BC v R

1. [1]

   SIMPSON JA: I agree with Beech-Jones J.

2. [2]

   ADAMS J:

Introduction

1. [3]

   On 9 June 2015 the applicant (who was born on 21 July 1982) was arraigned on an indictment containing 20 counts of sexual assaults of various kinds involving four complainants. In respect of complainant A, counts 1 to 3 alleged offences between 3 July 1994 and 4 July 1996 (he then being 5 years old and the applicant between 11 and 13 years old), and counts 8 to 16 alleged offences between 3 July 1999 and 31 December 2000 (when he was 10 to 11 years old and the applicant was 16 to 18). In respect of complainant B, counts 4 to 7 alleged offences between 14 September 1997 and 15 September 1998 (when she was 3 to 5 years old and the applicant 15 to 16) and count 18 (when she was 10 years old and the applicant 21 to 23). In respect of complainant C, count 17 alleged an offence occurring between 11 April 2002 and 12 April 2003 (when she was 5 years old and the applicant was 20). The remaining counts, 19 and 20, allege sexual assaults on complainant D, who had a cognitive impairment, between 31 December 2008 and 1 February 2011 (when he was 4 and 5 years old and the applicant was 25 to 28). Following arraignment, the applicant pleaded not guilty and sought a separate trial for counts 1 to 3, and counts 8 to 16 and also separate trials for the counts relating to each of complainants B, C and D, thus five trials covering all the charges in the indictment. (The age variations reflect the uncertainty about the dates on which the offences occurred, so that in relation, say, to counts 1 to 3, which occurred on the one occasion, the applicant was 11 or 12 or 13 years of age.)

2. [4]

   The Crown opposed this application upon the ground, essentially, that the evidence in respect of each of the charges is admissible in respect of the others by application of the tendency rule. In a pretrial hearing, the learned primary judge read the statements of each of the complainants and one further witness (in respect of an uncharged offence involving E, detailed below) and two complainants gave evidence. Her Honour concluded that the evidence relied on as tendency was admissible and that none of the counts should be severed. On 10 June 2015 the applicant sought to adjourn the trial to permit an appeal to this Court under s 5F(3) of the Criminal Appeal Act 1912 (NSW). That application was refused and the trial proceeded for a further four days, on the last of which it was aborted. The trial is currently listed for hearing on 14 March 2016. Somewhat unusually in an appeal of this kind, as it happened all of the complainants have given their evidence at trial and have been cross-examined. Pursuant to s 306B of the Criminal Procedure Act 1986 (NSW) the prosecution will be entitled to rely on the recorded evidence already given when the trial or trials are ultimately conducted.

3. [5]

   The applicant seeks leave to appeal from the refusal of the primary judge to order separate trials upon the following grounds –

The Evidence Act 1995 (NSW)

1. [6]

   It is accepted that the provisions of this Act which deal with tendency and coincidence evidence determine the issues in this appeal. The relevant provisions are –

The Crown case

1. [7]

   The prosecution accepts for present purposes the accuracy of the summary of facts set out in the applicant’s written submissions. (I have anonymised the complainants’ details and omitted indicating editorial changes for ease of reading.) This is as follows –

Submissions

1. [8]

   In her reasons, the primary judge referred to what she perceived as a difficulty that counsel for the applicant had in articulating the unfair prejudice that might arise and cited as an example of this difficulty the suggestion “that they would misuse the evidence by incorrectly reasoning that, if there were so many complainants, then the allegations must be true”. With respect, this was somewhat to understate counsel’s contentions. In written submissions, he submitted (relying on the judgment of Beazley JA (as her Honour then was) in R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75 at [67]) that evidence of general tendencies might not be sufficiently significant to satisfy the test. This argument was taken up in oral submissions in greater detail, counsel submitting that the evidence did not show a pattern of conduct that sufficed to demonstrate significant probative value and going on to say –

2. [9]

   As to probative value, counsel submitted the evidence was so general that it merely showed a tendency to commit the offences and had no probative significance. He submitted there were “disparate ages” (as I understand it, a reference to the varying age of the applicant at the times of each alleged set of offences as well as the ages of the complainants), places, the offences involved boys and girls and different sexual acts and there was “no common thread other than the allegation of [opportunistic] sexual activity with, as it turns out, persons between the ages of four and fourteen”. Counsel then moved to the issue of concoction submitting that, as B and C were sisters who remained in touch, there was the possible risk of concoction. He also submitted, in effect, that the applicant was placed in the embarrassing position of having to defend the earliest charges (1, 2 and 3), where one issue was doli incapax, which raised the question whether they could be used as tendency evidence in relation to the other offences since (as I understand the argument), even if the alleged acts were committed and the Crown had not overcome the presumption, the jury would be invited to regard those acts as establishing the alleged tendency, despite his acquittal. This would also unduly complicate the trial.

The judgment under appeal

1. [10]

   After noting that it was agreed that, if the tendency argument succeeded, the severance application would not and vice versa, the primary judge summarised the various allegations upon which the Crown relied and then said –

2. [11]

   Dealing with other relevant considerations, the primary judge first considered whether the evidence had “the capacity to affect the probability of the existence of a fact in issue”, a reference to s 55 (all statutory references are to the Evidence Act 1995 (NSW)). In this respect, her Honour stated that, so far as counts 1, 2 and 3 were concerned, to which the principle of doli incapax applied, this was “a matter that does not bother me at this stage of the proceedings. It may bother me at the end of the Crown case”. Referring implicitly to s 97(1)(b), her Honour moved to the probative value of the evidence, stating the evidence “is certainly capable of being ascribed [a probative value]” and, later –

3. [12]

   The judge then said –

4. [13]

   The judge then moved to the issue of concoction, stating that if it were reasonably possible that the evidence had been contaminated or concocted then it should be withheld. This risk was submitted to arise in relation to B and C “because they are sisters and their statements were taken at the same place, same time but … in different rooms … [and] there was a phone call between … [them] beforehand”. Both had given evidence in the (aborted) trial to the effect that they had not discussed the applicant’s conduct towards them. Her Honour concluded that, whilst there had been an opportunity for concoction, there was no motive for it, and there was no evidence of concoction; rather, the evidence was to the contrary. At all events this was, her Honour noted, a matter for the jury to consider when considering the reliability of the tendency evidence.

Discussion

1. [14]

   It is concede d here that the proposed tendency evidence was relevant and no complaint is made about the next step in her Honour’s decision, namely that the proposed evidence had significant probative value within the meaning of s 97(1)(b). The crucial question in this case for determination by the primary judge was whether the probative value of the proposed evidence – namely, the extent to which that evidence “could rationally affect the assessment of the probability of the existence of a fact in issue” (vide the Dictionary) – was so “significant” as to “substantially … [outweigh] the prejudicial effect it might have on” the applicant. It is clear that in this context the “prejudicial effect” is not a reference to the rational and appropriate use of the evidence, adduced for the purpose of proving the Crown case and adversely to the interests of the accused. The prejudice here is prejudice that is unfair in the sense that the jury might, because it shows the accused as guilty of disgusting, criminal or morally reprehensible conduct, give the prosecution case greater or the defence case less weight than it rationally deserves or distract them from the true issues in the case, in short to put a thumb on the scales. There can be little doubt that sexual assaults generally are very likely to engender strong feelings of disgust and indignation, and those upon children especially so. On the face of it, therefore, where the tendency evidence is of this character, its probative value must be correspondingly much more significant than would be necessary where the evidence is less likely to induce strong feelings of antipathy for the accused. This is very far from the case where the tendency evidence is morally or socially inconsequential.

2. [15]

   In almost every case it will only be possible to identify the potential prejudice by reference to the risks of misuse in a general way by pointing to the offensive character of the impugned evidence and the feelings it might engender against the accused which might influence the reasoning of a jury about his guilt. By and large, the significance of this influence, and thus the risk of unfair prejudice, is more likely to be all the greater where the case is otherwise in substance word against word. The risk is essentially incommensurable but it cannot be doubted that evidence likely to engender strong feelings of disapprobation may well be given undue weight, especially in those cases where judgment of comparative credibility is called for. It is not always disapprobation which is the only concern. In Harris v Director of Public Prosecutions [1952] AC 694 at 707 (cited with approval in Markby v R (1978) 140 CLR 108 by Gibbs ACJ at 116) the question is whether the probable effect of the proposed evidence “would be out of proportion to its true evidential value” (see also, Festa v R [2001] HCA 72; 208 CLR 593; 185 ALR 394 per Gleeson CJ at [22]). The evidence might simply be thought to prove more than it really does. Directions to disregard disapprobation are easy to craft; directions as to how much may be made of the tendency evidence are necessarily far less precise and can be difficult to apply.

