The admissibility of the tendency evidence was determined before the jury was empanelled by reference to the statements of the complainants and the tendency witnesses.  A summary of the evidence given at the trial, which did not materially depart from the accounts contained in the statements, is set out later in these reasons.  The trial judge rejected the appellant's challenge that the evidence lacked sufficient similarity to the charged conduct to have significant probative value.  His Honour said that contention focused too narrowly on the need to prove a tendency to engage in sexual activity in a particular fashion.  His Honour assessed the probative value of proof of the tendencies as particularised above to be significant in circumstances in which the fact in issue in each count was the occurrence of the sexual conduct charged. 

8. His Honour held that the evidence of the workplace tendency witnesses was not admissible in support of counts one to 10.  The evidence of these witnesses was found to have significant probative value with respect to proof of the offence charged in count 11.  This offence occurred at the appellant's workplace and involved him exposing his penis to the complainant, who was aged 12 or 13 years.  The jury was directed that the evidence of the workplace tendency witnesses was relevant to the determination of count 11.  The Court of Criminal Appeal held that the written and oral directions made clear that the evidence could not be used in consideration of counts 1 to 10[3].  The correctness of that conclusion is not an issue in the appeal. 

   [3]Hughes v The Queen [2015] NSWCCA 330 at [233].

9. On 7 April 2014, the jury returned verdicts of guilty on the first nine counts in the indictment.  On 8 April 2014, the jury returned a verdict of guilty on the eleventh count.  The jury was unable to agree on count 10 and was discharged without verdict.  The appellant was sentenced to an aggregate sentence of 10 years and nine months' imprisonment, with a non-parole period of six years, to date from 7 April 2014. 

   The Court of Criminal Appeal

10. The appellant appealed against his convictions to the New South Wales Court of Criminal Appeal (Beazley P, Schmidt and Button JJ), contending that, having regard to the breadth of the tendency that it was adduced to prove, the tendency evidence did not possess significant probative value[4].  The appellant's argument drew support from the statement of the Court of Appeal of the Supreme Court of Victoria in Velkoski v The Queen that tendency evidence must possess "sufficient common or similar features with the conduct in the charge in issue so as to demonstrate a pattern that cogently increases the likelihood of the occurrence of that conduct"[5].  The Court of Criminal Appeal declined to follow Velkoski and held, consistently with a line of New South Wales authority[6], that there is no requirement that the conduct evidencing the tendency display features of similarity with the charged conduct.  The evidence disclosed the appellant's sexual interest in underage girls and tendency to engage in sexual activity with them opportunistically as the occasion presented in social and familial settings and the work environment.  The Court of Criminal Appeal concluded that the evidence had been rightly admitted because proof of the tendency made proof of the fact of the commission of the offence charged more likely to a significant extent[7]. 

    [4]Hughes v The Queen [2015] NSWCCA 330 at [149].

    [5]Velkoski v The Queen (2014) 45 VR 680 at 682 [3].

    [6]R v Ford (2009) 201 A Crim R 451; R v PWD (2010) 205 A Crim R 75; Saoud v The Queen (2014) 87 NSWLR 481.

    [7]Hughes v The Queen [2015] NSWCCA 330 at [188], [200].

11. On 2 September 2016, Gageler and Gordon JJ granted the appellant special leave to appeal on two grounds.  The first ground contends error in the conclusion that the tendency evidence possessed "significant probative value".  The second ground contends error in the rejection of the approach adopted in Velkoski to the assessment of that question.  It raises consideration of the divergence between the Court of Appeal of the Supreme Court of Victoria and the Court of Criminal Appeal of New South Wales and the courts of Tasmania and the Australian Capital Territory with respect to the admission of tendency evidence under the Evidence Act[8].  The Director of Public Prosecutions for Victoria ("the Victorian Director") was given leave to intervene in support of the respondent with respect to the second ground of appeal. 

    [8]Tasmania v Martin (No 2) (2011) 20 Tas R 445; Tasmania v W (No 2) (2012) 227 A Crim R 155; Tasmania v H [2015] TASSC 36; R v Lam [2014] ACTSC 49.

12. For the reasons to be given, the Victorian Director's submission, that Velkoski evinces an unduly restrictive approach to the admission of tendency evidence, is accepted.  The Court of Criminal Appeal's conclusion that the tendency evidence adduced at the appellant's trial had significant probative value in relation to proof of each count in the indictment was not attended by error and it follows that the appeal must be dismissed. 

    The scheme of the Evidence Act governing tendency evidence

13. Subject to the exclusionary rules in Pts 3.2 to 3.11 of the Evidence Act, evidence that is relevant in a proceeding is admissible in the proceeding[9].  Evidence is relevant if it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue[10]. Part 3.6 governs the admission of evidence of tendency and coincidence. At common law, this evidence is governed by rules concerning propensity and similar fact evidence. The intention of the Evidence Act to make substantial changes to the common law rules[11] is evident in the provision for the admission of tendency and coincidence evidence.

    [9]Evidence Act, s 56(1). 

    [10]Evidence Act, s 55(1).

    [11]Papakosmas v The Queen (1999) 196 CLR 297 at 302 [10]; [1999] HCA 37; IMM v The Queen (2016) 257 CLR 300 at 311 [35] per French CJ, Kiefel, Bell and Keane J; [2016] HCA 14; R v Ellis (2003) 58 NSWLR 700 at 716-717 [78].

14. That provision in respect of tendency evidence is in s 97(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."

15. That provision in respect of coincidence evidence is in s 98(1):

    "Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally 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."

16. The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue[12].  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[13].  The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue.  The capacity of tendency evidence to be influential to proof of an issue on the balance of probability in civil proceedings may differ from the capacity of the same evidence to prove an issue beyond reasonable doubt in criminal proceedings.  The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove.  The facts in issue in a criminal proceeding are those which establish the elements of the offence. 

    [12]Evidence Act, Dictionary. The definition appears in s 3(1) of the Tasmanian Act.

    [13]See IMM v The Queen (2016) 257 CLR 300 at 314 [46] per French CJ, Kiefel, Bell and Keane JJ.

17. In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. 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.

18. In a criminal proceeding, before tendency evidence may be adduced by the prosecution about the accused, the court must first ask whether the evidence has significant probative value and, if it does, the court must next ask whether that value substantially outweighs any prejudicial effect the evidence may have on the accused.  The appeal is concerned with the answer to the first question.

    Ground two – a requirement of similarity

19. It is convenient to address the second ground first.  This ground contends that the Court of Criminal Appeal erred by holding that an "underlying unity" or "pattern of conduct" need not be established before tendency evidence is held to have significant probative value and by declining to follow Velkoski.

20. The appellant's argument acknowledges that s 97(1) does not refer to similarity, unlike s 98(1). Nonetheless, he submits that the inferential process of reasoning from proof of tendency inherently invokes consideration of the similarity between the tendency and the fact or facts in issue: tendency evidence depends for its probative value on how persuasively it can be reasoned that the person will behave in a way that is consistent with the tendency. The legislative choice to condition the admission of tendency evidence on the evidence having significant probative value, and to preclude tendency reasoning if the evidence is not admissible under Pt 3.6 even if it is relevant for another purpose[14], is said to reflect long-standing scepticism of tendency reasoning and appreciation of the dangers of the unfair prejudice to which it may give rise[15].  The appellant refers to the interim report of the Australian Law Reform Commission ("the ALRC")[16] for the proposition that the dangers of tendency reasoning are greater in cases in which the tendency does not share features of similarity with the conduct in issue. 

    [14]Evidence Act, s 95.

    [15]That scepticism, as Professor Tapper observes, appears to have been in decline in England and Wales before the enactment of s 101(1) of the Criminal Justice Act 2003 (UK), which allows the admission of evidence of the defendant's bad character where the evidence is relevant to an important matter in issue between the defendant and the prosecution:  Tapper, Cross and Tapper on Evidence, 11th ed (2007) at 403-416; Director of Public Prosecutions v P [1991] 2 AC 447; R v H [1995] 2 AC 596; R v Z [2000] 2 AC 483; and see The Law Commission, Evidence of Bad Character in Criminal Proceedings, Law Com No 273, (2001); New Zealand Law Commission, Disclosure to Court of Defendants' Previous Convictions, Similar Offending and Bad Character, Report 103, (2008).

    [16]Australian Law Reform Commission, Evidence, Report No 26 (Interim), (1985).

21. At the time the ALRC published its reports in its landmark reference on the law of evidence, the preponderance of English and Australian authority was against the admission of evidence of propensity altogether[17].  The ALRC considered that the rules precluding the prosecution from adducing evidence of the bad character of the accused were supported by the results of psychological research[18].  The research was concerned with the value of evidence of general behavioural traits such as honesty.  A person's general disposition was found to be of little value as a predictive tool, whereas a person's behaviour in similar situations might justify prediction[19].  

