BRC v R

1. [1]

   SIMPSON AJA: On 30 March 2017 the applicant was arraigned in the District Court on an indictment that contained 12 counts, each charging an offence against the Crimes Act 1900 (NSW) as it stood at the time of the events giving rise to the charges. Since those dates, relevant provisions of the Crimes Act have undergone significant amendment. The references that follow are to the Crimes Act provisions at the relevant times.

2. [2]

   The first count on the indictment was of assault (s 61). The remainder were 8 counts of sexual intercourse with a child under the age of 10 years (s 66A), two counts of committing an act of indecency on a child under the age 10 years (s 61O(2)), and one count of indecent assault (s 61M(2)). The applicant entered a plea of guilty to count 8, (a count of committing an act of indecency with a child under the age of 10), and pleas of not guilty to all other counts. On 11 April 2017 after a jury trial, the applicant was acquitted of counts 1 and 2 (assault and sexual intercourse with a child under 10) and convicted on all other counts.

3. [3]

   Section 61 of the Crimes Act prescribed (and prescribes – this provision has not been affected by the amendments referred to above) a maximum penalty of imprisonment for 2 years. Section 66A prescribed a maximum penalty of penal servitude for 20 years; s 61O(2) prescribed a maximum penalty of imprisonment for 7 years, and s 61M(2) prescribed a maximum penalty of imprisonment for 10 years.

4. [4]

   On 13 February 2018 the applicant was sentenced to an aggregate term of imprisonment of 12 years, commencing on 17 September 2015, with a non-parole period of 9 years.

5. [5]

   The applicant now seeks to appeal against the convictions. To do so he needs and seeks an extension of time. He has not sought leave to appeal against the sentence imposed. The Crown was content for the application for extension of time to be dealt with by reference to the substantive merits of the appeal, and expressed no opposition.

6. [6]

   The applicant pleads a single ground of appeal, concerning directions given to the jury in two particular respects. Specifically, the applicant complains of asserted error in the summing up with respect to tendency evidence that had been admitted in the trial. Since the ground of appeal he identifies does not involve “a question of law alone” he requires leave to appeal: Criminal Appeal Act 1912 (NSW), s5(1)(a) and (b).

7. [7]

   Given the relatively narrow scope of the appeal, it is not necessary to expound in great detail on the facts and circumstances relevant to the offences. The conduct the subject of the counts on the indictment was alleged to have been committed over a period commencing in August 1992 and ending in May 1999. Four complainants, to whom I will refer as Complainants 1, 2, 3 and 4, made allegations against the applicant of sexual offences.

8. [8]

   In the indictment it was alleged that the conduct the subject of counts 1 and 2 was committed between 2 August 1992 and 15 April 1994, against Complainant 1 (a male) who was then 3 or 4 years of age. The conduct the subject of counts 3, 4 and 5 was alleged to have been committed between 2 August 1998 and 22 May 1999, also against Complainant 1, who was then 9 years of age. The conduct the subject of count 6 was alleged to have been committed between 12 May 1997 and 24 February 1998 against Complainant 2 (a female) who was then 9 years of age. The conduct the subject of count 7 was alleged to have been committed between the same dates (12 May 1997 and 24 February 1998) against Complainant 3 (a female) who was then 7 or 8 years of age. The conduct the subject of counts 8, 9, 10, 11 and 12 was alleged to have been committed between 19 May 1997 and 25 May 1999 against Complainant 4 (a male), who was then aged 6, 7 or 8.

9. [9]

   The Crown gave notice under s 97 and s 98 of the Evidence Act 1995 (NSW) that it proposed to rely on tendency evidence (s 97) and coincidence evidence (s 98). What the Crown proposed to do was to rely, as tendency evidence, on the evidence in support of proof of each count on the indictment (with the exception of count 1 which was the count of assault) as evidence in support of proof of each other count. So far as can be ascertained from the appeal, the s 98 notice was not pursued and need no longer be considered.

10. [10]

    Section 97(1) of the Evidence Act provides:

11. [11]

    Section 101 imposes a further restriction on the admission of tendency evidence in criminal proceedings. Section 101(2) provides:

12. [12]

    An application was made on the applicant’s behalf for a separate trial of the charges relating to each complainant. The outcome of that application depended on whether the evidence on which the Crown proposed to rely as tendency evidence was properly admissible for that purpose. That in turn depended on the application of the tests stated in s 97(1)(a) and (b) of the Evidence Act (that appropriate notice has been given, and that the evidence is assessed to have significant probative value) and s 101(2) (that the probative value of the tendency evidence substantially outweighs any prejudicial effect it may have on the defendant).