3. [16]

   The risks of misuse should not be underestimated. These matters are not, in the nature of the case, determined by pure reason or logical analysis. Indeed, in an oft-quoted passage, Gibbs ACJ said (in Markby at 117) –

4. [17]

   In R v Ellis [2003] NSWCCA 319; 58 NSWLR 700; 144 A Crim R 1 the question was whether, in light of the enactment of s 101(2) of the Act, the requirement stipulated by Mason CJ, Deane and Dawson JJ in Pfennig v R (1995) 182 CLR 461 at 482-3; 77 A Crim R 149 at 165 still applied –

5. [18]

   Spigelman CJ (with whom Sully, O’Keefe, Hidden and Buddin JJ agreed) considered that the language of s 101(2) substitutes a new and different test, so that the “no rational view” test no longer applied (Ellis at [88]). The statutory test is whether “probative value substantially outweighs prejudicial effect” (ibid at [89]). The Chief Justice pointed out (at [85]) that “the joint judgment in Pfennig identified the ‘no rational view test’ as the means of determining how it is that probative force and prejudicial effect should be balanced against each other” and concluded (at [89]) that this was inconsistent with the statutory test, requiring only that the probative value of the impugned evidence “substantially outweighs” its prejudicial effect. His Honour observed (at [88], [90]) –

6. [19]

   Spigelman CJ (Sully and O’Keefe JJ agreeing) responded –

7. [20]

   With respect, the assumption suggested to be inappropriate was merely general observation about the general character of propensity evidence, one which, in my experience, is entirely justified. It is very rare that such evidence is relatively innocuous. Where its admissibility is contested, it will usually involve the commission of crimes or morally reprehensible acts. Such conduct is indeed likely to be highly prejudicial. To suggest this is so is not to limit or qualify the application of the Act in any way. Moreover, the test is certainly one of considerable stringency: unless the probative value of the evidence substantially outweighs its prejudicial effect, it must be excluded. With respect, I do not think that Hidden and Buddin JJ should be taken as suggesting an approach to the statutory test that did not actually evaluate the prejudicial character of the proposed evidence against its true probative worth. To my mind, their Honours’ remark was implicitly an admonition to take seriously the risk of prejudice where such evidence is sought to be led and not underestimate the potentially powerful undue influence that propensity or coincidence evidence might have. In the result, the significance of Ellis is merely negative, in the sense that, by reason of the statutory test, the “no rational view” test does not answer all cases: as the prejudicial effect of the impugned evidence varies, so too will its probative value in order to satisfy the test. There is nothing in the judgment that suggests that, under the Act, the potential for prejudice should be given any lesser measure than it had under the common law.

8. [21]

   Although the process for determining admissibility of tendency evidence is now prescribed by the Act and not the common law, the requirement to weigh the risk of unfair prejudice against probative value is scarcely new. Accepting the Pfennig test is not that of the Act, its underlying rationale, that the potential for unfair prejudice is to be taken seriously and the character of its posited probative worth carefully analysed still applies. In Sokolowskyj, Hoeben CJ at CL said of this requirement –

9. [22]

   It is worthwhile, as it seems to me, to set out McHugh J’s succinct and still relevant explanation of the applicable principle, which immediately precedes the above passage (references omitted) –

10. [23]

    I acknowledge that I agreed in the judgment of Hoeben CJ at CL, but further reflection has led me to a different opinion about McHugh J’s “fair minded people” test (though not otherwise about the Chief Judge’s reasoning). There is no “fair minded people test” in s 101; nor does it mention the possibility of an unfair trial: the trial will be fair (in relation to tendency evidence) if its prejudicial effect is substantially outweighed by its probative value. If all that is meant by “the risk of an unfair trial” is one in which evidence was admitted whose probative value did not substantially outweigh its prejudicial effect, then plainly enough it is not inconsistent with the Act. But any different kind of risk is immaterial. It follows that I would respectfully disagree with what fell from Sully J (with whom Grove and Howie JJ agreed) in R v RN [2005] NSWCCA 413 (at [11]) that, “the essence of… [the] task” in considering whether the prejudicial effect of the impugned evidence was substantially outweighed by its probative value, was that described by McHugh J in the passage quoted above. (Although his Honour referred to Ellis, it was simply to support the proposition that each case must be decided on its own facts.) Similarly, with respect, the adoption of the “fair minded people” test by Beazley JA (Buddin and Barr JJ agreeing) in PWD at [71] is inconsistent with s 101.

11. [24]

    The language of McHugh J seems to echo the reference to affronting common sense in the well known passage from the judgment of Gibbs ACJ in Markby at 116 in which his Honour deals with the various attempts to elucidate the relevant standard, which is still informative (citations omitted) –

12. [25]

    Ellis has decided only that s 101(2) is to be applied according to its own terms without reference to other tests, in particular in respect of the evaluation of probative weight. It does not suggest that the notion that propensity evidence “has a prejudicial capacity of a high order” (Pfennig at 165) is mistaken. It is to this consideration, which is not a gloss upon, let alone inconsistent with, s 101, that Hidden and Buddin JJ were referring in their comments.

13. [26]

    The language of the Act and the character of the test for inadmissibility under s 101 have obvious, longstanding roots in the common law. An example to be added to the excerpts referred to above is the following passage from the judgment of Dawson and Gaudron JJ in B v R [1992] HCA 68; 175 CLR 599 at 617-8; 63 A Crim R 225 at 239 (cited as a “convenient starting point” by Toohey J in Pfennig at 178-9) –

14. [27]

    For all that the “no rational explanation” test no longer applies, it was a response to the need to protect a trial from the distorting effects of unfair prejudice in light of a perception – no less reasonable now – that a jury might well have difficulty in dispassionately considering their verdict without prejudice towards the accused and thus convert suspicion into certainty when the evidence, considered appropriately, did not justify that conclusion. That, too, is the essential function of s 101(2). There is nothing in it which suggests that the risk to which it refers is any less than has always been recognised by the common law, nor is the need that the risk be substantially outweighed by probative value anything new. Its effect is simply that the issue of admissibility is to be decided without applying a predetermined standard of probative value but, rather, one that varies with the degree of potential prejudice.

15. [28]

    It is trite that the risk of unfair prejudice might be overcome by appropriate directions. However, it cannot be assumed that they will be effective to obviate it. In Sokolowskyj, Hoeben CJ at CL said, concerning the sufficiency of directions in the particular circumstances –

16. [29]

    It is also worth noting the essay by Mirko Bagaric “The community interest in bringing suspects to trial trumps the right to an impartial decision maker – at least in Victoria” (2010) 34(1) Criminal Law Journal 5 at 8 about the issues raised by pretrial publicity and the disinclination of Courts to stay prosecutions for that reason. Mr Bargaric characterised the judicial belief that jury directions can cure negative impressions formed about an accused as “near heroic” and points out that there “is no evidence to suggest that this is anything other than judicial wishful thinking”. He notes that “human memory and cognition is a complex science” and refers to “a body of work [cited in footnote 4] that suggests that once people form an adverse view they cannot simply discard their preconceptions upon command”. An additional aspect of this problem is shown by the recent jury study, Jurors’ Notions of Justice, An Empirical Study of Motivations to Investigate & Obedience to Judicial Directions (September 2013) undertaken by Professor Jill Hunter of the UNSW Law School. Although it focusses on the attitudes of jurors towards obtaining their own information contrary to directions not to do so, it exposes some of the real difficulties that jurors have with understanding the accusatorial nature of criminal trials and their frustrations with what is seen as limiting the discovery of truth.

17. [30]

    The conscientiousness with which juries approach their responsibilities is not doubted and, at all events, must be taken for granted. But even conscientious attempts to follow corrective directions may well not be effective. Part of the power of feelings of indignation, disgust or disapprobation is the tendency to overestimate one’s ability to put them to one side and to remain unaware of their subconscious influence. Furthermore, the evidence is given by the victim in the presence of the jury, an emotional context likely to excite sympathy. The particular attitudes that a juror might have to the prejudicial evidence cannot be known and the judge necessarily is driven to rely on his or her experience of ordinary human reactions. Judges, if I may respectfully say so, should be cautious about relying too much on their own experience of detachment, bearing in mind that their judicial duties expose them relatively often to disgraceful, wicked conduct or tragic circumstances, which they must deal with dispassionately. It is worth reflecting that years of doing so might lead to an underestimation both of the emotional impact that the material could have on lay people and the real difficulty of achieving objectivity. Nor, despite conscious attempts (assisted by the need to write a judgment and the often substantial ensuing delay) will even a judge always succeed in achieving objectivity. The canard of the common law Bar that bringing the quadriplegic plaintiff into court is as effective, or almost as much, with a judge as with a jury in putting a thumb on the scales, is the product of long experience and hard-headed realism. In short, it is necessary to be realistic about the actual ability of jurors to put aside indignation, disgust or disapprobation, even when given strongly worded directions. This is not to account for the problem – highlighted in Professor Hunter’s jury study – that the prejudicial material might lead a juror to minimise the importance of the directions or even to disregard them altogether in order to do what is believed to be justice.

18. [31]

    This emphasises the importance of carefully assessing both the character and likely effect of the tendency evidence in light of proposed directions and its evidential value.

Consideration

1. [32]

   The reasons of the primary judge were ex tempore and, therefore, it is necessary to focus on the substance of the reasoning, which might not altogether be clearly articulated by the language. Her Honour does not explicitly set out the prejudicial effect the proposed evidence might have, nor the extent of its probative weight. Essentially, her Honour moved straight to the conclusion that directions would adequately deal with the possible misuse of the evidence by the jury reasoning that, because of the number of complainants, the allegations must be true, or otherwise using it “on a basis logically unconnected with the issues in the case”, this being a reference, as I understand it, to the submission by counsel that the jury might draw adverse conclusions, including disbelieving the applicant’s denials, because of disgust of or disapprobation towards him.