    [17]Australian Law Reform Commission, Evidence, Report No 26 (Interim), (1985), vol 1 at 219 [400].

    [18]Australian Law Reform Commission, Evidence, Report No 26 (Interim), (1985), vol 1 at 460 [810].

    [19]Australian Law Reform Commission, Evidence, Report No 26 (Interim), (1985), vol 1 at 452 [797].

22. The ALRC questioned the inflexible rejection of reasoning from propensity[20].  In cases in which it is established that the accused was responsible for other unusual acts, the ALRC pointed out, it is possible to reason to guilt via either propensity or the improbability of coincidence[21].  The analysis anticipated Pfennig v The Queen[22].  The focus of the analysis remained on the singularity of the propensity.  Reflecting this thinking, in the draft Evidence Bill appended to its final report the ALRC conditioned the admission of tendency evidence on proof of substantial and relevant similarity[23]. 

    [20]Australian Law Reform Commission, Evidence, Report No 26 (Interim), (1985), vol 1 at 220 [400].

    [21]Australian Law Reform Commission, Evidence, Report No 26 (Interim), (1985), vol 1 at 220 [401].

    [22](1995) 182 CLR 461; [1995] HCA 7.

    [23]Australian Law Reform Commission, Evidence, Report No 38, (1987), Draft Evidence Bill, cl 87(b).

23. The legislative history of Pt 3.6 of the Evidence Act as enacted is traced in Spigelman CJ's judgment in R v Ellis[24]. It suffices to observe that among the differences between the ALRC's draft and s 97, as enacted, is the omission of any requirement of similarity. The legislature's choice to reject the ALRC's recommendation in this respect is unexplained, but, as Spigelman CJ observed, it is a choice which makes the ALRC's reports less useful on this subject than on other subjects[25]. 

    [24](2003) 58 NSWLR 700 at 714-715 [65]-[68].

    [25](2003) 58 NSWLR 700 at 714-715 [65]; and see Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51 at 64 [51].

24. The Court of Appeal in Velkoski undertook a comprehensive review of the authorities touching on the admission of tendency evidence.  Their Honours identified an approach in New South Wales in recent years that is less restrictive than the approach taken in Victoria, or by the Court of Criminal Appeal in earlier years[26].  The Court of Appeal concluded that the more recent New South Wales approach sets the threshold for the admission of tendency evidence too low[27].  The recent New South Wales approach was said to be exemplified by the decisions in R vFord[28] and R v PWD[29].  Ford and PWD were each successful prosecution appeals against a ruling excluding tendency evidence on the trial of sexual offences. 

    [26]Velkoski v The Queen (2014) 45 VR 680 at 713 [142].

    [27]Velkoski v The Queen (2014) 45 VR 680 at 717 [164].

    [28]Velkoski v The Queen (2014) 45 VR 680 at 716 [155], citing R v Ford (2009) 201 A Crim R 451.

    [29]Velkoski v The Queen (2014) 45 VR 680 at 713 [142], citing R v PWD (2010) 205 A Crim R 75.

    R v Ford

25. In Ford, on an indictment charging the accused with sexual intercourse without consent, the prosecution sought to lead evidence of indecent assaults, committed by the accused against two other complainants, as evidence of the accused's tendency to sexually and indecently assault women who had fallen asleep at his home after drinking alcohol.  The trial judge rejected the tender, holding that the differences in the nature of the sexual conduct on each occasion deprived the evidence of significant probative value[30]. 

    [30]R v Ford (2009) 201 A Crim R 451 at 456-458 [6]-[16], 461-465 [28]-[31].

26. Campbell JA, giving the leading judgment in the Court of Criminal Appeal, rejected the need for tendency evidence to prove a tendency to commit acts closely similar to the acts constituting the charged offence. His Honour observed that all "that a tendency need be, to fall within the chapeau to s 97(1), is 'a tendency to act in a particular way'"[31].  His Honour concluded:  "[a]ll that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged"[32].  Evidence that on three occasions the accused had sexually assaulted an intoxicated woman who had fallen asleep at his home demonstrated a tendency to act in a particular way.  Proof of that tendency was found to have significant probative value in the context of the issues in the trial[33].

    [31]R v Ford (2009) 201 A Crim R 451 at 466 [38].

    [32]R v Ford (2009) 201 A Crim R 451 at 485 [125].

    [33]R v Ford (2009) 201 A Crim R 451 at 485 [126]-[127].

    R v PWD

27. In PWD, 10 counts charging the accused with sexual offences against four boys were joined in the same indictment.  The complainants were boarders at a school of which the accused was the principal.  The prosecution sought to adduce the evidence of each complainant and of two further witnesses on the trial of each count to prove the accused's tendency to be sexually interested in young male students and to use his position of authority to engage in sexual activity with them.  The sexual conduct and the circumstances in which the conduct occurred varied.  The trial judge considered these differences deprived the tendency evidence of significant probative value and ordered separate trials[34]. 

    [34]R v PWD (2010) 205 A Crim R 75 at 77-78 [2]-[6].

28. Allowing the appeal, the Court of Criminal Appeal followed Ford and held that the admissibility of tendency evidence does not depend upon the evidence exhibiting "striking similarities, or even closely similar behaviour"[35].  The tendency which the Court of Criminal Appeal identified the evidence to be capable of proving was the accused's sexual attraction to young male students and tendency to act on that attraction by engaging in various sexual acts with boarders who were vulnerable because they were homesick or otherwise unable to adjust to the normal pattern of school life[36].  Given that the occurrence of the offences was in issue, proof of the tendency had significant probative value, including by excluding that the accused's relationship with each student was an innocent one[37].  

    [35]R v PWD (2010) 205 A Crim R 75 at 91 [79].

    [36]R v PWD (2010) 205 A Crim R 75 at 92 [87].

    [37]R v PWD (2010) 205 A Crim R 75 at 92 [88].

    Velkoski v The Queen

29. The indictment in Velkoski charged the accused with 15 counts of committing an indecent act with a child under the age of 16 years and one count of attempting to commit that offence.  The offences were alleged to have been committed against three complainants while each was attending the day-care centre run by the accused's wife.  The indecent acts with which the accused was charged included:  touching a child's penis; encouraging a child to take hold of the accused's penis; touching a child on the vagina; and touching a child on the bottom[38].  The tendency notice served by the prosecution identified the tendencies that it was sought to prove as "the accused had a sexual interest in young children attending the day-care centre run by his wife" and "the accused was willing to act on that sexual interest by engaging in sexual acts with the complainants"[39].  The defence did not object to the reception of the tendency evidence at the trial.  On appeal against conviction, the defence resiled from that concession[40]. 

    [38]Velkoski v The Queen (2014) 45 VR 680 at 682 [1], 683-685 [8]-[18].

    [39]Velkoski v The Queen (2014) 45 VR 680 at 685 [22].

    [40]Velkoski v The Queen (2014) 45 VR 680 at 686 [23]-[24].

30. The Court of Appeal commenced its analysis in Velkoski by commenting on the stringency of the common law similar fact rule in its application to the prosecution of sexual offences[41]:

    "This high threshold meant that, in many cases, juries were left to consider the evidence concerning each alleged victim in isolation, without ever being made aware of the fact that allegations of a similar kind had been made by other complainants.  Such cases often involved allegations that went back many years, and sometimes came down to a consideration of oath against oath.  The result, in a great many cases, was a series of acquittals, whereas, had the evidence been made available, the outcome would almost certainly have been different."

    [41]Velkoski v The Queen (2014) 45 VR 680 at 687 [31].

31. The Court of Appeal correctly observed that the common law principles governing the admission of similar fact evidence have been abrogated and entirely replaced by Pt 3.6 of the Evidence Act[42].  Nonetheless, their Honours went on to hold that the common law concepts of "underlying unity", "pattern of conduct" and "modus operandi" continue to inform the assessment of whether evidence is capable of supporting tendency reasoning[43]. The conclusion was linked to the view that the object of s 97(1)(b) is to protect against the risk of an unfair trial. Requiring significant probative value to be assessed by the criterion of similarity of operative features was said to protect against this risk[44].  Their Honours were critical of cases in which the prosecution adduces tendency evidence to establish "the offender's interest in particular victims and his willingness to act upon that interest" because such evidence discloses only "rank propensity".  Their Honours said that once the jury is satisfied that the acts relied upon as tendency have been committed, any resort to proof of the offender's state of mind to support tendency reasoning is impermissible and highly prejudicial[45]. 

    [42]Velkoski v The Queen (2014) 45 VR 680 at 692 [66], 717 [162]; see also R v Ellis (2003) 58 NSWLR 700 at 717 [83].

    [43]Velkoski v The Queen (2014) 45 VR 680 at 692-693 [67], 698 [82].