13. [13]

    There was no issue that appropriate notice had been given. The Tendency Evidence Notice was not before this Court but the tendency the Crown sought to prove was identified in the judgment on the application for separate trials. The trial judge held, for the purposes of s 97, that the evidence had significant probative value, and was not excluded by s 101(2), and was therefore admissible. Accordingly, he refused the application for separate trials: R v BRC (District Court (NSW), 30 March 2017, unrep). There is no challenge to that ruling.

14. [14]

    The tendency evidence on which the Crown sought to rely, and which the trial judge admitted, was solely the evidence relating to the conduct charged (except for the conduct the subject of count 1). That is, the Crown was permitted to rely on the evidence of each act the subject of a charge (other than the act said to constitute count 1) in proof of each other act the subject of a charge. Those acts cumulatively, the Crown contended, established that the applicant had:

15. [15]

    The particular state of mind, on the Crown’s contention, was a sexual interest in children up to ten years of age. The conduct, on the Crown’s contention, was acting on that sexual interest. The Crown particularised the tendencies it alleged as:

16. [16]

    Thus, (by way of example) the Crown relied on the evidence of Complainant 1 in two ways: first, in direct proof of each of counts 1 to 5 (of which he was the alleged victim): and second, in indirect proof of all remaining counts. The Crown case was that the evidence established each of the two tendencies for which it contended, from which it could be concluded that the applicant committed the acts the subject of the charges. On that basis, if the jury were in any doubt about accepting the evidence of any complainant, or the evidence on any count, it would be entitled, subject to the principles governing the use of tendency evidence, to have regard to the evidence in support of the other counts: see Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [40].

17. [17]

    In further proof of the offences, the Crown also adduced evidence of two other acts alleged to have been committed by the applicant, neither of which was the subject of charge. These were:

18. [18]

    In relation to each count, there were therefore two categories of evidence of conduct on occasions other than the occasion of the conduct giving rise to the specific charge on which the Crown relied. The first category was evidence of the conduct said to have constituted each other offence (other than the assault the subject of count 1). That evidence was tendered and admitted as tendency evidence under s 97(1), and its admissibility, and the use which could be made of it, were subject to the tests applicable under that section and s 101(2). The second category was the category referred to as “context evidence” or “relationship evidence”; its admissibility and the use that could be made of it were subject to different principles (explained below). The salient difference between tendency evidence and context evidence lies in the purpose for which the evidence is tendered. That purpose dictates the directions required to be given to a jury. Those directions will be considered shortly. No ground of appeal challenges the admission of either category of evidence. No ground of appeal complains of error in the directions given in relation to the context evidence. The proposed appeal is solely related to the directions given in relation to the tendency evidence.

19. [19]

    On 6 April 2017 (one week after the trial had commenced) the trial judge circulated to the parties, in writing, a draft of the summing up he proposed to give to the jury, and invited comments. Both parties responded, making positive suggestions for changes or additions.

20. [20]

    In relation to tendency evidence the draft contained the following:

21. [21]

    With respect to context evidence, the draft contained the following:

22. [22]

    With two exceptions, neither party made any comment on any of these paragraphs. In relation to the draft tendency evidence direction, the Crown proposed the addition of a sentence in each of paragraphs 46 and 51(b) making clear that the Crown relied on the acts constituting the offence the subject of count 8 (to which the applicant had pleaded guilty) and the evidence in support of that count, and proposed (in relation to the context evidence directions) that paragraph 59 be removed as not relevant to the issues in the trial. Counsel for the applicant, although making some proposals, commented on neither the tendency evidence direction nor the context evidence direction.

23. [23]

    Having considered the proposed changes, on 7 April 2017 the trial judge circulated a revised draft of the proposed summing up. The second draft, like the first, contained separate sections dealing with tendency evidence and context evidence. While the second draft accommodated the Crown’s comments and proposals, it did not in any material way deviate from the first in relation to these two topics.

24. [24]

    Paragraph 71 of the second draft reproduced, without variation, par 64 of the first draft. No equivalent was incorporated into the tendency evidence directions (nor had any such addition been sought).

25. [25]

    In his oral directions, the trial judge followed closely the draft directions as circulated. However, in that part of the summing up that dealt with context evidence, he added (in what had been paragraph 64 of the first draft):

26. [26]

    He added a reminder that the applicant denied all allegations and denied any impropriety towards any of the complainants.