2. [33]

   The real question in this case, as pointed out by Hoeben CJ at CL in Sokolowskyj at [48], is the danger that the “jury would use the evidence in the way they were directed not to use it”. A child sexual assault trial is inevitably emotionally charged and evidence of the applicant’s promiscuous interest in young children of both sexes would be very likely to inflame the jury with feelings of indignation, disgust and condemnation. As I have said, there was no discussion by her Honour of the prejudicial nature of the evidence itself or its capacity to influence the jury against the applicant; nor as to the risk that directions might not suffice (though her Honour accepted that judicial directions do not cure everything). With respect, the nature of the particular prejudice and the capacity of directions to deal with it required explicit consideration as an essential part of the balancing process required by s 101. So far as D was concerned, the applicant was aged 25 to 28 years and the complainant was 4 and 5 years old. Any allowance that might have been made for the applicant’s relatively young age at the time of the earlier offences was no longer available; the offence was premeditated (on the first occasion the applicant put jam on his penis and told the complainant he could not watch television until he fellated him); D was also male; and he suffered from some mental problems. These offences (counts 19 and 20) were particularly obnoxious and very likely to engender extremely strong feelings of antipathy for the applicant and sympathy for the complainant. This particular example illustrates the necessity for characterising the particular prejudice that might be excited in respect of each charge or set of charges as part of the weighing process and whether it was reasonable to consider that directions would overcome the prejudice or whether, despite strong directions, the prejudice was so great that there could remain a real risk that the jury would continue to be influenced by it. Also likely to be particularly troubling were the offences committed when the applicant was 20 or so (counts 17 and 18). At the other end of the (nevertheless prejudicial) scale might be thought to be the offences contained in counts 1 to 3 when, although the complainant was 5 years old, the applicant was (on the view most favourable to him) aged only 11. (The uncharged offence was also in this class.) The extent to which the feelings engendered by the offences in counts 17,18,19 and 20 would affect not only the jury’s consideration of those offences but also the others for which the applicant was on trial was a difficult question. However, the primary judge did not discuss it and the reasons were little more than a recitation of the requirements of ss 97(1)(b) and 101(2) without analysis of the issues thrown up by the proposed evidence. Simply to state the risk is not to assess it.

3. [34]

   An additional difficulty with the reasons of the primary judge, with respect, is they do not contain any balancing of the probative value of the evidence against its prejudicial effect. A finding, as here, that the evidence is “important” does not, with respect, answer the question in s 101(2) whether its probative value “substantially outweighs” its prejudicial effect, though I would readily accept that it answers the question of significance for the purpose of s 97(1). The prejudicial effect of each set of charges is very substantial, increasing as the applicant grew older. That of the evidence supporting charges 19 and 20 is difficult to overestimate: the applicant was about 25 (perhaps 28) years old whilst the complainant, also male, was merely 4 or 5 and suffers from various personality disorders. Its probative value, with that of the other evidence, would need to be very high indeed, if it were to outweigh its appalling prejudicial effect. The Crown case focuses not so much on the applicant’s conduct at particular ages but on the overall pattern, but this avoids the question whether, to take the extremes, the sexual activity of a child does at the age of 11 tell one anything significant about what he or she might do at the age of 24. Or, if one started at the other end, what the sexual conduct of a 24 year old would say about his or likely conduct at the age of 11. The focus on pattern obscures the essential task of identifying the probative weight of the particular tendency demonstrated in each charge or in relation to each of the other charges to which it is said to be relevant. So far as counts 1 to 3 are concerned, accordingly, the issue of doli incapax is an additional complication not, as it appears the primary judge thought, the only question. Difficulties of a similar character, though to a somewhat lesser degree, are presented by the probative value of any tendency shown by the applicant’s alleged sexual conduct when he was 16 (though he might have been 18), in respect of counts 4 to 7, 8 to 11 and 12 to 15, so far as counts 16, 17, 18, 19 and 20 are concerned. Tendency is usually concerned with the acts of an adult demonstrating that adult’s propensity to do certain things. However, it is highly speculative, to my mind, to attempt to deduce the likely conduct of an adult from his or her conduct as a 16 year old, let alone from his conduct as an 11 year old or even that of a 16 year old from his conduct as an 11 year old. This was the problem engaged by counsel for the applicant’s reference to disparate ages; and, to my mind, it is one of significant difficulty requiring explicit consideration. With respect, it appears to me that the primary judge’s failure to consider this aspect of the case and, instead, focus on the contended for pattern was to omit highly relevant factors in weighing the probative value of the evidence. It may be that the emphasis placed by both prosecution and defence on the problem of doli incapax had the effect of deflecting her Honour from considering the more important issue raised by the applicant’s age at the commencement of the series of offences.

4. [35]

   Although I have posed the question of weight as one of significance, the real question is posed by s 101, namely whether the probative worth of the evidence substantially outweighed its prejudicial effect. Whether it did so required an analysis of the nature and extent of the likely prejudice and the evidentiary weight of each class of evidence. It is only when this task had been undertaken that the question whether and, if so, what directions would have been adequate to avoid the risk of unfair prejudice could be answered by the primary judge. With respect, the primary judge did not either in terms or in substance undertake the duty reposed in her by s 101(2). It follows that the discretion as to whether there should have been separate trials miscarried, leave to appeal should be granted and ground 2 upheld.

5. [36]

   It is not necessary to consider the other grounds of appeal since, in the event that error was demonstrated, the Court was invited by the parties to consider the question of separate trials itself, rather than remit the issue to the District Court, a course with which I agree.

Conclusion

1. [37]

   It is as well to set out explicitly the fundamental reason why the evidence of other sexual activity may be regarded as relevant to a particular charge under consideration. I found the following passage from the judgment of Leonard v The Queen [2006] NSWCCA 267; 164 A Crim R 374 a helpful explanation –

2. [38]

   It will be recalled that the Crown relied on and the primary judge accepted that the applicant’s conduct depicted what was submitted to be a pattern of conduct. Essentially, the tendency relied on as probative was the fact, if true, that the applicant had “consensual” sexual contact of various kinds, mostly involving fondling and fellatio and, on one occasion, penile intercourse, with very young children with whom he came in contact when, for some reason or other, he was an invitee in their homes. It is obvious that, although the primary judge did not explicitly refer to it in this context, by far the most significant feature of the course of conduct is that the applicant was significantly older than the complainants. Indeed, were it not for this factor, the evidence of his conduct could not be considered to have any probative worth: if the applicant were the same age, more or less, as the complainants, his conduct would be evidence of no more than unremarkable sexual activity; a mere interest in or, even, obsession with sex would not have any probative worth. The focus of the analysis of probative value must encompass, therefore, not only the ages of the complainants but also the age of the applicant.

3. [39]

   I would be prepared to accept, for the purposes of s 97, that the evidence of sexual conduct as an adult (as alleged in counts 16, 17, 18, 19 and 20) will have significant probative value, enlivening the question posed by s 101(2). However, so far as counts 1, 2 and 3 (and the evidence in respect of E) are concerned, I am not satisfied that it would have significant probative value in proof of any of the other counts, given the applicant’s young age at the time of the former conduct. Aside from the difficulty of predicting with any sufficient degree of likelihood from what the applicant did when he was a child of 11 or 13 years what propensities he might have as an adult, I do not think it to be sufficiently understood – and common sense is not an adequate guide – whether the alleged sexual conduct of the applicant at that age is “abnormal” in the relevant sense. Moreover, conduct committed at a time when a perpetrator may be too young to appreciate that what he or she is doing is seriously wrong is fundamentally different from what is otherwise the same conduct committed when its character is fully understood. This is not to give weight to the fact that, as it happens, the doctrine of doli incapax might apply to the earlier acts, since that is material only in the technical sense that it involves an additional element which the Crown must prove should the perpetrator be charged.

4. [40]

   I have already mentioned the very great prejudicial effect that evidence of sexual interference by an adult or even a teenager of a young child is likely to produce, particularly where the child is of the same sex. It is scarcely possible to overstate the emotional power of the label “paedophile”. It is inevitable that such evidence is very likely to engender the strongest feelings of disgust and disapprobation towards an accused and, on the other side, strong feelings of sympathy for the complainant. Obviously, this will make the task of dispassionately weighing the evidence of the complainant and of the accused (were he to give evidence) very much more difficult than if these strong emotions were not in play. One must accept that appropriate directions might ameliorate the prejudice to a degree but whether they would be likely to be sufficient to obviate real or substantial risk that the tendency evidence would be unfairly used against the accused, so that the probative value of the evidence will substantially outweigh its prejudicial effect, is a difficult question. The directions, in substance, will instruct the jury that they must not reason from the fact that the accused has a tendency, if they so find, to have sexual contact with young children where, by happenstance, he is able to do so, to his guilt of any particular charge and that the Crown must prove beyond a reasonable doubt, not only the charges said to be evidence of the tendency, but that he gave in to that tendency and committed the other alleged sexual acts. They must put aside any feelings of emotion, either towards the complainant or against the accused, and consider the evidence objectively and dispassionately. The tendency, if proved, is a relevant fact to be taken into account but the jury must carefully weigh up the evidence of the particular charge.

5. [41]

   Counts 4 to 7 (involving B) and 8 to 11 and 12 to 15 (involving A) were allegedly committed when the applicant was 15, 16, 17 or 18 years of age. It is appropriate, for present purposes to assess its probative weight as tendency evidence for relevance to the other alleged charges on the basis he was 16 years old. Even accepting (which I doubt) that this conduct would be significantly probative (vide s 97) of the charges allegedly committed when he was aged 19 (count 16), 20 (count 17), between 21 and 23 (count 18) and between 25 and 28 (counts 19 and 20), its probative weight, to my mind, is relatively slight when weighed against its prejudicial effect or, to use the language of s 101, does not substantially outweigh its prejudicial effect, even assuming that strong directions against misuse are given.