    [44]Velkoskiv The Queen (2014) 45 VR 680 at 717 [164].

    [45]Velkoskiv The Queen (2014) 45 VR 680 at 720 [173(f)].

32. These statements, couched in the language of the common law, do not stand with the scheme of Pt 3.6. They are apt to overlook that s 97 applies to civil and criminal proceedings. In criminal proceedings, the risk that the admission of tendency evidence may work unfairness to the accused is addressed by s 101(2). Moreover, s 97(1) in terms provides for the admission of evidence of a person's tendency to have a particular state of mind. An adult's sexual interest in young children is a particular state of mind. On the trial of a sexual offence against a young child, proof of that particular state of mind may have the capacity to have significant probative value.

33. The Court of Appeal went on to state that[46]:

    "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.'  If the evidence does no more than prove a disposition to commit crimes of the kind in question, it will not have sufficient probative force to make it admissible."

    [46]Velkoski v The Queen (2014) 45 VR 680 at 717-718 [164].

34. This reasoning glosses the language of s 97(1)(b) of the Evidence Act; it does not explain its "inherent" meaning. The circumstance that the text of s 97(1)(b) does not include reference to similarity or to the concepts of "underlying unity", "pattern of conduct" or "modus operandi" is a clear indication that s 97(1)(b) is not to be applied as if it had been expressed in those terms. The omission of these familiar common law concepts is eloquent of the intention that evidence which may be significantly probative for the purposes of s 97(1)(b) should not be limited to evidence exhibiting the features so described.

35. The Court of Appeal identified the following principle[47]:

    "[W]e have examined the principle which is applied in determining whether tendency evidence is admissible.  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 so as to demonstrate a pattern that cogently increases the likelihood of the occurrence of that conduct."

    [47]Velkoskiv The Queen (2014) 45 VR 680 at 682 [3].

36. Applying this principle, the Court of Appeal held that it had been open to the prosecution to adduce tendency evidence in respect of the counts which had the common feature of the accused encouraging the complainant to touch his, the accused's, penis, or exposing his penis to the complainant[48].  The remaining counts, however, were held to have lacked any sufficiently similar feature to permit tendency reasoning[49].  The convictions were set aside and a new trial was ordered[50].

    [48]Velkoskiv The Queen (2014) 45 VR 680 at 721-722 [181].

    [49]Velkoskiv The Queen (2014) 45 VR 680 at 722 [184].

    [50]Verdicts of acquittal were entered on two counts, which the Court of Appeal found were not supported by the evidence.

37. The Velkoski analysis proceeds upon the assumption that, regardless of the fact in issue, the probative value of tendency evidence lies in the degree of similarity of "operative features" of the acts that prove the tendency[51].  It is an analysis that treats tendency evidence as if it were confined to a tendency to perform a particular act.  Depending upon the issues in the trial, however, a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it.  Velkoski is illustrative. 

    [51]Velkoski v The Queen (2014) 45 VR 680 at 719 [171].

38. The expression of the accused's sexual interest in young children was not confined to soliciting them to touch his penis:  he repeatedly touched one complainant's penis and he touched other complainants on their vaginas and bottoms.  Confining the tendency evidence to counts charging an occasion on which he solicited one of the complainants to touch his penis did not give the tendency evidence its relative strength[52].  There was no reason to find that the accused was more likely to act on his sexual interest in young children by soliciting one of the complainants to touch his penis than he was to sexually molest the complainant at the day-care centre in another way.  Given that the issue in each case was the occurrence of the offence, proof of the tendencies which the prosecution identified had significant probative value.

    [52]cf Velkoski v The Queen (2014) 45 VR 680 at 719 [171].

39. Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.

40. In the trial of child sexual offences, it is common for the complainant's account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford[53]:  "the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged".  The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself.  It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged.  Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible. 

    [53](2009) 201 A Crim R 451 at 485 [125].

41. The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters.  The first matter is the extent to which the evidence supports the tendency.  The second matter is the extent to which the tendency makes more likely the facts making up the charged offence.  Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters.  By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi".  In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.    

42. Unlike the common law which preceded s 97(1)(b), the statutory words do not permit a restrictive approach to whether probative value is significant. However, the open-textured nature of an enquiry into whether "the court thinks" that the probative value of the evidence is "significant" means that it is inevitable that reasonable minds might reach different conclusions. This means that in marginal cases it might be difficult to know whether an appellate court might take a different view of the significance of the tendency evidence from a trial judge. This might result in the setting aside of any conviction and an order for a retrial. There may also be other risks for the prosecution. The admissibility of the tendency evidence is assessed based upon the evidence that witnesses are expected to give. In this case, the evidence given by the witnesses did not differ materially from their anticipated evidence. But in cases where the admissibility of tendency evidence is borderline, there may be risks if the actual evidence does not accord with the evidence as anticipated. Again, this could have consequences for any conviction. One intermediate appellate court has recently observed that the potential consequence of a new trial in cases where a conviction is overturned due to the wrongful admission of tendency evidence which was borderline should be a matter taken into account by the prosecution in assessing, perhaps conservatively, what tendency evidence it will rely upon[54].  In any event, the open-textured, evaluative task remains one for the court to undertake by application of the same well-known principles of logic and human experience as are used in an assessment of whether evidence is relevant[55]. 

    [54]DKA v The State of Western Australia [2017] WASCA 44 at [69].

    [55]Evidence Act, s 55.

    Ground one

43. This ground challenges the conclusion that the tendency evidence adduced at the appellant's trial possessed significant probative value.  At the outset it is to be noted that the prosecution did not seek to rely on the improbability of the complainants falsely making allegations of sexual impropriety against the appellant, so the appeal does not invite consideration of any overlap between tendency and coincidence reasoning[56].  

    [56]Saoud v The Queen (2014) 87 NSWLR 481 at 490-491 [38]-[44] per Basten JA.

    The evidence

44. Counts one and two charged offences against JP of sexual intercourse without consent, knowing that JP was not consenting[57].  The offences were alleged to have occurred when JP was aged 14 or 15 years on occasions when the appellant and his wife were dinner guests at JP's home.  The first count charged an occasion when the appellant entered JP's bedroom while she was asleep.  JP was sharing a bed with the appellant's daughter.  JP woke to find the appellant's hand inside her pyjama pants.  He digitally penetrated her vagina.  She pushed his hand away and he licked her cheek and left the room.  The second count occurred a month or so later when the appellant again entered JP's bedroom.  On this occasion JP was asleep on her own.  She woke to find the appellant's hand inside her pyjama pants, he again digitally penetrated her vagina and he touched her clitoris for around 10 minutes.  JP also said there were other occasions when the appellant entered her bedroom and touched her on the vagina.

    [57]Crimes Act 1900 (NSW), s 61D(1).

45. The third, fourth, fifth and sixth counts charged indecent assaults on SH[58], which occurred on occasions when she was aged six, seven or eight years.  The offences arose out of two incidents that occurred when SH was staying overnight at the appellant's home.  On each occasion the appellant went into the bedroom where SH and the appellant's daughter were sleeping, wakened SH, and made her masturbate him.  On each occasion he ejaculated and rubbed semen over the mound of SH's vagina with his penis.  SH gave evidence of similar incidents that had occurred on other occasions. 

    [58]Crimes Act 1900 (NSW), s 61E(1).

46. The seventh, eighth and ninth counts charged aggravated indecent assaults against AK[59], which took place when she was aged nine years.  The seventh and eighth counts charged offences that occurred on an occasion when the appellant took AK and his daughter on an outing to the beach.  The appellant suggested that the girls swim between his legs.  On both occasions when AK did so, the appellant pinned her between his legs, exposing his penis to her.  The ninth count charged an incident that occurred on an occasion when AK was staying overnight at the appellant's home.  AK had an ear infection and she lay on the appellant's lap while he put drops in her ears.  AK felt the appellant's erect penis rubbing against her cheek bone as he moved her head to position it in the light.  When she swapped sides so that the appellant could put drops in her other ear, AK again felt his erect penis against her face.  AK gave evidence of another occasion on which she had sat on the appellant's lap and felt his penis "digging into her buttock" as he moved her legs from side to side.  She said that on other occasions the appellant had exposed his penis and testicles to her. 

    [59]Crimes Act 1900 (NSW), s 61E(1A).

47. The tenth count charged the appellant with inciting EE to commit an act of indecency with him[60].  EE was 15 years old at the time.  She had come to know the appellant when she was doing a work experience placement with his wife.  The offence was alleged to have occurred on an occasion when the appellant had driven EE to her home.  EE said that as they walked down the driveway at her home they had starting kissing and that she had moved her hand onto the appellant's erect penis over his clothing.  EE gave evidence of another occasion in a park when she had sat leaning against the appellant and felt his erect penis against the small of her back.  They had kissed and the appellant had touched her nipples and vulva through her clothing. 