27. [27]

    No complaint at trial was made about these directions. Accordingly, to raise the ground of appeal on which he seeks to rely, the applicant requires leave under r 4 of the Criminal Appeal Rules (NSW).

The proposed appeal

1. [28]

   As indicated above, it is the directions in relation to tendency evidence that gives rise to the single ground of appeal, which is formulated as follows:

2. [29]

   Further, although it was not articulated as a ground of appeal, complaint was made of the interpolation into the context evidence direction (which the applicant accepts was otherwise correct) that that direction “stands separately from” the tendency evidence directions, thus, it was claimed, erroneously differentiating context evidence from tendency evidence.

3. [30]

   The basis for the assertion that directions to the effect set out in the two paragraphs of the pleaded ground ought to have been given, and that their omission constitutes appellable error, lies in the Criminal Trial Courts Bench Book (“the Bench Book”) issued by the NSW Judicial Commission. On behalf of the applicant it was asserted that the Bench Book contains what was described as “a model direction” with respect to tendency evidence.

4. [31]

   Before coming to what that direction includes, it is necessary to note the provenance of the Bench Book. As mentioned, it is issued by the Judicial Commission of NSW. It begins with two important preliminaries: under the heading “Comments and Contacts” the following is stated:

5. [32]

   In a Foreword, the then Chief Justice said:

6. [33]

   Until 2002 the Bench Book was available only to judges. Since that date it has been made more generally available with the intention that legal practitioners would be aware of what directions are likely to be given and be able to make submissions directed to adapting the suggested directions to the particular circumstances of any case.

7. [34]

   I have reproduced those passages from the Comments and Contacts and the Foreword to the Bench Book at length because it has become commonplace (as in this case) for criticism to be levelled where directions in a given case do not conform precisely to those outlined in the Bench Book. The very point of the Bench Book is that it synthesises, so far as possible, statements of principle and directions that have received appellate approval. As the above passages emphasise, the Bench Book is not intended to and does not mandate any particular form of directions. Nor can it. It is, at best, advisory. Every case is different, and has its own circumstances, and the task of a trial judge is to direct the jury on the issues that arise in the particular case: Alford v Magee (1952) 85 CLR 437 at 466; [1952] HCA 3. Not every suggested direction in the Bench Book is necessarily suited to, let alone required by, the circumstances of a particular case.

8. [35]

   In R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 Spigelman CJ at [72] said that this Court should reject the use of the Bench Book as:

9. [36]

   In R v Hong [2009] NSWCCA 242 (at [34]) the Chief Justice again rejected an argument to the effect that failure to give a direction in the terms of a suggested direction in the Bench Book constituted appellable error and added:

10. [37]

    In AL v R [2017] NSWCCA 34; (2017) 266 A Crim R 1, Leeming JA, Schmidt and Wilson JJ said:

11. [38]

    In Ith v R [2012] NSWCCA 70, at [48] McClellan CJ at CL pointed out that what is necessary is:

12. [39]

    That is the question to which I will shortly turn.

13. [40]

    The context evidence direction given (both as proposed in the successive drafts, and, with the exception of the additional sentence differentiating context evidence from tendency evidence, as given orally) conformed closely with the suggested context evidence direction in the Bench Book (at [4-215]). As I have already observed, no complaint was made about that direction.

14. [41]

    With respect to tendency evidence, the Bench Book contains two suggested directions, in [4-227] and [4-232]. The former is concerned with tendency evidence generally, and is not limited to any particular class of case. The latter is concerned specifically with trials of child sexual abuse charges and proceeds on the basis that the tendency that the Crown seeks to establish is a sexual interest in the complainant, and a willingness to act on that interest. (Those were the tendencies on which, in this case, the Crown relied).

15. [42]

    In [4-227], a detailed explanation of tendency evidence is given. It suggests a sequential reasoning process, involving consideration of:

16. [43]

    Paragraph [4-227] goes on to suggest a further direction in the following terms:

17. [44]

    Similarly, in [4-232], the Bench Book suggests that, in child sexual abuse cases where the Crown relies on tendency evidence, a direction be given to the effect that:

18. [45]

    There are two distinct parts to the suggested direction:

19. [46]

    It is the omission of directions to this effect that gives rise to the ground of appeal. On behalf of the applicant it was submitted that the tendency evidence direction ought to have incorporated a paragraph in terms of [4-227], and that its omission constituted error. (It is somewhat curious that reliance was placed on [4-227], when [4-232] relates specifically to trials of child sexual assault charges, but there is no relevant difference between the two).