6. [42]

   Taking counts 1 to 3, 8 to 11 and 12 to 15 as a distinct category in light of the applicant’s age at the time they were allegedly committed, if a joint trial of all offences were to be conducted, it would be necessary to instruct the jury that the evidence on counts 1 to 3 could not be used to establish a tendency in proof of the other counts, although it could be used as relationship evidence. As to counts 8 to 11 and 12 to 15, the probative weight of one offence could be used, in my view, as establishing a tendency relevant to the other counts since, to my mind, its probative weight would substantially outweigh its prejudicial effect. The complicating feature is that it would be vital for the jury to understand that the evidence of counts 1 to 3, if accepted by them, could not be used as tendency in considering the other counts. Count 16 is in a separate class, since the applicant was about 19 years old at the time it was allegedly committed. In accordance with the view expressed above as to the significance of the applicant’s age at the time of the earlier offences, the evidence of those offences cannot be used as tendency evidence in support of this last offence since their prejudicial effect is not outweighed by their probative value. However (together with that of counts 1 to 3), that evidence would be admissible as relationship evidence in relation to count 16. Leaving aside difficulties that the jury might have in understanding and applying directions to this effect, the prejudicial effect of the evidence is very great and there is a substantial or, at least, real risk that, despite the directions, the jury will consciously or unconsciously use their conclusions as to counts 8 to 11 and 12 to 15 as tendency rather than relationship evidence or, assuming they find count 16 proved, wrongly use that finding in considering the earlier counts. It cannot be assumed that the jury will consider the counts in numerical or chronological order. It follows, as it seems to me, that there must be a separate trial of counts 1 to 3, counts 8 to 11 and counts 12 to 15 on the one hand and count 16 on the other. Alternatively, there could be a trial of all the counts involving offences against A on the basis that the evidence of the sexual conduct was relationship or context evidence and not tendency evidence.

7. [43]

   So far as the counts involving B are concerned (4 to 7 and 18), the evidence of the offences should not be used as tendency evidence given the disparity in the ages of the applicant on each occasion giving rise to the counts. Although the evidence of counts 4 to 7 is relevant as relationship evidence in respect of count 18, for the same reasons as concern the charges involving A, the evidence proving count 18 is extremely prejudicial; it has slight probative weight in respect of the other counts and therefore cannot be used as tendency evidence in proof of them. The risk of prejudice, to my mind, is so great that despite appropriate directions, counts 4 to 7 must be tried separately to count 18. Otherwise, again, the charges could be tried together if the evidence were to be available only as relationship or context evidence.

8. [44]

   The question which then arises is whether there should be a joint trial of counts 4 to 7 with counts 8 to 11 and 12 to 15, which are alleged to have occurred when the applicant was about 16 years of age. In this event, the tendency alleged would be to the effect that, as a 16 year old, the applicant had a propensity to engage in “consensual” sexual activity with prepubescent children of either sex. If counts 1 to 3 were to be tried with these counts (as I have already said, I would permit a joint trial of those counts with counts 8 to 11 and 12 to 15), the complicating feature would be that the evidence of the earlier counts would be inadmissible either as relationship or tendency evidence in respect of counts 4 to 7. It is highly prejudicial and I do not think that directions would be sufficient to ensure it would not be unfairly used. Accordingly, I would separate the trials of counts 1 to 3 on the one hand and 4 to 7, 8 to 11 and 12 to 15 on the other.

9. [45]

   That leaves counts 17 to 20, all of which were allegedly committed when the applicant was an adult but involving three complainants, of whom two are female and one male. C and D were about 5 years old at the time, whilst B was 10. In respect of the offences involving C and D, it seems to me that the probative worth of the evidence concerning them does substantially outweigh its prejudicial effect. This is not so clear so far as the offence against B is concerned but, on balance, I think the fact that she was prepubescent and the applicant was 21, 22, or 23 are sufficient, with the surrounding circumstances, to give the evidence of this offence sufficient probative value in respect of the other alleged offences as to substantially outweigh its prejudicial effect. I would not order separate trials of these offences, subject to resolving the issue of concoction or contamination, which arises because counts 17 and 18 concern C and B, who are sisters.

Concoction and contamination

1. [46]

   In AE v R [2008] NSWCCA 52 the Court (Bell JA, R S Hulme, Latham JJ) said –

2. [47]

   In BP v R; R v BP [2010] NSWCCA 303 Hodgson JA (Price and Fullerton JJ agreeing) said –

3. [48]

   In DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758; 215 A Crim R 349 a five judge Bench (Bathurst CJ, Allsop P, Whealy JA, McClellan CJ at CL and McCallum J) was convened to consider the application of s 98, which deals with coincidence evidence and, like s 97 concerning tendency evidence, requires the court to consider whether the evidence has “significant probative value”. The facts in contention comprised, in substance, the Crown case and were contended to provide, taken together, circumstantial proof of the appellants’ guilt.

4. [49]

   Whealy J said –

5. [50]

   Bathurst CJ, having noted (at [8]) that the judge must assess the possibility of the evidence being relevant and is not required to assess whether the evidence would affect the assessment of the probability of the existence of a fact in issue, that is, “engage in a fact-finding exercise involving an assessment of the reliability and credibility of the evidence”, (citing Shamouil), later stated –

6. [51]

   In R v XY [2013] NSWCCA 121; 84 NSWLR 363 a five judge Bench of this Court (Basten JA, Hoeben CJ at CL, Simpson, Blanch and Price JJ) was convened to reconsider Shamouil in light of the decision of the Victorian Court of Appeal in R v Dupas (No 3) [2009] VSCA 202; 26 VR 380 that it was wrong. The evidence in contention was that of two recorded telephone conversations between the complainant and the accused. All judges accepted that Shamouil stated the law in this State but how it should be applied was not agreed. Basten JA (with Simpson J, in the minority on the effect of Shamouil) said –

7. [52]

   In the result, Basten JA held (at [72]) that, since the jury could readily be directed as to the alternative inferences, if they drew the inference contended for by the prosecution, there would be no unfair prejudice. However, if the jury thought that the appellant was referring to another schoolgirl, no inference was available as to the truthfulness of the complainant’s evidence. Such a direction would be readily understood and any risk of unfair prejudice was fanciful.

8. [53]

   Hoeben CJ at CL agreed (at [86]) that, “when assessing the probative value of the prosecution evidence sought to be excluded, the Court should not consider its credibility, reliability or weight” and (at [87]) that Shamouil was not wrong and should be followed in this State. However, his Honour disagreed (at [88] et seq) with Basten JA and Simpson J (as her Honour then was, to whose judgment I refer below) as to the significance of the availability of available innocent inferences inconsistent with the prosecution case which, in his view, could properly be taken into account in assessing the probative value of the impugned evidence, as distinct from determining which should be or is most likely to be preferred. Accordingly, his Honour concluded (at [90]-[91]) that, because of the competing inferences, the probative weight of the evidence was outweighed by its prejudicial effect, so that there “is a significant risk that the jury would give the evidence more weight than it deserves and that the content of the evidence might ‘inflame the jury or divert the jurors from their task’”, quoting from Festa (supra) at [51]. This risk could not be adequately met by a direction from the trial judge.

9. [54]

   Simpson J (at [162]) adhered to her Honour’s concurrence with the judgment of Spigelman CJ in Shamouil and went on to say that the relevant predictive judgment that must be made by a trial judge in considering s 137 is “of what use the jury could rationally make of the evidence, in the context of the trial evidence in its complete form” (at [167]). There “is nothing obvious in the language of the statute that suggests that probative value, at the admission stage, is to be determined by reference to the weight to be assigned to the evidence”. Accordingly, “questions of [actual] credibility, reliability and weight play no part in the assessment of probative value with respect to s 137” (at [175]). (I would respectfully suggest, however, that it is difficult to see how it would significantly alter the meaning of s 137 if it were to read “the court must refuse to admit evidence … if the weight of the evidence is significantly less than the danger of unfair prejudice”.)

10. [55]

    Blanch J, in agreeing (at [194]) that Shamouil should be followed and that, in undertaking the task posed by s 137, cited DSJ (at [10], [78]) as authority for the view that whether evidence has significant probative value must be evaluated by reference to any real possibility of an alternate explanation inconsistent with the guilt of the accused, since it might “rob the evidence of its otherwise cogent capacity to prove the Crown’s case”. Because innocent interpretations of the accused’s words were open as a real possibility, the trial judge was correct to reject it. Price J agreed with Hoeben CJ at CL that the appeal should be dismissed, primarily for the reason that the requirement of s 5F of the Criminal Appeal Act that the exclusion of the evidence must “substantially weaken” the prosecution case was not satisfied “on the assumption that the jury accepted the evidence”, observing (at [215]) in this context that the “prosecution case is to be considered as a whole and questions of weight are irrelevant”, citing Shamouil. His Honour considered that it was “unnecessary to consider questions of competing explanations as the evidence viewed at its highest is weak” and added the comment –

11. [56]

    It seems to me, therefore, that what might, with respect, be called the “absolutist” approach of Basten JA and Simpson J did not prevail and that the position, as XY left it, is that, at least where the impugned evidence itself gives rise to competing inferences, one or more consistent with innocence, this was relevant to considering whether, and to what extent, the evidence has significant probative value in light of the issues in the trial and the other evidence relied on by the prosecution. This analysis assumes acceptance by the jury of the fact and content of the conversation. Another example might be: the prosecution evidence identifying the voice of the accused is inferential and the uncontested foundational facts left open the significant possibility that it was not his. It seems to me that this would be regarded as substantially reducing the probative value of the conversation and, likely, it was not admissible; otherwise, if the identification of the voice was simply the subject of competing evidence, one witness asserting the voice was that of the accused and another asserting that it was not. This latter example strikes me as rather more similar to the problem posed by the possibility of concoction or contamination than where the issue concerns inferences available from an uncontested conversation.