    [60]Crimes Act 1900 (NSW), s 61E(2).

48. The eleventh count charged the appellant with committing an act of indecency towards SM when SM was 12 or 13 years old[61].  The appellant and SM were both appearing in a television series called Hey Dad..!.  The appellant came out of his dressing room, stood in front of a mirror in SM's view and undid his belt, letting his pants and underpants drop to his ankles.  He wiggled his hips back and forth exposing his penis as he looked at SM in the mirror.  SM also gave evidence of occasions when she had sat on the appellant's lap while publicity photographs were taken.  On these occasions SM said the appellant had put his hand underneath her and touched her on the chest, making her feel uncomfortable. 

    [61]Crimes Act 1900 (NSW), s 61E(2).

49. AA, a member of the appellant's extended family, gave evidence of an occasion when she was aged between 10 and 14 years when the appellant touched her on the breast and between her legs as she was swimming.  AA also gave evidence of seeing the appellant in her bedroom touching his genitals while he stood naked in front of a mirror with the bedroom door open.  On another occasion, AA said the appellant had touched her breasts shortly after his daughter left the room.

50. BB, another member of the appellant's extended family, gave evidence of an incident that occurred when she was 11 years old.  She was at a birthday party at the appellant's home when he touched her breasts under her shirt and put his hand underneath the elastic of her jeans. 

51. VOD stayed overnight with SH at the appellant's home on occasions when she was aged between seven and nine years.  She gave evidence that the appellant had come into the bedroom which she was sharing with SH and walked around the room naked and that she had seen his genitals. 

52. The workplace tendency witnesses all worked in the costume department of Hey Dad..!.  LJ was about 24 years old at the time.  She said that the appellant often slept in his dressing room during breaks and that she had to wake him.  On occasions she would find him naked and uncovered.  On other occasions LJ said that the appellant had made her feel uncomfortable by trying to grab her breast when hugging her and brushing past her, rubbing his genitals against her back or bottom. 

53. CS was about 19 or 20 years old when she worked on Hey Dad..!.  She said the appellant had made her feel uncomfortable by, when brushing past her, making contact with her bottom or breast with his genitals or hands.  On one occasion, while in his dressing room, the appellant exposed his penis to CS. 

54. VR was 18 years old when she worked on Hey Dad..!.  On a couple of occasions the appellant had touched her near her breast.  After the third occasion VR determined that the touching had not been accidental.  She had to take clothes into the appellant's dressing room and sometimes she woke him from a nap.  On one occasion the appellant was naked and she pulled up a sheet to cover him.  After the third occasion when she found the appellant lying naked on his bed, VR reported the matter to her supervisor.

    The appellant's submissions

55. In this Court the appellant acknowledges that the evidence of JP was admissible as tendency evidence on the trial of the counts involving SH and vice versa because each involved the surreptitious sexual molestation of a child in bed notwithstanding that another child was close by.  He is critical of the trial judge and the Court of Criminal Appeal for the failure to articulate how the remaining tendency evidence gained its significant probative force.  He asks how satisfaction that he exposed his penis to a nine year old child swimming between his legs makes it more probable that he encouraged EE, a 15 year old girl, to put her hand over his penis as they kissed. 

    Conclusion

56. The focus of the appellant's submission on the dissimilarity in the acts and the circumstances in which they occurred ignores the tendency that they were adduced to prove.  The particular stated in the tendency notice, that the conduct occurred in the vicinity of another adult, served to highlight the appellant's willingness to act on his sexual interest in underage girls despite the evident danger of detection.  It would have been more accurate to particularise the conduct as occurring in the vicinity of another person, since on some occasions it was another child who was in the vicinity.  In EE's case, there was no evidence that any person was in the vicinity.  Nonetheless, the evidence in support of that count was that the appellant encouraged EE to stimulate his penis as they stood kissing in the driveway of her family home, in circumstances in which EE was fearful that they would be seen.  The evidence as a whole was capable of proving that the appellant was a person with a tendency to engage in sexually predatory conduct with underage girls as and when an opportunity presented itself in order to obtain fleeting gratification, notwithstanding the high risk of detection. 

57. An inclination on the part of a mature adult to engage in sexual conduct with underage girls and a willingness to act upon that inclination are unusual as a matter of ordinary human experience.  Often, evidence of such an inclination will include evidence of grooming of potential victims so as to reveal a "pattern of conduct" or a "modus operandi" which would qualify the evidence as admissible at common law.  But significant probative value may be demonstrated in other ways.  In this case the tendency evidence showed that the unusual interactions which the appellant was alleged to have pursued involved courting a substantial risk of discovery by friends, family members, workmates or even casual passers‑by.  This level of disinhibited disregard of the risk of discovery by other adults is even more unusual as a matter of ordinary human experience.  The evidence might not be described as involving a pattern of conduct or modus operandi – for the reason that each alleged offence involved a high degree of opportunism; but to accept that that is so is not to accept that the evidence does no more than prove a disposition to commit crimes of the kind in question.

58. Given the complainants' ages, consent was not an issue in any of the counts.  It was the defence case on each count that the complainant had fabricated her account.  That the tendency evidence did more than prove a disposition to commit crimes of the kind in question, and was actually of significant value as proof of his guilt of the offences charged, can be illustrated by hypothesising separate trials in respect of each complainant with the only evidence against the appellant being the evidence of the complainant.  In each such case, the jury would be presented with a prosecution case inviting it to conclude beyond reasonable doubt that the appellant had engaged in behaviour towards the complainant which involved predatory sexual activity pursued by taking opportunistic advantage of a social or family or work occasion in circumstances in which the appellant courted a real risk of discovery by other adults. 

59. Considered in isolation, JP's evidence might have seemed inherently unlikely:  the appellant, a family friend, at dinner in JP's home, absented himself from the party and came into her bedroom, and without making any attempt to ensure her silence, commenced to invasively sexually assault her while his daughter lay sleeping in the same bed.  The jury might well be disinclined to accept JP's evidence as satisfying it, beyond a reasonable doubt, that the appellant had, in fact, engaged in conduct which was so much at odds with the jury's experience of the probabilities of ordinary human behaviour.  Proof of the appellant's tendency to engage in sexual activity with underage girls opportunistically, notwithstanding the evident risk, was capable of removing a doubt which the brazenness of the appellant's conduct might otherwise have raised. 

60. The force of the tendency evidence as significantly probative of the appellant's guilt was not that it gave rise to a likelihood that the appellant, having offended once, was likely to offend again.  Rather, its force was that, in the case of this individual accused, the complaint of misconduct on his part should not be rejected as unworthy of belief because it appeared improbable having regard to ordinary human experience.

61. As explained above, there are two matters which must be considered. The first matter, involving the extent to which the evidence supports a tendency, does not require that the evidence be considered "by itself". In the words of s 97(1), the evidence of either "conduct" or "a tendency" can be used to determine the tendency relied upon by "having regard to other evidence adduced or to be adduced". In other words, evidence of a tendency might be weak by itself but its probative value can be assessed together with other evidence.

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

63. The probative value of the evidence of each complainant and of AA, BB and VOD lay in proof of the tendency to act on the sexual attraction to underage girls, notwithstanding the evident risks.  The fact that the appellant expressed his sexual interest in underage girls in a variety of ways did not deprive proof of the tendency of its significant probative value.

64. The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant. The Court of Criminal Appeal did not err in finding that the tendency evidence of each of the complainants and AA, BB and VOD met the condition imposed by s 97(1)(b) in relation to each count in the indictment.

65. It will be recalled that the evidence of the workplace tendency witnesses was confined to proof of the offence charged in count 11.  Relevantly, the trial judge assessed that the evidence of the workplace tendency witnesses was capable of establishing the appellant's tendency to expose his genitalia to females.  His Honour considered that the workplace tendency witnesses' evidence had significant probative value to the determination of whether the appellant had acted as SM alleged by exposing his genitals to her.  In circumstances in which SM's evidence was said to have been fabricated, this conclusion did not involve error.  As earlier noted, the Court of Criminal Appeal's conclusions (i) that the probative value of the tendency evidence was not substantially outweighed by any prejudicial effect it may have on the appellant, and (ii) that the directions concerning the confined use to be made of the workplace tendency witnesses' evidence were sufficient, are not the subject of the appeal in this Court. 

    Orders 

66. For these reasons there should be the following order. 

    Appeal dismissed.

67. GAGELER J.   One of the exclusionary rules set out in the Uniform Evidence legislation[62] is labelled the "tendency rule".  The tendency rule is that "[e]vidence 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 … to act in a particular way, or to have a particular state of mind unless … 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"[63].  The probative value of evidence is "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue"[64].

    [62]See Evidence Act 1995 (Cth), Evidence Act 1995 (NSW) and cognate legislation in other States and Territories.

    [63]Section 97(1).