20. [47]

    The question for determination is whether the omission of such a direction constituted appellable error.

21. [48]

    Appeals against conviction are governed by the Criminal Appeal Act 1912 (NSW), s 6(1) of which provides as follows:

22. [49]

    It is not suggested in this appeal that the verdict of the jury was unreasonable or could not be supported on the evidence, nor that there was any wrong decision on a question of law. To succeed in the appeal, the applicant needs to demonstrate that there was a miscarriage of justice. This he seeks to do by arguing that the inclusion of a version of the Bench Book directions extracted above was necessary, and that its omission meant that the tendency evidence directions were flawed to a point that caused the trial to miscarry.

23. [50]

    Given that failure to conform to the suggested direction in the Bench Book does not, of itself, give rise to a valid ground of appeal, it is necessary to consider whether, in the circumstances of the applicant’s trial, the direction in question (or either part of it) was called for, and whether the omission to give a direction in those terms resulted in a miscarriage of justice.

24. [51]

    The applicant relied on two decisions in which directions in accordance with the Bench Book had been given, and which were approved by this Court. These were El-Ali v R [2015] NSWCCA 300; BP v R [2010] NSWCCA 303. Neither suggests that the direction in question was mandatory. What the applicant did not identify was any case in which failure to give any part of those directions had been found to be appellable error.

25. [52]

    I alluded earlier to the different purposes for which tendency evidence and context evidence are adduced. There is now a reasonably clear distinction between evidence admitted as tendency evidence and evidence admitted as “context/relationship” evidence. It was not always so.

26. [53]

    It has only been since the advent of the Evidence Act that the dividing line has been drawn. The consequence of the dividing line is that it is now clear that the two kinds of evidence are admitted for different purposes and call for different directions.

27. [54]

    In Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463 (at [114]) Howie J defined “relationship evidence in its traditional sense” as “evidence that places the acts of the accused in context”. Such evidence is not confined to evidence to be given in trials of sexual charges (although it is frequently a component of those trials) and, indeed, the example given by Howie J was drawn from the trial of a man for the shooting murder of his wife. The factual issue in that trial was whether the gun was fired deliberately or accidentally. Evidence was admitted that was capable of showing significant animosity between the couple. It was held in the High Court that the evidence cast light on the relationship between the parties and, therefore, on the critical question of deliberate or accidental discharge of the gun: Wilson v The Queen (1970) 123 CLR 334; [1970] HCA 17. The evidence in question in Wilson was not of unlawful activity by the accused, nor, in fact, of any conduct by him. It was of comments made by his deceased wife that was said to cast light on the issues in the trial.

28. [55]

    The admission of evidence of misconduct on the part of the accused person (whether criminal or merely discreditable) was, until the enactment of the Evidence Act, a source of significant controversy. In 1993, in R v Beserick (1993) 30 NSWLR 510 at 515 Hunt CJ at CL identified two bases on which evidence of that kind could be admitted. The first was to establish a sexual relationship “which makes the complainant’s allegations more likely to be true”. In the language of the ancient cases, it could be shown that the accused harboured “a guilty passion” for the complainant. The evidence was thus admissible in direct proof of the commission of the offences charged. This was tendency evidence as we now know it.

29. [56]

    The second pre Evidence Act basis identified by Hunt CJ at CL for admission of evidence of this kind was:

30. [57]

    In Qualtieri Howie J went onto say:

31. [58]

    The applicant placed heavy reliance on the judgment of McHugh J in BRS v The Queen (1997) 191 CLR 275 at 305; [1997] HCA 47, in which his Honour said:

32. [59]

    BRS was decided under the evidentiary regime in NSW that predated the Evidence Act. The admission and use of what was then called “similar fact” or “propensity” evidence was bedevilled with complexity and uncertainty: see, for example, R v Ellis (2003) 58 NSWLR 700; [2003] NSWCCA 319. Whatever directions McHugh J had in mind have now been superseded by the provisions of ss 97 and 101(2) of the Evidence Act.

33. [60]

    In HML v The Queen (2008) 235 CLR 334; [2008] HCA 16 Kiefel J (as the Chief Justice then was) explained the significance of “relationship evidence” as:

34. [61]

    HML, like BRS, was a case in which the admissibility and use of the evidence of uncharged acts was to be determined on common law principles. No equivalent of s 97(1) of the Evidence Act applied. Although her Honour used the terminology of “relationship evidence”, the observations are equally apt for evidence tendered under s 97(1). These observations were adopted by the High Court in The Queen v Bauer (a pseudonym) v [2018] HCA 40; (2018) 92 ALJR 846 (at [49]) in which tendency evidence, consisting of a mix of charged and uncharged acts was admitted.