12. [57]

    In JG v R [2014] NSWCCA 138, a separate trial of sexual offences in respect of four complainants had been refused on the basis that the evidence of the two complainants was cross-admissible as tendency and coincidence evidence. Part of the coincidence evidence concerned items seized from the appellant's home to support the assertion of one of the complainants that the appellant showed him pornographic videos and magazines. As it happened, at the first trial, the jury was unable to agree. At the second trial, the defence submitted that the cross-admissibility question should be considered in light of the complainant’s cross-examination at the first trial and the appellant’s evidence in which, amongst other evidence, he gave an innocent explanation for his conduct in relation to the seized items. The appeal was dismissed. Simpson J (Hall and Schmidt JJ agreeing), holding that the reasoning in DSJ applied also to s 97, summarised the position as follows –

13. [58]

    Jones v R [2014] NSWCCA 280 concerned the significance of the possibility of concoction or contamination in the assessment of the probative value of tendency evidence sought to be used in the trial of the appellant for sexual offences against three complainants. The trial judge had concluded that the possibility was relevant only to issues of credibility and reliability and Shamouil precluded any consideration of it. Referring to DJS and XY, Bellew J (with whom Gleeson JA and Schmidt J agreed) concluded that the primary judge had overstated the effect of Shamouil and that his Honour should have taken into account, when assessing the probative value of the tendency evidence, “such competing inference(s) as may arise from the evidence”, without determining its weight or the likely acceptance or rejection of the evidence by the jury (at [87]-[88]). Bellew J went on to say –

14. [59]

    In DJW v R [2015] NSWCCA 164, which involved the proposed use of the evidence of six complainants as tendency evidence where the trial judge found there was a real risk of concoction and contamination in respect of two of the complainants but no such risk as to the rest, R A Hulme J (with whom Simpson JA and Bellew J agreed) concluded that the trial judge had correctly found that there was no real risk of concoction or contamination in respect of the four remaining complainants. Jones was, in substance, followed.

15. [60]

    In McIntosh v R [2015] NSWCCA 184 the Court revisited the problem in the context of the issue of concoction or contamination. Basten JA (with whom Hidden and Wilson JJ agreed) said –

16. [61]

    Counsel for the appellant, as it happened, had not objected to the tendency evidence on the ground of possible concoction, so that it was not an error for the trial judge not to have considered the matter. Accordingly, the discussion as to whether it was capable of being relevant was, with respect, obiter dicta. Furthermore, the provision under consideration was s 97, not s 101. This may explain why no reference was made to AE in this context, though it was cited (at [13]) with Ellis in connection with the need to apply the statutory test as distinct from that of the common law as expounded in Hoch. Nor was any reference made to BP, DSJ, JG, Jones or DJW (though these last two were then restricted). In the result, given the way the case was run, it was not an error for the trial judge not to consider the possibility of concoction and the ground of appeal that raised the question was rejected.

17. [62]

    It will be noted that Basten JA was considering the question posed by s 97 whether the proposed evidence has significant probative value. That question is not at all the same as that posed by s 101, requiring the evidence to be excluded unless its probative value substantially outweighs the prejudicial effect.

18. [63]

    I have not found it possible to reconcile BP, DSJ, JG, Jones and DJW with McIntosh, despite the fact that issues of contamination and concoction reflect directly on the credibility and reliability of the evidence of the complainants. The weight of authority favours the view, in my respectful opinion that, in considering the question under s 101 whether the probative value of the evidence substantially outweighs its prejudicial effect, the court is entitled to take into account any real possibility that the putative tendency may be explained by contamination or concoction and for this purpose, to consider the relevant evidence on the voir dire. Nor does there seem to be a basis for excluding from the scope of the enquiry other evidence that might weaken the capacity of the impugned evidence to rationally affect the assessment of the probability of the fact in issue. However, in light of the finding of the trial judge, which should be accepted for the reasons mentioned below, that there is no reasonable possibility of concoction, it is unnecessary to resolve this question.

19. [64]

    In this case, the finding of the trial judge that there was no evidence of concoction was not disputed, as such. It was submitted, relying on the passage set out above from AE, that the mere fact that complainants B and C were sisters in contact with each other at the time of their complaints, sufficed to establish the reasonable possibility of concoction. The trial judge found there was no evidence of a motive for concoction, the complainants denied doing so and, implicitly, that there was no reasonable possibility of concoction. It is not for this court to examine for itself the evidence upon which her Honour’s findings were based. Nor is it appropriate, by exploring the factual basis for a conclusion in another case, to compare the circumstances here to see whether the trial judge’s decision was open. A finding of fact from another case, however distinguished the judge, provides no basis for concluding that, on the facts here, her Honour’s conclusion was not open.

20. [65]

    It follows that the issue of concoction or contamination should be put aside in determining the extent of separation of the trials. Accordingly, I would not be prepared to separate the trials of counts 16 to 20.

Orders

1. [66]

   Given that I am in the minority, it is unnecessary to propose any orders.

Additional comments

1. [67]

   In accordance with the usual practice, Beech-Jones J has been good enough to provide me with a copy of his judgment in draft. It raises a number of matters upon which I wish to respectfully comment. The first of these concerns the identification of prejudice by counsel in submissions to the primary judge. Beech-Jones J (at [108]) points out that counsel relied on the matters that had been identified by Hoeben CJ at CL in Sokolowskyj which, his Honour said, had been taken out of context and inapposite. Of course, the passage italicised by Beech-Jones J was the situation that had been thrown up by the circumstances of the particular case, but this was a mere example of the general principle which had been invoked. It is correct that Hoeben CJ at CL had concluded that the proposed tendency evidence did not satisfy the requirements of s 97(1)(b) and that this was sufficient to dispose of the appeal (at [45]). However, his Honour went on to consider the possible application of s 101(2) in the event that there might be a doubt about this conclusion. In the course of that discussion, his Honour made the remarks at [48], characterised by Beech-Jones as inapposite in the present case. However, with respect, the Chief Judge was simply pointing out why the particular evidence might be prejudicial. In the present case, counsel submitted that the likely characterisation of the applicant as a sexual deviant, in brief, might lead the jury to be dismissive of his evidence and would be disinclined to give him the benefit of a reasonable doubt. This reasoning – which is simply a way of characterising the risks inherent in cases where the tendency evidence is likely to give rise to indignation or emotional disapprobation – is precisely the assessment that s 101 assumes may be present and requires to be considered. In the nature of the case, greater precision may not be possible and all that can be done is an assessment of the risk that the rational assessment of the evidence (including the tendency evidence) might not occur. The mere fact that, here, the tendency (in substance, to have opportunistic sexual contact with prepubescent children) happens to be the very tendency involved in the charges does not change the substance of the matter. That, of course, is highly relevant to its probative value but whether it has the capacity to overwhelm the dispassionate consideration of the other evidence is a different question. With respect, the mere fact that the tendency evidence here, if true, shows that the applicant has committed acts of the very kind alleged in the offences and thus is more likely to have committed the offence under consideration does not mean that submissions directed to the unfair prejudicial result that adducing such evidence might have is vague or uncertain. Of its nature, there is no bright line. The argument focused on whether there is a risk that the jury might give it, because of its character, greater weight than it fairly bore and otherwise affect the jury’s dispassionate consideration of the evidence as a whole. That the propensity established sexual deviancy is also obvious (indeed, essential since mere conventional sexual acts could scarcely be used to prove a sexually deviant act). Again, the mere fact that the deviancy was, as it happened, of the kind involved in the offences does not mean that counsel’s citation of Sokolowskyj was inapt: he was pointing to the inherent adverse character of evidence of that kind. In Shamouil, Spigelman CJ applied the test set out by McHugh J in Festa (at 609-10) that the relevant prejudice occurs “when the jury are likely to give the evidence more weight than it deserves or when the nature or contents of the evidence may influence the jury or divert the jurors from that task”. This was precisely what counsel endeavoured to establish. I am therefore unable to agree that no relevant form of prejudice was identified. There was no requirement to suggest any different tendency to that alleged which might prejudice the jury (though that happened to be what occurred in Sokolowsyj). Nor, with respect, do I agree that counsel had submitted merely that it was unfairly prejudicial to treat the tendency (appropriately) as evidence of the applicant’s tendency to commit the alleged offences, as is made clear by his submissions on this point set out above.

2. [68]

   Beech-Jones J has concluded –

3. [69]

   I apologise in advance if I am mistaken about this but it seems, with respect, that this suggests, in effect, that evidence of a tendency of the kind that an offender would have if he or she has committed the offences in issue does not, as a matter of principle, raise any problematic risk of unfair prejudice which cannot be overcome by directions. If so, this must be wrong. First, it is inconsistent with s 101(2) which assumes that tendency evidence may need to be excluded despite the possibility of corrective directions. Secondly, it amounts to, in effect, a refusal to consider the very questions posed by the sub-paragraph – namely what is the probative value of the evidence and what is the risk of unfair prejudice. Obviously enough, some tendency evidence will carry only a slight risk of distorting the jury’s consideration but other evidence is likely to have far more impact. In this latter class, allegations of paedophilia are particularly likely to engender strong feelings of indignation, disgust and disapprobation. One only needs a passing acquaintance with daily media reports to demonstrate this obvious truth, if it were not sufficiently obvious already. It cannot accord with principle that, merely because the tendency evidence is such that it establishes the accused has a propensity to do the kind of things that form part of the case alleged against him and hence is more likely than someone without that propensity to have committed them, to conclude that therefore directions will always suffice. With respect, it seems to me that Beech-Jones J’s analysis of this issue is at odds with the section itself, since it involves no consideration of the character and likely (inappropriate) prejudicial effect of the impugned evidence.