    [64]Dictionary, Pt 1, definition of "probative value". (The definition appears in s 3(1) of the Evidence Act 2001 (Tas).)

68. The effect of the tendency rule is to make evidence inadmissible to prove a tendency as a step in proving or disproving the existence of another fact, being a fact that is in issue, unless the court evaluates the extent to which the evidence could rationally affect the assessment of the probability of the existence of the fact in issue as "significant".  Consideration of how high the bar of "significance" should be set in undertaking that evaluation usefully begins with a simple question.  Why does the tendency rule exist? 

69. The scheme of the Uniform Evidence legislation is that no evidence is admissible at all in a civil or criminal proceeding unless it is evidence that could (if accepted) rationally affect the assessment of the probability of the existence of a fact in issue[65].  Tendency evidence adduced about a defendant by the prosecution in a criminal proceeding is subject to the special rule that it cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect on the defendant[66].  On top of all that, a court has discretion to refuse to admit evidence the probative value of which is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, or be misleading or confusing, or cause or result in undue waste of time[67].  And on top of all that again, a court in a criminal proceeding has an overriding duty to refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the defendant[68].  Given all of those other potential barriers to its admissibility and use, why is there added this particular barrier to the admissibility of evidence that has the potential rationally to affect the assessment of the probability of the existence of a fact in issue by contributing to proof that a person has or had a tendency to act in a particular way or to have a particular state of mind? 

    [65]Sections 55 and 56.

    [66]Section 101.

    [67]Section 135.

    [68]Section 137.

70. To answer that question, it is necessary to be clear about the problem to which the tendency rule is directed.  The problem arises from the cognitive process necessarily involved in using tendency evidence to assess the probability of the existence of a fact in issue.  The cognitive process is that mapped out in the statement of the tendency rule itself.  Tendency evidence – be it of character or reputation or of conduct other than an occasion in issue in a proceeding – is evidence that is used to prove to the tribunal of fact that a person has or had a tendency to act in a particular way or to have a particular state of mind.  The tendency so proved to the tribunal of fact is then used by the tribunal of fact to predict or (to adopt terminology which describes the process of reasoning employed more accurately) to "postdict"[69] the action or state of mind of the person on the occasion or occasions in issue in the proceeding.  Applied to evidence of past conduct, tendency reasoning is no more sophisticated than:  he did it before; he has a propensity to do this sort of thing; the likelihood is that he did it again on the occasion in issue. 

    [69]Saks and Spellman, The Psychological Foundations of Evidence Law, (2016) at 151.

71. Tendency reasoning, as courts have long recognised, is not deductive logic.  It is a form of inferential or inductive reasoning.  What it involves is "admeasuring the probability or improbability of the fact ... in issue ... given the fact or facts sought to be adduced in evidence"[70].  In the admeasurement of that probability or improbability, as courts have again long recognised, there inheres a very real risk of attaching "too much importance" to the tendency evidence – of giving tendency evidence "too much weight"[71].  The common law traditionally took an extremely conservative approach to managing that risk, at least in criminal proceedings.

    [70]Martin v Osborne (1936) 55 CLR 367 at 385; [1936] HCA 23, quoted in Hoch v The Queen (1988) 165 CLR 292 at 294; [1988] HCA 50.

    [71]Perry v The Queen (1982) 150 CLR 580 at 585-586; [1982] HCA 75.

72. The problem that inheres in tendency reasoning has come to be exposed by social science research and explained in social science literature in more precise terms.  The problem is one of cognitive bias, amounting to an inclination observable on the part of most persons to overvalue dispositional or personality-based explanations for another person's conduct and to undervalue situational explanations for that conduct.  The bias is towards overestimating the probability of another person acting consistently with a tendency that the person is thought to have – of treating the person as more consistent than he or she actually is[72].

    [72]Saks and Spellman, The Psychological Foundations of Evidence Law, (2016) at 157-158.

73. That problem of cognitive bias in tendency reasoning is separate from any added danger which might arise from the potential for a tribunal of fact to make some improper use of tendency evidence.  The potential for a tribunal of fact to make improper use of tendency evidence is readily accommodated within an evaluation of the prejudicial effect of the evidence[73].  Cognitive bias can perhaps be thought of as a form of prejudice, but it really is a problem of a different sort from the problem of a tribunal of fact making improper use of evidence.  The problem is of a different sort because it inheres in the process of reasoning involved in the tribunal of fact making entirely proper use of evidence.

    [73]HML v The Queen (2008) 235 CLR 334 at 354 [12]; [2008] HCA 16.

74. To recognise that the tendency rule is directed to the problem of cognitive bias is consistent with its legislative history.  The legislative history is recounted in detail in the reasons for judgment of Nettle J.  Enough for present purposes is to emphasise the most salient aspects.

75. The interim report of the Australian Law Reform Commission, which preceded the enactment of the Uniform Evidence legislation, drew attention to the considerable body of psychological research which had come to bear on the topic of tendency reasoning by 1985.  That research, the Commission pointed out, indicated not only that "the concept of character in the narrow sense of general disposition has little value as a predictive tool of human behaviour" but also that "there is a real danger that evidence from which a character inference can be drawn will be given disproportionate weight by the fact-finder, compared with the weight scientific studies suggest it should have"[74].  

    [74]Australian Law Reform Commission, Evidence, Report No 26 (Interim), (1985), vol 1 at 452 [797], 453 [799].

76. The Commission stated[75]:

    "Psychological studies indicate that, in the absence of detailed information on an individual's history and personality, the chances of accurate prediction are very low unless the individual is in similar situations – it is the behaviour in a similar situation rather than an inferred character trait which justifies prediction."

    [75]Australian Law Reform Commission, Evidence, Report No 26 (Interim), (1985), vol 1 at 452 [797].

77. The Commission concluded[76]:

    "The research confirms the need to maintain strict controls on evidence of character or conduct and for such evidence to be admitted only in exceptional circumstances.  It demonstrates, however, that the emphasis of the law should be changed.  For the sake of accurate fact-finding, fairness and the saving of time and cost, the law should maximise the probative value of the evidence it receives by generally limiting it to evidence of conduct occurring in circumstances similar to those in question.  Only for special policy reasons should other evidence of character or conduct be received."

    [76]Australian Law Reform Commission, Evidence, Report No 26 (Interim), (1985), vol 1 at 456 [800].

78. In its interim report, the Commission proposed a multilayered solution to the problem to which the psychological research had pointed.  There should be a general statutory rule to the effect that evidence of specific conduct or a specific state of mind should not be admissible to prove that a person had a tendency to act in a particular way or to have a particular state of mind.  There should be an exception from that rule in a civil or criminal proceeding only where the court was satisfied that it was reasonably open to find that the person did some other particular act or had some other particular state of mind and that the act or state of mind and the circumstances in which it was done or existed were substantially and relevantly similar to the act or state of mind and circumstances in issue in the proceeding.  Even then, tendency evidence about a defendant should not be adduced by the prosecution in a criminal proceeding unless that evidence overcame the additional hurdles of being relevant to a fact in issue that was substantially in dispute in the proceeding and of having "substantial probative value"[77].  The matters to which the court was to have regard in determining whether the evidence had substantial probative value should include:  the nature and extent of the similarity; the extent to which the act or state of mind to which the evidence related was unusual; in the case of evidence of a state of mind, the extent to which the state of mind was unusual or occurred infrequently; and, in the case of evidence of an act, the likelihood that the defendant would have repeated the act, the number of times on which similar acts had been done, and the period that had elapsed between the time when the act was done and the time when the defendant was alleged to have done the act that the evidence was adduced to prove[78].  The Commission repeated that proposal in its final report[79].

    [77]Australian Law Reform Commission, Evidence, Report No 26 (Interim), (1985), vol 2 at 47.

    [78]Australian Law Reform Commission, Evidence, Report No 26 (Interim), (1985), vol 2 at 47.

    [79]Australian Law Reform Commission, Evidence, Report No 38, (1987) at 101 [176(a)].

79. The Australian Law Reform Commission's proposal was not taken up in the Uniform Evidence legislation.  What emerged in place of the proposal in the legislation as originally enacted in 1995 was a single statutory rule applicable in civil and criminal proceedings alike.  The rule was couched in terms that evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, was not admissible to prove that the person had a tendency to act in a particular way, or to have a particular state of mind, if the court thought that the evidence would not have significant probative value[80].  To that was added the prohibition on use against a defendant in a criminal proceeding of tendency evidence adduced about the defendant by the prosecution unless the probative value of the evidence substantially outweighs any prejudicial effect on the defendant[81].

    [80]Section 97.

    [81]Section 101(2).