35. [62]

    One difference between tendency evidence and context evidence is that while the Crown might rely on conduct the subject of other charges in proof of any count on the indictment, “context” or “relationship” evidence invariably consists of evidence of conduct attributed to the accused that is not the subject of charge – “uncharged acts” or “uncharged conduct”, much discussed in HML. The purpose of the tender and admission of “relationship” or “context” evidence, post Evidence Act, is clearly and uncontroversially explained in the directions given in that respect by the trial judge (in paragraphs [57]-[60] of the first draft of the summing up).

36. [63]

    Tendency evidence may also consist in evidence of “uncharged acts” as well as, as in this case, of acts or conduct that are the subject of charge. In this case the Crown did not seek to rely on the uncharged acts as tendency evidence, although it could have done so. Rather, it relied on the uncharged acts only as context evidence and the “charged acts” as tendency evidence. That meant that there was a clear division between, on the one hand, the tendency evidence on which the Crown relied, and, on the other hand, the context evidence on which it also relied, each for a different purpose.

37. [64]

    Tendency evidence, in contrast to context evidence, is tendered precisely for the purpose of proving that the accused person had a particular propensity or disposition. Therein lies the distinction between context evidence and tendency evidence.

38. [65]

    Section 97 of the Evidence Act has been described as “a contingent exclusionary rule”: Jacara Pty Ltd v Perpetual Trustee WA Ltd (2000) 106 FCR 51; [2000] FCA 1886. That is because the Evidence Act proceeds on the basis, stated in s 56, that, except as otherwise provided, evidence that is relevant in a proceeding is admissible in the proceeding (subs (1)), and evidence that is not relevant in the proceeding is not admissible (subs (2)). It is the exceptions and qualifications that follow that create exclusionary rules. Section 97(1) creates one such exclusion. Subject to two contingencies or conditions, evidence of character, reputation or (importantly) conduct of a person is not admissible to prove that the person had a tendency to act in a particular way or to have a particular state of mind. The contingencies are important. They are that reasonable notice of the intention to adduce such evidence has been given, and that the court thinks that the evidence will have significant probative value. If those two contingencies or conditions are satisfied evidence that otherwise would be excluded by s 97(1) is admissible. The practical effect of s 97, therefore, is to render evidence of tendency admissible provided that the conditions are satisfied.

39. [66]

    This marks a significant departure from the common law, as stated in, for example, Hoch v The Queen (1998) 165 CLR 292; [1998] HCA 50; Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7.

40. [67]

    In Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206 this Court explained the purpose of the tender of tendency evidence as follows:

41. [68]

    These passages were cited with apparent approval by Gageler J in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [104].

42. [69]

    In BC v R [2015] NSWCCA 327; (2015) 257 A Crim R 340 Beech-Jones J (with my agreement) quoted the passage from Elomar extracted above and said:

43. [70]

    It may be accepted that the admission of tendency evidence necessitates clear directions, in accordance with the statute, as to the purpose of its admission and the use that can be made of it. Both were spelled out with clarity in the summing-up in this case.

44. [71]

    As observed above, except for the omission of one paragraph, the trial judge’s directions followed closely the Bench Book suggested directions. It seems to me that he made a deliberate and considered decision to omit the paragraph of which complaint is now made. In my opinion that was a correct decision. The admission of tendency evidence called for directions:

45. [72]

    It would have made little sense and would have been contradictory and confusing to follow that direction with a direction that the jury could not reason that, because the applicant had committed one or more of those acts, he was a person of bad character and must have committed one or more of the offences charged. The very point of tendency evidence is that, when it becomes admissible, it may establish a “propensity” – which may be a criminal propensity. While a finding that an accused person has a tendency to commit criminal acts might not be co-extensive with a finding that that person is “generally a person of bad character”, it is not very far removed. A direction in the terms suggested would have operated, in effect, as the negation of the correct tendency direction.

46. [73]

    I would reject the proposition, made in the first part of the ground of appeal, that the failure to direct the jury in the terms stated, caused a miscarriage of justice.