4. [70]

   It is obvious enough that, disagreement about principle aside, I respectfully differ from my colleagues essentially on three fundamental measures: first, the actual probative value of the evidence is less than their Honours have concluded is the case; secondly, the risk of unfair prejudice is very much more considerable than they assess it to be and; thirdly, the real ability of directions to avert an unfair trial is significantly less than their Honours implicitly calculate. To put it succinctly, the characterisation of the applicant as a paedophile since the age of 10, into his teens and then as an adult, is likely to overwhelm dispassionate consideration of the evidence, despite any amount of admonition by the trial judge. In my respectful view, the approach of Simpson JA and Beech-Jones J will, in large measure, render s 101(2) an empty letter. It goes even further down the road of what was described in Dupas at [226] as the undermining of “an important safeguard which the common law provided against an unfair trial and which the legislatures intended should be replicated in the Evidence statutes”.

5. [71]

   I should add another relevant consideration, which concerns the asymmetry of the various occasions that are said to establish the relevant tendency. This is a rare situation: mostly it will not matter in which order the jury considers the charges, but this is not so in this case. Thus, I think it must be obvious that the offences committed when the applicant was an adult could not be significantly probative of the likelihood that he committed similar offences when a child of 10 or 11 (or, for that matter, as a teenager). As it happens, the converse must also be true. I do not doubt that, if the only tendency evidence was that of his conduct as a child, it would not be significantly probative of his conduct as an adult. (Necessarily, its prejudicial effect would not be outweighed by its probative value if s 101(2) came into play.) Although it is not essential to this point, working back from his adult offences (if that is where the jury starts), that evidence, if it passed the hurdle of s 97, would not be sufficiently probative for the purposes of s 101(2), in respect of the teenage offences. Thus, we have the unusual situation that, if the jury started at one end of the chronology, the evidence would be inadmissible as tendency in respect of certainly the childhood offences and (at least, to my mind) the teenage offences. The apparent persuasiveness of what has been called the “pattern” depends in large part on it being a sequence moving from conduct whilst the applicant was young to that when he is older. But it cannot be so regarded, since no such assumption can be made as to the order in which the jury will approach the charges. The various episodes relied on as tendency cannot therefore be considered as a sequence. This must therefore significantly reduce, if it does not altogether destroy, the probative value of one set of charges in respect of one or more of the others. I appreciate that an answer might be to consider that the episodes have the capacity to be considered as a sequence. But that capacity is not far different in point of principle from the capacity for innocent inferences of the conversation in XY, though I think it is less capable of resolution.

6. [72]

   BEECH-JONES J: This is an application for leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW) from a judgment refusing an application to sever various sets of charges on an indictment containing 20 counts of sexual assault against children that was presented against the Applicant in the District Court. The relevant facts alleged in the Crown case are set out in the judgment of Adams J which I have read in draft. They need not be repeated.

7. [73]

   The principal basis for the application to sever the indictment was that the direct evidence against the applicant in respect of each set of counts was not admissible as tendency evidence in respect of the other sets. For the reasons that follow I consider that the application for leave to appeal should be granted but the appeal should be dismissed. I am not satisfied that any material error has been shown in the trial judge’s reasons for admitting the tendency evidence and dismissing the motion to sever the indictment.

8. [74]

   Before addressing the grounds of appeal it is necessary to note the following two matters of principle which I consider to be of critical significance to the application and then note certain matters by way of background to this application in addition to those noted by Adams J.

9. [75]

   First, in light of the submissions that were made in support of the application it is appropriate to note exactly what tendency evidence is. Sections 97 and 101 of the Evidence Act 1995 relevantly provide:

10. [76]

    In Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303 at [253] (“Elomar”) the Court (Bathurst CJ, Hoeben CJ at CL and Simpson J) stated that:

11. [77]

    Later in Elomar at [360] the Court explained:

12. [78]

    It is necessary to restate this because both before the trial judge and in this Court the applicant relied heavily on the following passage taken out of context from the judgment of Hoeben CJ at CL in Sokolowskyj v Regina [2014] NSWCCA 55 at [48] as identifying the prejudicial effect of the evidence sought to be led in this case:

13. [79]

    In Sokolowskyj the trial judge erroneously permitted the Crown to rely upon “tendency evidence” concerning the accused’s three prior convictions for exposing his penis to adult women in public places at his trial on a charge of indecently assaulting an eight year old child in a shopping centre parents’ room. Hoeben CJ at CL (with whom Adams and Hall JJ agreed) held that the tendency evidence did not have “substantive probative value” and was therefore inadmissible (Evidence Act; s 97(1)(b)); at [44]-[45]). His Honour found that there was “a large qualitative distinction” between the conduct the subject of the tendency evidence and the conduct the subject of the charge (at [43]). His Honour also found that the “flaw in the Crown case in support of the admission of the tendency evidence was that it failed to have regard to the fact that the evidence only had probative value if it increased the probability that the appellant committed the offence of indecently assaulting the complainant” (at [44]). His Honour’s conclusions in respect of the prejudicial effect of the tendency evidence were only expressed if “there was any doubt” concerning s 97(1) (at [46]).

14. [80]

    It follows that the observations set out in the passage from Sokolowskyj extracted above at [78] must be considered in the context of the lack of any connection between the form of sexual deviancy pointed to by the supposed tendency evidence and the conduct the subject of the charge in that case. A risk that the jury would or might reason to the effect that, because the appellant in Sokolowskyj was the “sort” of person who would expose himself to adult women in a public place, he was more likely to have sexually assaulted a child was truly a form of prejudice. Similarly in such a case there was an appreciable risk that the jury “would be so emotionally affected by the evidence” of his commission of what in substance were unrelated offences that they would disregard any account in the police interview and “might be disinclined to give the appellant the benefit of any reasonable doubt”.

15. [81]

    However it follows from the above statement in Elomar that in some cases, although not Sokolowskyj, it is not improper and thus not prejudicial for a jury to reason that if the accused is a particular “sort of person”, namely a person who has demonstrated the alleged tendency, then he is (more) likely to have committed the offence alleged against him. To the contrary, that is the very reasoning that the tendency evidence supports and is the very basis upon which it is admitted. Further, in most such cases, provided that s 97(1)(b) is satisfied, it is to be expected that the risk that the jury would be so “emotionally affected” by the evidence of the commission of other offences such that they would disregard the accused’s version and not afford the accused the benefit of any reasonable doubt, can be accommodated by the giving of appropriate directions to the jury.

16. [82]

    Second, an assessment of whether the evidence sought to be adduced has “significant probative value” is not confined to the evidence itself but is to be made having regard to all the evidence sought to be adduced by the tendering party (in this case, the Crown). In this case that involves a consideration of the continuous nature of the alleged conduct of the applicant, over approximately 15 years, said to give rise to the alleged tendency.

17. [83]

    The relevant statutory provisions concerning the admission of tendency evidence are set out above. The basal steps involved in determining whether to admit evidence as tendency evidence is, first, to determine whether it is relevant evidence under s 55, then to determine whether it satisfies s 97(1) and, in particular, has “significant probative value”, and finally to consider whether it is excluded by s 101(2) (or s 137). In DSJ v R; NS v R [2012] NSWCCA 9; 259 FLR 262 at [72] (“DSJ No 1”) Whealy JA (with whom Bathurst CJ at [1], Allsop P at [11], McClellan CJ at CL at [135] and McCallum J at [136] agreed) referred to the approach adopted in determining whether tendency evidence has significant probative value by Simpson J in R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 (“Fletcher”) at [33]-[35] and stated as follows (at [72]):

18. [84]

    Although DSJ No 1 concerned coincidence evidence, this statement is equally applicable to tendency evidence.

19. [85]

    The reference in the above passage from DSJ No 1 to the examination of the evidence by reference to “other evidence adduced or to be adduced by the tendering party” is reflected in the words of s 97(1)(b) and is of particular significance in this case. One matter that arose during the hearing of this application concerned the evidentiary significance of the fact that the applicant was only aged 11 to 13 years at the time of the alleged commission of counts 1 to 3. Although a submission was made to the trial judge that the necessity to prove that the applicant was not doli incapax at the time he allegedly committed the offences the subject of counts 1 to 3 was a matter that warranted a severing of at least those counts (see [122]), it was not contended before the sentencing judge that the age of the applicant at the time of the alleged commission of counts 1 to 3 was a matter that affected an assessment of the similarities in the allegations or otherwise denied the evidence significant probative value. However the written submissions of the applicant in this Court in relation to ground 1 of the application contended as follows:

20. [86]

    Further, as Adams J has found that the trial judge erred, his Honour has embarked upon a reconsideration of whether the evidence should be admitted and concluded that the direct evidence the subject of counts 1 to 3 does not have significant probative value in relation to the other counts (at [39]).