80. Exactly why the Australian Law Reform Commission's proposal was departed from does not appear from publicly available sources.  The legislative choice that was made cannot be explained as a preference to adhere to the approach of the common law:  the structure and language of the statutory rule differed markedly from the common law rule as it came to be definitively stated in Australia almost contemporaneously with the enactment of the Uniform Evidence legislation[82].  Against the background of the Commission's careful identification of the underlying problem with tendency evidence and the implicit rejection of the Commission's proposed solution, however, two aspects of the legislative choice that was made come into sharp relief. 

    [82]See Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7.

81. First, the legislative choice was for tendency evidence to be admissible only if adjudged by a court to meet a threshold of probative value set above the minimum requirement for any evidence to be admissible, being simply that the evidence be capable of bearing on the assessment of the probability of the existence of a fact in issue.  The higher threshold set for evidence used for tendency reasoning was that it be capable of bearing on the assessment of the probability of the existence of a fact in issue to a "significant" extent.  The threshold of significant probative value, as was soon pointed out in the case law, is lower than that of "substantial" probative value; but, to meet the threshold of significant probative value, evidence must still be "important" or "of consequence" to the assessment of the probability of the existence of a fact in issue[83]. 

    [83]Lockyer (1996) 89 A Crim R 457 at 459.

82. Second, the legislative choice was that a court was not to be constrained or legislatively guided as to the considerations which might be taken into account in forming the judgment that tendency evidence met that threshold.  In particular, tendency evidence capable of meeting the threshold was not to be limited to evidence of an act or state of mind occurring in circumstances substantially and relevantly similar to the act or state of mind and circumstances in issue.

83. The legislative history does not conclude with the enactment of the Uniform Evidence legislation in 1995.  In 2005, the Australian Law Reform Commission, the New South Wales Law Reform Commission and the Victorian Law Reform Commission jointly conducted a review of the Uniform Evidence legislation.  In the course of that review, they revisited the psychological research to which the Australian Law Reform Commission had referred in 1985.  They observed in their joint report that a review of the psychological literature since 1985 and of psychological teaching current in 2005 confirmed and in some cases strengthened the Australian Law Reform Commission's previous analysis[84].  Tendency evidence, as the Commissions then put it by way of summary, "poses problems for the fact-finding process because the probative value of such evidence tends to be overestimated and the evidence can be highly prejudicial"[85].  Their joint report contains no suggestion that they saw the suite of statutory rules which had then been in operation for ten years as other than an appropriately tailored legislative response to those problems. 

    [84]Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, ALRC Report No 102, NSWLRC Report No 112, VLRC Final Report, (2005) at 83 [3.19].

    [85]Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, ALRC Report No 102, NSWLRC Report No 112, VLRC Final Report, (2005) at 366 [11.5].

84. Characterising the tendency rule as "a preliminary admissibility screen which operates in both civil and criminal proceedings", and noting that "in criminal proceedings, there are other requirements that must be satisfied"[86], the Australian Law Reform Commission, the New South Wales Law Reform Commission and the Victorian Law Reform Commission in their joint report in 2005 recommended no change to the formulation of the threshold for the admissibility of tendency evidence in terms of significant probative value.  They rejected submissions that the threshold should be removed in civil proceedings[87].  They also rejected submissions that the threshold should be raised in criminal proceedings by replacing "significant" with "substantial"[88].  The only change they recommended to the rule was a drafting change – to remove a double negative from the text as originally enacted[89].  The Uniform Evidence legislation was subsequently amended to reflect that recommendation[90].  The result is the tendency rule in its current form.

    [86]Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, ALRC Report No 102, NSWLRC Report No 112, VLRC Final Report, (2005) at 379 [11.48].

    [87]Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, ALRC Report No 102, NSWLRC Report No 112, VLRC Final Report, (2005) at 375 [11.36].

    [88]Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, ALRC Report No 102, NSWLRC Report No 112, VLRC Final Report, (2005) at 379 [11.51].

    [89]Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, ALRC Report No 102, NSWLRC Report No 112, VLRC Final Report, (2005) at 378 Recommendation 11-3.

    [90]Eg, Evidence Amendment Act 2008 (Cth), Sched 1, item 42; Evidence Amendment Act 2007 (NSW), Sched 1 [38].

85. Plainly enough, the tendency rule is not an attempt entirely to remove the risk of overestimation of the probative value of tendency evidence to which attention was drawn in 1985 and again in 2005.  The risk is inherent in any tendency reasoning, and the rule admits of the possibility of evidence being admitted to prove or disprove the existence of a fact in issue through a process of tendency reasoning. 

86. The tendency rule is, rather, best explained as confining the availability of tendency reasoning to evidence adjudged capable through the application of tendency reasoning of affecting the assessment of the probability of the existence of a fact in issue to an extent significant enough to justify the risk of cognitive error which tendency reasoning entails.  The statutory standard of "significant", and its non-statutory but helpful synonyms "important" and "of consequence", are best understood and applied purposively in that light. 

87. For a court to think that tendency evidence has significant probative value, it must be satisfied that using the evidence for tendency reasoning makes the existence of a fact in issue significantly more probable or improbable.  If the question is just how much more probable or improbable, the answer is enough to justify the ever-present risk that the objective probability will be subjectively overestimated.  Putting the same point more colloquially, the court must be comfortable that the evidence is of sufficient weight to justify the risk of the evidence unwittingly being given too much weight.

88. The significance to be adjudged through the application of that standard is between the tendency evidence and the probability of the existence of a fact in issue.  The connection between the two, however, lies in the particular tendency that is alleged.  That is to say, whilst the focus is on the connection between the tendency evidence and the probability of the existence of the fact in issue, the particular tendency is the lens through which the focus occurs.

89. To return to the explanation already given of the essential nature of tendency reasoning, the degree to which tendency evidence is capable of rationally affecting the assessment of the probability of the existence of the fact in issue is a function of two considerations. 

90. The first consideration is the extent to which the evidence (alone or with other evidence adduced or to be adduced by the party seeking to adduce the evidence) is capable of rationally affecting the assessment of the probability of the person having or having had a tendency to act in a particular way or to have or have had a particular state of mind.  Unless the evidence as a whole is capable of establishing to the requisite standard of proof that the person has or has had the alleged tendency, tendency reasoning can go no further. 

91. Sometimes a tendency will be capable of being established to the requisite standard by evidence of how a person acted on one other occasion or on a small number of unrelated other occasions.  More commonly, what will need to be shown to establish a tendency is a pattern of behaviour:  the person having acted in a particular way, or in a manner which demonstrates the person to have a particular state of mind, in repeated circumstances in which common factors have been present.

92. Courts of criminal appeal have properly pointed out that a tendency to act in a particular way or to have a particular state of mind can be established by evidence of past conduct without that evidence needing to disclose a "striking pattern of similarity between the incidents"[91].  That is not, however, to detract from the importance of factors indicative of some sort of pattern to inferring tendency from conduct and to assessing the strength of such tendency as might be found.  In the language of Basten JA in Saoud v The Queen[92], for evidence of conduct to establish that a person had a tendency to act in a particular way or to have a particular state of mind "will almost inevitably require degrees of similarity, although the nature of the similarities will depend very much on the circumstances of the case".

    [91]R v Ford (2009) 201 A Crim R 451 at 485 [125].

    [92](2014) 87 NSWLR 481 at 491 [44].

93. The second consideration is the extent to which the tendency established by the evidence is (alone or with other evidence adduced or to be adduced by the party seeking to adduce the evidence) capable of rationally affecting the assessment of the probability of the person having acted in a particular way or having had the state of mind alleged on an occasion in issue in the proceeding.  Important at this stage of the analysis will be the specificity of the tendency and how precisely that tendency correlates to the act or state of mind that the person having the tendency is alleged to have had on the occasion in issue.  That is because, other considerations being equal, the greater is the specificity of the tendency and the greater is the correlation between the tendency and the act or state of mind in issue, the greater will be the predictive or "postdictive" value of the tendency in that the greater will be the likelihood that the person acted or thought in conformity with the tendency on the occasion in issue.  

94. Making and illustrating that point, Leeming JA said in El-Haddad v The Queen[93]:

    "[T]he specificity of the tendency directly informs the strength of the inferential mode of reasoning.  It is easy to see why.  It is, for example, one thing to say that a man has a tendency to steal cars; that says something, but not very much, as to whether he stole a particular car the subject of a charge.  It is quite another to say that a man has a tendency to steal black European sports cars and then set them on fire, if the fact in issue is whether that man stole and burnt a black Porsche."

    [93](2015) 88 NSWLR 93 at 113 [72].

95. Of course, the significance of tendency reasoning is not always as limited as that simple illustration might suggest.  The Victorian Director of Public Prosecutions, intervening in the present appeal, draws attention to the circumstance that tendency reasoning assumes added significance in a typical case of historic sexual assault.  Typically, the defendant was an adult and the complainant was a child at the time of the sexual assault charged.  The complainant gives evidence that the sexual assault occurred in a setting in which there were no witnesses to the assault.  The defendant was known to the complainant.  There is no issue about identity.  The defendant denies any wrong-doing.  Whether the defendant committed the sexual assault charged comes down to whether the complainant or the defendant is to be believed. 