47. [74]

    As to the second part of the ground, a direction that the jury “cannot punish” an accused person for conduct other than conduct the subject of charges on the indictment is entirely correct and appropriate in relation to evidence of criminal or discreditable acts relied upon as context evidence. In this case it was an appropriate direction in relation to the two acts evidence of which was tendered for that purpose. A direction was given to that effect. Such a direction would have been inapposite to the evidence of the acts the subject of the charges. It was not a question of “punishing” the applicant for uncharged conduct. The jury were entitled to use any of the charged conduct in its assessment of the remaining charges. (The direction that the jury could not use the evidence relative to any count in proof of the other counts unless and until satisfied beyond reasonable doubt that that offence had been committed may have been unduly favourable to the applicant, but that does not arise in the present application).

48. [75]

    The trial judge was correct to omit the paragraph from the direction. It is of some importance that experienced trial counsel who represented the applicant at trial did not seek the inclusion of either part of the suggested direction, even when given two opportunities prior to the delivery of the oral summing up.

49. [76]

    As mentioned above, complaint was also made of the differentiation of the two types of evidence by the interpolation into the summing up of the words, in the context evidence direction:

50. [77]

    Far from constituting error, the directions correctly identified the distinction between evidence tendered as tendency evidence, and evidence tendered as context evidence.

51. [78]

    No error has been shown in the directions given to the jury.

52. [79]

    The acquittals on counts 1 and 2 are a powerful indication that the jury did not conclude that, because he had committed other acts of misconduct, the applicant was a person of “bad character” who must have committed the offences charged; nor did they “punish” the applicant by finding him guilty of all of the offences on the indictment. The acquittals are a clear indication that the jury discharged its task faithfully, gave proper consideration to each separate count on the indictment and that there was no miscarriage of justice.

53. [80]

    Only limited information was available to this Court to explain the delay in the filing of the Notice of Appeal. The only conclusion that I can draw is that there was either a miscommunication between the applicant and his then solicitor, or a failure on the part of that solicitor to act on instructions. In these circumstances I would extend the time in which to appeal.

54. [81]

    I would not, however, grant leave under r 4 of the Criminal Appeal Rules to argue the pleaded ground of appeal. In reaching that view I have, as is apparent from these reasons, taken into account the merits of the proposed appeal.

55. [82]

    The orders I propose are:

56. [83]

    JOHNSON J: I have had the advantage of considering in draft the judgment of Simpson AJA. I agree with the orders proposed by her Honour and generally with her Honour’s reasons.

57. [84]

    I agree with Simpson AJA that the trial Judge in this case in fact adapted the direction given to suit the circumstances of the trial in accordance with the note contained in the Criminal Trial Courts Bench Book (“Bench Book”) at [4-230]. As Simpson AJA has observed, what was required in this trial was a modified version of the direction suggested for a child sexual assault case at [4-232]. The trial Judge modified the form of direction suggested in the Bench Book and the experienced counsel who appeared for the Applicant at the trial did not seek any alteration to the proposed direction. The Applicant should be refused leave under Rule 4 Criminal Appeal Rules to rely upon the pleaded ground of appeal.

58. [85]

    As Simpson AJA has observed (at [34]), the Bench Book performs an advisory and not prescriptive role where it seeks to synthesise, so far as possible, statements of principle and directions that have received appellate approval. As her Honour has noted, several decisions of this Court have stated that the Bench Book provides assistance to trial Judges with draft directions to be modified (if the Bench Book is utilised) to meet the needs of a particular case.

59. [86]

    Simpson AJA notes (at [43]-[45]) references to “bad character” and not “punishing” an accused person in the Bench Book suggested directions concerning tendency evidence. To the extent that it may be relevant, I note that directions using this terminology concerning tendency evidence have not attracted criticism on appeal. See, for example, DAO v R (No 2) [2014] NSWCCA 126 at [196]-[197], Sumpton v R [2016] NSWCCA 162 at [98]-[99] and McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52 at [13]-[15].

60. [87]

    Simpson AJA refers to a number of decisions of this Court concerning tendency evidence in criminal trials where ss.97 and 101 Evidence Act 1995 have been considered. It is fair to say that this area of the law has been under review since the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse was published in 2017. A number of recommendations of the Royal Commission have been implemented or are in the course of implementation.

61. [88]

    The Evidence Amendment (Tendency and Coincidence) Act 2020 commenced on 1 July 2020 and effected significant changes with respect to child sexual abuse trials. A new s.97A is inserted which concerns admissibility of tendency evidence in proceedings involving child sexual offences. Section 101(2) (mentioned by Simpson AJA at [11]) has also been amended.