21. [87]

    I respectfully disagree. Considered in isolation there may be serious reason to doubt that evidence of such conduct by an 11 to 13 year old is capable of being “of importance or of consequence in establishing” that the applicant committed, say, counts 19 and 20 when he was aged between 25 and 28 years. However the evidence of counts 1 to 3 is not to be considered in isolation but is to be considered with the other evidence to be adduced. That evidence is capable of demonstrating that the applicant engaged in the relevant form of conduct on nine occasions being when he was aged about ten years (the uncharged act), aged between 11 and 13 (counts 1 to 3), aged between 15 and 16 years (counts 4 to 7), aged between 16 and 18 years (counts 8 to 11 and 12 to 15), aged 19 years (count 16), aged 20 years (count 17), aged between 21 and 23 years (count 18) and then aged between 25 and 28 years (counts 19 and 20). Thus, for example, in relation to counts 19 and 20 the direct evidence in support of counts 1 to 3 is part of a body of evidence that is capable of showing that the applicant engaged in the relevant form of conduct on eight occasions from when he was aged 10 until he was aged between 21 and 23 years. In my view that evidence clearly satisfies s 97(1)(b). The same reasoning applies to the other counts.

Background

1. [88]

   A summary of the Crown case, the submissions made by Counsel for the applicant to the trial judge and her Honour’s judgment are set out in the judgment of Adams J at [7] to [13]. Three further matters should be noted.

2. [89]

   First, the ruling given by the trial judge was based on the statements of the complainants as well as some supplementary oral evidence from complainants B and C in relation to the suggestion of concoction or contamination. However, as noted by Adams J, as events have transpired the complainants have all given evidence in a trial that was aborted. Nevertheless it was not suggested that the evidentiary basis upon which the trial judge determined the admissibility of the tendency evidence was materially affected by the evidence adduced at the aborted trial. All the parties to this application proceeded on the basis of the accuracy of the summary set out in the judgment of Adams J in [7].

3. [90]

   Second, leaving aside one aspect of ground 1, the fundamental complaint on this application concerns the trial judge’s determination to admit the tendency evidence sought to be led by the Crown. In DSJ v R; NS v R [2014] NSWCCA 77 at [6] to [7], Gleeson JA (with whom Hidden and Rothman JJ agreed) observed:

4. [91]

   Third, it is necessary to identify the alleged tendency that the Crown seeks to prove the relevant accused possessed. Unless that tendency is kept in view it is difficult to apply the tests posed by s 97 and s 101. In this case the tendency identified by the Crown in its tendency notice dated 11 May 2015 was as follows:

5. [92]

   A review of the transcript of the argument of the voir dire reveals that the parties proceeded on the basis of this formulation of the relevant tendency. In its written submissions on the appeal, the Crown referred to the applicant having a “clear tendency to engage the complainants in a particular way, namely not by threats, force or fear but by expressly seeking their consent and physical co-operation”. At least at the point of considering whether leave to appeal should be granted, attempts to reformulate the tendency should be rejected, although this submission points to one of the relevant similarities between the various incidents.

Ground 4: Alleged error in finding that the allegations in relation to the various complaints were similar

1. [93]

   Ground 4 of the application for leave to appeal contends that her Honour erred in finding that the allegations in relation to the various complainants were “similar”.

2. [94]

   It is appropriate to address this ground first as it is directed towards the trial judge’s conclusion that s 97(1)(b) was satisfied which is a logically anterior step to any consideration of whether the evidence was unfairly prejudicial as suggested by grounds 2 and 3.

3. [95]

   In his written submissions the applicant accepted that the trial judge applied the correct test in determining whether the proposed evidence had “significant probative value” within the meaning of s 97 (1) of the Act. It was also accepted that her Honour correctly approached her consideration of the issue of whether or not the evidence was capable of showing that the alleged acts were similar. Nevertheless, the applicant submitted that her Honour erred in her ultimate finding that the allegations were “similar”.

4. [96]

   The principal difficulty with this ground is that her Honour did not find that the allegations were “similar”. The closest the trial judge came to making a finding to that effect was, after reviewing the circumstances of each of the alleged offences in detail, her Honour stated as follows:

5. [97]

   Later in the judgment her Honour applied s 97(1)(b) in a manner consistent with Fletcher (as explained by DSJ No 1) before concluding that the evidence “will have significant value in the jury’s deliberations”. Thus her Honour did not find that the allegations were “similar”. Instead her Honour had regard to the similarities between the allegations as part of the assessment of whether the test in s 97(1)(b) was made out. This approach was entirely orthodox (see R v PWD [2010] NSWCCA 209; 205 A Crim R 75; “PWD”).

6. [98]

   Nevertheless I would not dismiss this ground on the basis that it is a challenge to a finding that was not made but instead treat it as a challenge to her Honour’s ultimate finding that the evidence satisfied s 97(1)(b). Such a finding can only be challenged in this application on the grounds stated in House v R [1936] HCA 40; 55 CLR 499 at 504 to 505 (DAO v R [2011] NSWCCA 63; 278 ALR 765, at [70] per Spigelman CJ; at [81] per Allsop P; at [157] and [171] per Simpson J; at [210] per Kirby J and [211] per Schmidt J). Given that it was accepted that the correct test was applied and the submissions do not point to any relevant matter that was omitted or irrelevant matter that was taken into account, other than the issue raised by ground 1, this ground reduces to a contention that her Honour’s finding that s 97(1)(b) was satisfied was “unreasonable” because the allegations were too disparate in nature for them to have significant probative value in relation to any of the counts.

7. [99]

   The written submissions in support of this ground contended that the acts commenced with “touching” and progressed and that the type of touching, being under the complainant’s clothes, was “commonplace” as was the occurrence of the events in the applicant’s home. They further contended that the “striking feature” about these allegations is the “degree of dissimilarity” between them in that two of the complainants were male, two were female, there is only one allegation of sexual penetration namely the alleged offence involving B, only one of the complainants is alleged to have a cognitive impairment, namely D, and in the case of B there was evidence that she was later in a consensual relationship with the applicant when she was 16. The last of these matters is irrelevant to the present issue which is directed to the similarities between the conduct the subject of the offending. The applicant’s relationship with B took place well after the time he is alleged to have committed offences against her. Otherwise none of the other matters raised warrants any interference with the trial judge’s assessment that the similarities in the allegations supported a determination that the evidence had significant probative value. Some features may be “commonplace” with allegations of this kind but that does not deny them some significance to a determination of whether s 97(1) was satisfied.

8. [100]

   In oral submissions Senior Counsel for the applicant, Mr Stratton SC, further contended that there was no “pattern” to the offending and that it was not correct that the offences took place in the “complainant’s house” in that counts 1 to 3 took place in the complainant’s home, count 16 occurred in bushland and counts 4 to 7, 8 to 11, and 18 to 20 occurred at a place where they were both living. However this overlooks the significance that her Honour attributed to the location of the alleged offending, namely that it was indicative of the applicant having occupied some “wider position of trust” vis-à-vis the complainants. As noted by the Crown “in all cases the [alleged] conduct commenced when the applicant was a guest [at the relevant] house at the invitation of the complainant’s parents”.

9. [101]

   The effect of the trial judge’s assessment was that the evidence sought to be led was capable of demonstrating “a pattern of behaviour, modus operandi, system or pattern and common threads ... in the [applicant’s] conduct” (PWD at [35] per Beazley P). The allegations had a number of common or similar features, namely the young age at which some of the complainants were first abused and then abused later when they were older, the complainants were each known to the applicant, the above occurred in a context where he was trusted to exercise some form of supervision of them, and he did not force himself on the complainants but sought their consent or made a request. True it is that not all features were present with all complainants but that was not necessary.

10. [102]

    Subject to considering the remaining grounds of appeal, no basis has been demonstrated for interfering with the trial judge’s assessment as to the existence of similarities between the conduct the subject of the allegations or the significant probative value of the evidence in support of them.

11. [103]

    I would reject ground 4 of the appeal.

Grounds 2 and 3: Application of Section 101 of the Evidence Act

1. [104]

   Ground 2 of the application contends that the trial judge did not apply the correct test for the admission of tendency evidence. Ground 3 contends that the trial judge incorrectly found that there was (in effect) no danger of unfair prejudice. The submissions in support of ground 2 confirm that the relevant test that was said not to have been applied was that set out in s 101(2) of the Evidence Act 1995. These grounds can be dealt with together.

2. [105]

   Although it is set out in the judgment of Adams J, it is necessary to repeat the submission on prejudice that was made on behalf of the applicant to the trial judge:

3. [106]

   It can be seen that this submission reflected the passage from Sokolowskyj extracted above. The trial judge addressed this contention as follows:

4. [107]

   The first type of prejudice that is identified in the extract at [105] above is that the jury might reason that “they couldn’t all be lying, they couldn’t all be making it up” which is said to be “impermissible reasoning”. Although it is not entirely clear it appears that her Honour accepted that contention as identifying a possible form of prejudice but stated that it could be overcome by a direction. If anything this was only an error in the applicant’s favour. If the jury were to have regard to the number of complainants giving evidence of the occurrence of similar events over a number of years that would not per se be impermissible. The jury would be entitled to give weight to that matter as part of the assessment of whether the events said to demonstrate the tendency occurred. This is reflected in the standard direction for tendency evidence in the bench book which contemplates the jury being instructed that in making a finding that a particular act said to be evidence of the alleged tendency occurred the jury should “not consider each of the acts in isolation but consider all the evidence and ask yourself whether you are satisfied that a particular act or acts relied upon actually took place”.