96. The Victorian Director of Public Prosecutions points out that evidence of the defendant having committed other sexual assaults, contributing to proof that the defendant had a tendency to commit sexual assault, informs the assessment of the probability of the defendant having committed the sexual assault charged, not only by increasing the likelihood that the defendant acted in accordance with that tendency on the occasion to which the charge relates, but also by making more plausible the testimony of the complainant that the defendant did so act on that occasion and less plausible the testimony of the defendant that he did not.  Enhancing the plausibility of the complainant's testimony enhances the significance of the tendency evidence to proof of the prosecution case[94].

    [94]See Stubley v Western Australia (2011) 242 CLR 374 at 416-417 [143]; [2011] HCA 7.

200. If that is to be regarded as acceptable, what then is to be the limit to the admission of tendency evidence?  Does it, for example, follow that, where an accused is charged with a dozen counts of theft alleged to have been committed against as many female victims ranging between six and 24 years of age, each in different circumstances, by different means and for different amounts, together those allegations represent such a pattern of interconnected behaviour as to establish a tendency to commit theft from young female victims that renders the entirety of that evidence admissible in proof of each count?  Presumably not, but, if not, what is the difference?

201. The answer which the Crown and the Victorian Director of Public Prosecutions offered in the course of argument was that sexual offences of the kind in issue here are different because a tendency to commit sexual offences against children is such an exceptional phenomenon as to make evidence of one such offence significantly probative of an offender having committed another.  That answer is not persuasive.  To adopt and adapt the reasoning of Simpson J in Fletcher[236]:

     "While it may be tempting to think, for example, that evidence of a sexual attraction to [female children] has probative value in a case where the allegations are, as here, of sexual misconduct with [female children], an examination must be made of the nature of the sexual misconduct alleged and the degree to which it has similarities with the tendency evidence proffered.  There will be cases where the similarities are so overwhelming as to amount to what, in pre-Evidence Act days was called 'similar fact' evidence, showing 'a striking similarity' between the acts alleged; and there will be cases where the similarities are of so little moment as to render the evidence probative of nothing."

     [236](2005) 156 A Crim R 308 at 319-320 [50] (McClellan CJ at CL agreeing at 310 [1]).

202. Admittedly, and obviously, the commission of sexual offences against children is unusual by the standards of ordinary decent people.  But it is not unusual in comparison to other crimes.  As the Victorian Director of Public Prosecutions submitted, the bulk of the work of criminal courts in this country is devoted to dealing with sexual offences and the bulk of those offences are sexual offences against children.  And, as is apparent from the psychological studies which the Australia Law Reform Commission emphasised in 1985 and 2005, the fact of sexual offending is not, of itself, a sound basis for the prediction of further sexual offending[237]. The probability of further offending depends on circumstantial and situational considerations of the kind that inform the orthodox application of s 97.

     [237]See generally Australian Law Reform Commission, Uniform Evidence Law, Report 102, (2005) at 80-81 [3.9]-[3.11], 82 [3.14], 85 [3.25].

203. Certainly, Parliament could enact legislation that treats disparate sexual offences committed in different circumstances at different times in different places against different children as significantly probative of the commission of each other. Given the very extensive publicity and information which is nowadays devoted to sexual offences against children, it may be that Parliament will one day choose to do so. But, for the reasons already stated, it should not be thought that that was Parliament's purpose when enacting s 97. And, it is to be remembered that, despite the questions posed in the course of the Australian Law Reform Commission's review of the uniform evidence legislation[238] and more recent proposals for reform[239], Parliament has never made any substantive amendment to s 97 for the purpose of ensuring greater admissibility than the orthodox approach allows. Consistently, therefore, with the dialogue between the courts and Parliament that is manifest in the rules of statutory construction, it would be wrong to suppose that it had.

     [238]Australian Law Reform Commission, Review of the Evidence Act 1995, Issues Paper 28, (2004) at 126, Questions 8-8, 8-9.

     [239]Royal Commission into Institutional Responses to Child Sexual Abuse, Evidence (Tendency and Coincidence) Model Provisions, Public Consultation Draft, (2016); Cossins, "The Behaviour of Serial Child Sex Offenders:  Implications for the Prosecution of Child Sex Offences in Joint Trials", (2011) 35 Melbourne University Law Review 821 at 860-861.  See also Evidence Act 1906 (WA), s 31A, which was inserted in 2004 by s 13 of the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA).

     Velkoski and the position in Victoria

204. Finally, for the sake of completeness, it should be mentioned that, in the course of argument, counsel for the appellant called in aid comments by the Victorian Court of Appeal in Velkoski v The Queen[240] that, although the New South Wales Court of Criminal Appeal and the Victorian Court of Appeal were for some time at one in following the orthodox approach to the application of s 97, the New South Wales Court of Criminal Appeal has in more recent decisions approved the admission of evidence as tendency evidence that, by the standards of the orthodox approach to the application of s 97, did not rise to the level of significant probative value. Counsel for the appellant submitted that Velkoski lends support to the contention that the Court of Criminal Appeal was in error in this case in its treatment of the tendency evidence. 

     [240](2014) 45 VR 680 at 713 [142], 715 [152], 717-718 [163]-[164].

205. The Victorian Director of Public Prosecutions, in support of the Crown, submitted to the contrary that Velkoski was wrongly decided, and should not be endorsed by this Court, because it required a similarity or connection between tendency evidence and the "operative features" of the charged acts[241].

     [241]That argument was based on the reasons expressed in Velkoski (2014) 45 VR 680 at 682 [3], 719 [171].

206. If Velkoski were properly to be read as requiring a similarity or connection between tendency evidence and the "operative features" of charged acts, it would go too far.  As has been explained, what is required is a logically significant connection between either the acts in question, or the circumstances of the offending, or the relationship of the accused to the complainants, or some other aspect of the factual matrix that as a matter of syllogistic reasoning affects an assessment of the probability of the existence of a fact in issue.  But whether or not Velkoski should be read as going too far, it does assist in illuminating the illogic of departing from the orthodox approach to the application of s 97. Velkoski emphasises that to show only that an accused has a sexual interest in a number of complainants and is willing to act upon it as occasion presents is to show no more than that the accused is the type of person who is disposed to and does commit sexual offences.  That is no more than a mere propensity to commit sexual offences and, as has been shown, it would not, without more, be significantly probative of the accused having committed another sexual offence.

207. Counsel for the Crown contended that the real error in Velkoski was that the Victorian Court of Appeal ignored the statutory language of s 97. In his submission, evidence which demonstrates that an accused has a sexual attraction to female children under 16 years of age and is disposed to act upon it as occasion presents is evidence which is highly probative of the accused having a "particular state of mind" and so, therefore, plainly admissible in accordance with the words of the section. By requiring anything more to render such evidence admissible, it was submitted, the orthodox approach is clearly opposed to the terms of s 97 and, therefore, should be rejected.

208. It is, however, the Crown's contention which is opposed to the language of the section, for to posit that an otherwise unparticularised sexual interest in female children under 16 years of age is a "particular state of mind" is to deny the statutory requirement of particularity. As Edelman J observed in effect in the course of argument, it traduces particularity to similarity at a very high or abstract level of generality. And, at such a high or abstract level of generality, the criterion of admissibility becomes no more than, or no different from, the test of relevance under s 55. That cannot be the purpose of s 97.

     Conclusion and orders

209. The admission of the tendency evidence in relation to all counts occasioned a substantial miscarriage of justice.  As was conceded by the Crown, there can be no question of the application of the proviso[242].  Accordingly, the appeal should be allowed, the convictions quashed and the sentences passed below set aside, and it should be ordered that a new trial be had on all counts except Count 10. 

     [242]Criminal Appeal Act 1912 (NSW), s 6(1).

210. GORDON J. This appeal concerns a question of statutory construction of s 97(1)(b) of the Evidence Act 1995 (NSW), which provides relevantly that evidence adduced for the purpose of proving that an accused has or had a tendency to act in a particular way or to have a particular state of mind is inadmissible unless "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".

211. The answer particularly affects the trial of a person charged with multiple sexual offences and how such a trial should be conducted.  The answer is not limited to trials in New South Wales.  It affects the trial of such a person, and how their trial should be conducted, under and in accordance with the Evidence Act 1995 (Cth), the Evidence Act 2001 (Tas), the Evidence Act 2008 (Vic), the Evidence Act 2011 (ACT) and the Evidence (National Uniform Legislation) Act (NT).

     Tendency evidence

212. Tendency evidence provides a foundation for inferring that a person "has or had a tendency to act in [a particular] way or to have a particular state of mind, the existence of which tendency makes it more probable that the accused acted in a particular way or had a particular state of mind at the time or in the circumstances of the alleged offence"[243].  