62. [89]

    Further reforms are expected to follow. In the second reading speech for the Evidence Amendment (Tendency and Coincidence) Bill 2020, the Attorney General foreshadowed statutory reform in associated areas (Hansard, Legislative Assembly, 25 February 2020):

63. [90]

    The legislation foreshadowed by the Attorney General has yet to be brought forward in the New South Wales Parliament, but it seems clear that the law in this area will be the subject of continuing and significant reform. It appears that the proposal to implement Royal Commission Recommendation 48 is based upon acceptance of the Victorian position as reflected in the Jury Directions Act 2015 (Vic). In explaining Recommendation 48, the Criminal Justice Report (Parts III-IV) of the Royal Commission stated (at page 645):

64. [91]

    This development will affect the issue raised by Simpson AJA (at [74]) concerning the standard of proof for tendency evidence.

65. [92]

    The point of making these observations about reforms is to emphasise that, in the changing area of law concerning tendency evidence, the Bench Book will seek to assist trial Judges by reference to statutory amendments and pertinent appellate decisions. It is clear that statutory reforms in this area will be the subject of appellate consideration by this Court, and that what is said in that respect will assist the authors of the Bench Book to frame suggested directions in the future.

66. [93]

    HAMILL J: I have had the advantage of reading a draft of the judgment to be delivered by Simpson AJA. Since circulating a first draft of this judgment, I have also had the opportunity to read the draft judgment of Johnson J. Substantially for the reasons articulated by the presiding Judge, I agree that the application for leave to appeal should be refused pursuant to r 4 of the Criminal Appeal Rules (NSW) and that the appeal should be dismissed. Given the applicant’s reliance on them, I would add some brief observations concerning the Criminal Trial Courts Bench Book (“Bench Book”) directions relating to tendency evidence and the High Court’s decision in BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47. I will also make some general comments on the appropriate directions to be given in cases where the prosecution is permitted to rely on evidence of other criminal conduct in proof of the charged offence.

67. [94]

    I agree with all that Simpson AJA has said about the use of the Bench Book and its “suggested directions” as a foundation to fashion grounds of appeal. I agree that the omission of a suggested Bench Book direction does not constitute appellable error capable of impeaching a summing up. To treat the draft directions contained in the Bench Book as “model directions” is to ignore both the express caveats in the Comments and Foreword and the fundamental purpose of a summing up expressed in cases such as Alford v Magee (1952) 85 CLR 437; [1952] HCA 3. Further, the relevant part of the Bench Book upon which the applicant relies relates to cases where the tendency evidence concerns uncharged conduct. In this case the conduct relied on as tendency evidence was constituted by the acts charged in the indictment and the Bench Book advises specifically that “in such a case the suggested direction will need to be amended. [1]

68. [95]

    As Simpson AJA explains at [45]-[46], there are two components to the Bench Book direction that the applicant submits was necessary to ensure he received a fair trial. The first component is to prohibit the jury from reasoning that because the accused person has committed other reprehensible or criminal acts, he or she is “therefore generally a person of bad character and for that reason” must be guilty of the offence charged. The second component to the direction is to caution the jury against “punishing” the accused for the other conduct by finding them guilty of the charge on the indictment.

69. [96]

    The first component of the direction will rarely be appropriate in a trial where the prosecution is relying on tendency evidence. That is because the direction comes close to prohibiting precisely the sort of reasoning that s 97 of the Evidence Act 1995 (NSW) allows. It may be that the use of the phrase “generally a person of bad character” is designed to distinguish the forbidden reasoning process from the process of using specific tendencies established by the evidence in considering the counts on the indictment. However, that distinction is likely to be elusive to a jury. It is difficult to imagine a jury finding that an accused person has a tendency to act on his sexual attraction to children and not consider them to be “generally a person of bad character”. As Simpson AJA explains, especially at [72], it is difficult to reconcile this part of the Bench Book direction with a direction explaining the permissible reasoning process in a tendency case:

70. [97]

    There may be cases – for example, where an accused person calls evidence of good character (either generally or in a particular respect) [2] – where a direction fashioned to meet the particular circumstances of the case may need to be incorporated in the summing up. There may also be cases where a witness gives unexpected evidence or a prosecutor makes a submission that obliges a trial Judge to direct a jury, possibly in terms similar to those used in the Bench Book, to ensure that the evidence is not used in a prejudicial way. However, in most cases the introduction of the accused person’s “general” bad character is unlikely to assist a lay jury in understanding the use to which the tendency evidence can properly be put. It is also unlikely to reduce the prejudice inherent in the admission of such evidence.