5. [108]

   Otherwise the forms of prejudice that were identified to the trial judge in the extract set out above at [105] were directly reliant on the passage from Sokolowskyj at [48] discussed above at [78] to [81]. For the reasons there stated that passage was taken out of context and was inapposite. In those circumstances the trial judge was correct to observe that there was a difficulty in identifying the prejudicial effect of the tendency evidence sought to be adduced. No relevant form of prejudice was in fact identified. In substance the effect of the submission made to her Honour was that it would be prejudicial to treat evidence tendered to demonstrate the applicant had a particular tendency as tendency evidence. In fact the only relevant form of prejudice that pertained was the risk of the jury reasoning in the impermissible manner that is always present with such evidence and which the standard directions warn against.

6. [109]

   The written submissions in support of these grounds contend that the passage from the trial judge’s reasons set out at [106] reveals an error of the kind identified by Hoeben CJ at CL in the following passage from Sokolowskyj at [52]:

7. [110]

   I do not accept this submission. Her Honour sought to engage with what was submitted to be the prejudicial effect of the evidence but struggled to do so because it was based on an appeal to a passage in Sokolowskyj that was taken out of context. In this case, and unlike Sokolowskyzj, there was no particular prejudice identified or apparent. In those circumstances there is no error in the approach taken by her Honour of dealing with the general risk of prejudice that arises from the adducing of tendency evidence by pointing to the directions that will be given to the jury. The position was explained by Latham J (with whom Giles JA and Rothman J agreed) in R v SK; SK v R [2011] NSWCCA 292 at [34]:

8. [111]

   It follows that I would reject grounds 3 and 4.

Ground 5: Reasonable possibility of concoction

1. [112]

   Ground 5 of the application contends that her Honour erred in determining whether or not there was a reasonable possibility of concoction. This ground relates to the evidence of B and C, who are sisters. As there is some controversy as to whether a suggestion of concoction should be dealt with at the point of considering s 97(1), s 101(2) or at all, I have considered this ground separately.

2. [113]

   The applicant’s written submissions to the trial judge contended that there was “a real possibility of contamination or concoction involving” B and C’s evidence although they did not state whether that matter should be considered at the point of considering s 97(1)(b) or s 101(2). On the voir dire and after B and C had given oral evidence, counsel for the applicant submitted that it was for the “prosecution to prove [that there is] no reasonable possibility of concoction or contamination”. This appears to be a reference to the test stated in Hoch v The Queen [1988] HCA 50; 165 CLR 292 (“Hoch”). Counsel submitted that the events surrounding the creation of their statements meant they had the opportunity to collude (although they denied having done so). Ultimately Counsel submitted that the Crown had not “negated … a reasonable possibility” of concoction and contamination.

3. [114]

   Her Honour addressed this contention at length in the following passage:

4. [115]

   In the written submissions in support of the appeal it was accepted that the “real possibility” test stated in Hoch had no application in respect of the admission of tendency evidence under the Evidence Act (see R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [95]). However it was nevertheless submitted that her Honour erred in finding that “there was no evidence of concoction, rather than considering whether or not there was a reasonable possibility of concoction”.

5. [116]

   This contention seeks to agitate an underlying issue about the relevance, if any, of a suggestion of concoction or contamination between witnesses to the admission of tendency evidence under s 97(1)(b) and its possible rejection under s 101(2). On one view suggestions of concoction raise matters that are relevant to credibility and reliability and as such are matters solely for the jury and not the trial judge (R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228) with the result that “… the suggestion that the possibility of concoction is a factor which must be taken into account in determining whether particular evidence has significant probative value should not be accepted” (McIntosh v R [2015] NSWCCA 184 at [47] per Basten JA with whom Hidden and Wilson JJ agreed). However that approach sits uneasily with the observation of this Court in AE v The Queen [2008] NSWCCA 52 at [44] that “it was not an error to consider the possibility of joint concoction in assessing the probative value of the evidence” and that “to the extent that his Honour did so, it was an error to find that there was no possibility of joint concoction”. Until the issue of the relevance of the possibility of concoction is finally resolved, these statements may perhaps be reconciled by accepting that the possibility of concoction is a matter that may, as opposed to must, be taken into account in considering s 97(1)(b).

6. [117]

   In relation to s 101(2) in BJS v Regina [2011] NSWCCA 239 at [24] Basten JA (with whom R.S. Hulme and Hall JJ agreed) stated that “[n]o doubt the reasonable possibility of concoction is a factor which must be taken into account in assessing the ‘prejudicial effect’ of the evidence, but a more nuanced approach is now required under s 101(2), dependent on the circumstances of the particular case (cf Ellis at [96])”.

7. [118]

   In Jones v R [2014] NSWCCA 280 (“Jones”) at [88] to [90], Bellew J (with whom Gleeson JA and Schmidt J agreed) reviewed the authorities dealing with concoction and stated (at [90]):

8. [119]

   This aspect of Jones was followed in DJW v R [2015] NSWCCA 164 by R.A. Hulme J (with whom Simpson and Bellew JJ agreed). His Honour acted on the basis that he was “prepared to assume that the issue of possible concoction or contamination in the present case could give rise to a competing inference in the assessment of whether there was significant probative value” (at [44]) but held that it was open to the trial judge in that case to find that that there was not “any real possibility of concoction or contamination” (at [46]).

9. [120]

   It is not necessary to attempt to resolve the effect of these authorities (or the further authorities referred to in that part of the judgment of Adams J that deal with this topic). The opening part of the extract in [114] appears to misstate the approach to this issue by invoking Hoch but that was only an error favourable to the applicant and it was based on the erroneous submission of his counsel. Further, the findings of the trial judge in that extract amount to an acceptance of the opportunity for concoction but otherwise constitute a finding that there is “no evidence” of concoction. In Jones, such a finding was sufficient to avoid any suggestion that a competing inference of concoction should have been considered in determining whether the proposed evidence had significant probative value. There is no authority that this Court was referred to, including AE or BJS, for the proposition that a trial judge is obliged to consider whether the mere existence of an opportunity for concoction is relevant to determining whether proposed tendency evidence satisfies s 97(1)(b) or should be excluded under s 101(2).

10. [121]

    I would reject ground 5.

Ground 1: The issue of Doli Incapax was not taken into account

1. [122]

   Ground 1 of the Application contends that the trial judge erred because the “issue of doli incapax was not taken into account”.

2. [123]

   As noted the Applicant was between 11 and 13 years old at the time that the offences the subject of counts 1 to 3 were allegedly committed. It follows that a rebuttable presumption of doli incapax arises, namely that the applicant was incapable of committing the offences the subject of those counts because he lacked an understanding of the difference between right and wrong. As a consequence, in relation to those counts not only must the Crown prove beyond reasonable doubt that the applicant did the acts charged with the necessary intent, the Crown must also prove that the applicant knew that conduct was seriously wrong, as distinct from an act of mere naughtiness or mischief (BP v Regina, SW v Regina [2006] NSWCCA 172).

3. [124]

   In submissions before the trial judge counsel for the applicant contended:

4. [125]

   Her Honour addressed this argument as follows:

5. [126]

   Both the submission to the trial judge and her Honour’s response are difficult to grapple with. As best as I can determine the point being made to her Honour was that there was some form of unfairness in the combined trial of 20 counts where three of them had this extra element. It was contended that having an additional element for one set of counts would make the jury’s task complex. Her Honour’s response appears to have been that there was no such unfairness because the Crown’s case to rebut the presumption was solely confined to the applicant’s (alleged) conduct in relation to only counts 1 to 3, namely “his request for secrecy, the attempt at privacy and the stopping of actions when there was perhaps an adult drawing near” (see BP v Regina, SW v Regina [2006] NSWCCA 172 at [29] to [30]). Implicit in her Honour’s approach was that the Crown case (and the jury’s reasoning) would be confined in that regard by appropriate direction, if necessary. Further her Honour expressly did not address whether the direct evidence in support of counts 1 to 3 would be sufficient to rebut the presumption but instead would consider that at the “end of the Crown case”. No error is apparent in this approach.

6. [127]

   The written submissions in support of these grounds contended that a trial of counts 1 to 3 with the remaining counts would occasion unfairness to the applicant because with those counts he would be “entitled not to give evidence in these matters and require the Crown to rebut the presumption in its case”, whereas “if all the matters are heard together he may be forced to give evidence about the matters generally”. This contention was not raised before the trial judge and thus no error arises from her Honour’s failure to address it. In any event, as noted by the Crown, the fact that the evidence relied upon to rebut the presumption is solely the evidence of the very events that give rise to counts 1 to 3 “significantly weakens the applicant's argument that tactically he would have to meet a different case on that issue compared with the rest of the case”. In particular, it is difficult to see how any decision by the applicant to give evidence in his own case is affected by the further element the Crown must prove in relation to counts 1 to 3. If the applicant chooses to give evidence denying these events he would, in doing so, deny the evidence said by the Crown to rebut the presumption.

7. [128]

   The other matter raised in the written submissions in support of this ground is that the jury might use evidence that the applicant committed sexual offences when he was an adult (specifically, charges 16 to 20) to reason backwards that he may have had an understanding when he was under 14 that his actions were wrong. No complaint of prejudice to this effect was made to the trial judge. In my view, the risk of a jury reasoning in this manner is very slight but even so it can be addressed by an appropriate direction.

8. [129]

   I would reject ground 1.

Conclusion

1. [130]

   No material error in the trial judge’s judgment having been demonstrated, I would grant leave to appeal but dismiss the appeal.

2. [131]

   The orders that I propose are that leave to appeal be granted but the appeal be dismissed.