     [243]IMMv The Queen (2016) 257 CLR 300 at 328 [104]; [2016] HCA 14. See also s 97(1) of the Evidence Act.

213. It follows that it is necessary to identify the tendency "to act in a particular way, or to have a particular state of mind" that is sought to be proved by the particular piece of tendency evidence, and the strength of the inference that can be drawn from that evidence.  

214. That task must be undertaken separately in relation to each piece of evidence. However, in undertaking the task, the court is not to disregard other evidence, including other tendency evidence. That is the consequence of the language of s 97(1)(b), which relevantly provides that tendency evidence may meet the significant probative value threshold "either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence". The limitation implicit in that statutory language is that regard is not to be had to evidence adduced or sought to be adduced by another party to the proceeding.

215. That task is not undertaken in a vacuum. Identifying the tendency said to be proved by the tendency evidence "is no more than a step on the way" in reasoning to a conclusion about the ultimate question posed by s 97(1)(b)[244]:  the extent to which the tendency evidence could rationally affect the assessment of the probability of the existence of a fact in issue.  It has been said that, for evidence to have "significant" probative value, the evidence must be "important" or "of consequence"[245].  That is, "the evidence must be influential in the context of fact-finding"[246].

     [244]See Gardiner v The Queen (2006) 162 A Crim R 233 at 260 [124].

     [245]IMM (2016) 257 CLR 300 at 314 [46], 327 [103]. See also Lockyer (1996) 89 A Crim R 457 at 459.

     [246]IMM (2016) 257 CLR 300 at 314 [46].

216. Substantially for the reasons given by Nettle J, I agree that:

     (1)The "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[247].

     (2)Each count on a multiple count indictment must be considered separately and questions about tendency evidence must be decided separately by reference only to the evidence adduced or sought to be adduced that is relevant to that count[248].

     (3)Whether a piece of evidence has "significant probative value" must be considered separately in relation to each count on the indictment because the facts in issue will differ on each count[249].

     (4)Whether tendency evidence has "significant probative value" in relation to a particular count must be decided for each count by reference to the facts in issue on that count[250].

     (5)Determining whether tendency evidence has "significant probative value" requires precise particularisation of each tendency alleged as well as logical analysis of how the alleged tendency, if proved by the identified evidence, relates to the facts in issue in respect of the specific count being considered, in order to determine if the identified evidence would have significant probative value in relation to those facts in issue[251].

     (6)Evidence that an accused has committed an offence is not, without more, significantly probative of the accused having committed the offence in question[252].

     (7)Tendency evidence has "significant probative value" where, for example, that evidence provides some logically significant underlying unity or commonality which rationally permits a conclusion that evidence of the accused having committed a sexual offence against one person significantly increases the probability of the accused having committed a sexual offence against another person[253].

     (8)Evidence with "significant probative value" may also include, but is not limited to, evidence that there is a logically significant degree of similarity in the relationship of the accused to each complainant; a logically significant connection between the details of each offence or the circumstances in which each offence was committed; or a logically significant or recognisable modus operandi, system of offending, or pattern of conduct.

     [247]See s 3(1) of the Evidence Act; definition of "probative value" in Pt 1 of the Dictionary to the Evidence Act.

     [248]See KRM v The Queen (2001) 206 CLR 221 at 234 [36], 257 [106], 260 [118], 263‑264 [132]-[133]; [2001] HCA 11; MFA v The Queen (2002) 213 CLR 606 at 617 [34]; [2002] HCA 53.

     [249]See, eg, Rapson v The Queen (2014) 45 VR 103.

     [250]See, eg, Phillips v The Queen (2006) 225 CLR 303 at 317‑318 [44]-[47]; [2006] HCA 4.

     [251]See, eg, HML v The Queen (2008) 235 CLR 334 at 350‑352 [4]-[5]; [2008] HCA 16; IMM (2016) 257 CLR 300 at 314 [46].

     [252]See, eg, BBH v The Queen (2012) 245 CLR 499 at 525 [70]‑[71]; see also at 522 [61]; [2012] HCA 9.

     [253]See, eg, Hoch v The Queen (1988) 165 CLR 292 at 294-295; [1988] HCA 50; Pfennig v The Queen (1995) 182 CLR 461 at 482; [1995] HCA 7.

217. That set of principles reflects three matters.  First, it reflects the dangers attending the reception of tendency evidence that have long been recognised[254]. Those dangers were recognised, not eliminated, by the enactment of s 97. What was and remains necessary, as a matter of logical probability, are identified similarities or other logically significant connections between the evidence and the facts in issue.

     [254]Reasons of Gageler J at [71]-[77], [83], [85] and Nettle J at [184], [193].

218. Second, it reflects what Gageler J describes as a "conservative approach"[255].  As his Honour puts it, a tendency to be sexually interested in female children or a tendency to engage in sexual activities with female children opportunistically is insufficient to bear on the probability that a person who had such a tendency engaged in a particular sexual activity with a particular female child on a particular occasion to an extent that can properly be evaluated as significant.  More is required.  As already noted, that additional factor may, for example, take the form of some logically significant underlying unity or commonality which rationally permits a conclusion that evidence of the accused having committed a sexual offence against one person significantly increases the probability of the accused having committed a sexual offence against another person.

     [255]Reasons of Gageler J at [111].

219. Third, it reflects that, if admission of the evidence is sought to be justified by describing the "tendency" in broad terms and without the kind of logically significant similarity, connection, underlying unity or commonality referred to earlier, evidence of any sexual misconduct, whether against an adult or a child, may be admitted as tendency evidence at the trial of offences against children. That is not how s 97(1)(b) operates or was intended to operate.

220. That third matter is illustrated here by considering how the tendency evidence of the wardrobe assistants ("LJ", "CS" and "VR") bears upon count 11 – an offence of committing an act of indecency towards "SM" when she was 12 or 13 years old. 

221. SM had worked with the appellant on a television series called Hey Dad..! from eight years of age.  In relation to count 11, her evidence was that the appellant came out of his dressing room on the Hey Dad..! set and stood in front of a mirror in view of SM, made eye contact with her, undid his belt, allowed his trousers to drop to the floor, pulled down his underpants and exposed his penis in the mirror.  He then wiggled his hips back and forth, looking at SM in the mirror and then at his penis.  SM also gave evidence of uncharged acts, which included that, when sat on the appellant's lap for publicity photographs, he would pick her up with his hands on her chest and put his hand underneath her, sometimes moving his hands to touch her vagina.

222. LJ, CS and VR also worked with the appellant on the set of Hey Dad..!.  LJ, CS and VR were adult women.  Each gave evidence of other uncharged acts[256].  For example, in relation to separate uncharged acts, LJ and VR gave evidence that, when they went to wake the appellant in his dressing room, he was naked.  Evidence of those uncharged acts was admitted as tendency evidence in relation to count 11. 

     [256]Reasons of Nettle J at [135]-[138].

223. The Court of Criminal Appeal upheld the trial judge's conclusion on the admissibility of the tendency evidence, including the evidence of the wardrobe assistants.  Two essential tendencies were referred to, and adopted, by the Court of Criminal Appeal – a tendency to have a sexual interest in female children under 16 years of age and a tendency to engage in sexual conduct with female children under 16 years of age, where those tendencies were exhibited in three different but not significantly disassociated contexts:  "of social and familial relationships; [the appellant's] daughter's relationships with her young friends; and the work environment"[257].  Count 11 is concerned with the last context – the work environment.

     [257]Hughes v The Queen [2015] NSWCCA 330 at [197].

224. The Court of Criminal Appeal's application of the "two essential tendencies" to the evidence of the wardrobe assistants meant that the evidence of the wardrobe assistants was admissible as tendency evidence notwithstanding that the wardrobe assistants were not female children under the age of 16.  Aside from the fact that the evidence of the wardrobe assistants related to incidents in the "work environment", the Court of Criminal Appeal did not explain, and it is not apparent, how that evidence relates to the "two essential tendencies".  That approach illustrates not only the difficulty with relying on highly generalised tendencies, but also the difficulty with not undertaking the relevant analysis separately in relation to each piece of evidence on each count on the indictment. 

     Resolution of appeal

225. Both Gageler J and Nettle J conclude that the evidence of "EE", the complainant in relation to count 10, was not admissible on the other counts on the indictment.  I agree with that conclusion.  The relationship between the appellant and EE was not and could not be consensual, but the nature of their relationship was undoubtedly different from that between the appellant and each of the other complainants.  As Gageler J notes[258], in light of the prosecution's concession, that conclusion is sufficient for the convictions on counts 1 to 9 and 11 to be quashed. 

     [258]Reasons of Gageler J at [115].

226. I agree with the orders proposed by Gageler J and Nettle J.