71. [98]

    It is true, as Johnson J says at [86], that directions exhorting a jury not to treat the accused as a person of “bad character” have been given in other cases without particularly adverse comment on appeal. However, in DAO v R (No 2) [2014] NSWCCA 126, Simpson J (as her Honour then was) said at [197] that the direction “took a good deal of the sting out of the tendency evidence”. The circumstances of Sumpton v R [2016] NSWCCA 162 were very different. The tendency evidence related to a quite particular aspect of the prosecution case (whether the accused was attracted to women of Asian appearance). The instructions given to the jury, reproduced at [98] of the judgment of Hoeben CJ at CL, were very different from the draft directions set out in the Bench Book. In McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 the directions were not subject of complaint. As Simpson AJA points out at [51], no case was identified in which failure to give the relevant parts of the Bench Book directions was held to be an appellable error.

72. [99]

    Before leaving this first aspect of the Bench Book direction, I should mention the decision of BC v R [2015] NSWCCA 327; A Crim R 340 to which Simpson AJA refers at [69]. BC v R was an application under s 5F of the Criminal Appeal Act 1912 (NSW) relating to the admissibility of tendency evidence and the question of whether trials should be separated. It was not a case concerned with directions. In response to submissions based on the decision in Sokolowskyj v R [2014] NSWCCA 55; 239 A Crim R 528, Beech-Jones J described the process of reasoning as including a conclusion that the accused is the “sort of person” more likely to commit the offence because of the tendency established by the evidence. This is language that was often used in the common law cases regarding the general prohibition on the use of propensity evidence. While it is one way of describing the reasoning process involved in the use of tendency evidence, trial Judges ought not to use that terminology in summing up to a jury. I do not understand the majority in BC v R to have suggested otherwise and, as I have said, the issue of the appropriate directions did not arise. Inviting the jury to consider whether the accused is the “sort of person” more likely to commit the offence runs the risk of the jury reasoning in a prejudicial, rather than logical, manner.

73. [100]

    The same applies to directions referring to the possibility that the jury might find that the accused is “generally a person of bad character”. Because of the danger of prejudice in cases where tendency evidence is admitted, the choice of language is important. Generally, the safest course will be to refer to the specific “tendencies” that the prosecution alleges and to explain the process by which the jury must first be satisfied that such tendencies are established and how that may impact on their consideration of the specific offence (or offences) with which the accused is charged. The directions, like those given by Judge Toner SC in the present case, should include an exhortation that if the evidence upon which the tendency case is based is not accepted, the jury should disregard the tendency case and consider the other evidence relied on by the prosecution. Similarly, if the jury is not satisfied the tendency in question is established; the tendency case should be disregarded.

74. [101]

    The second component of the Bench Book direction is calculated to ensure that the jury does not use the evidence in a prejudicial way and, in particular, does not substitute the evidence adduced as tendency evidence for the specific charge or count under consideration. It will be necessary in cases where tendency or context evidence is adduced by the prosecution for the trial Judge to warn the jury against the misuse of the evidence based on an emotional or prejudiced reaction to the evidence. As the majority of the High Court accepted in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [17]:

75. [102]

    Directions should be fashioned to minimise the risk of such prejudicial reasoning. For example, the jury should generally be directed that people do not always act on such tendencies and the question always remains whether it is established beyond reasonable doubt that the accused committed the particular offence charged.

76. [103]

    Most importantly, the directions must identify the purpose for which the evidence was admitted and the use or uses to which it can properly be put. The Judge should explain the reasoning process involved. It will usually be appropriate to direct the jury that the evidence cannot be used in any other way. In cases where the tendency evidence is not the subject of the specific charges, it will be appropriate to direct the jury that it must not find the accused guilty of a specific charge unless it is satisfied beyond reasonable doubt that the accused is guilty of that charge; it must not substitute the conduct adduced as tendency evidence as proof of the charge. It must not find the accused guilty of a specific charge because the jury finds the accused person engaged in other criminal conduct.

77. [104]

    In the present case the trial Judge set out the permissible process of tendency reasoning in paragraph [51] of the draft directions provided to the parties in advance of the summing up. These are set out by Simpson AJA at [20]. His Honour instructed the jury that it could only use the evidence in that way if it was satisfied beyond reasonable doubt of two things: first, that the act occurred and, second, that the act established the applicant had the tendency alleged by the prosecution. In the present case, because the tendency evidence involved other counts on the indictment, it was appropriate for the jury to be satisfied that the act alleged was proved beyond reasonable doubt. It is unnecessary in this case to consider the standard of proof involved when the tendency evidence is comprised of uncharged acts: cf The Queen v Bauer [2018] HCA 40; 271 A Crim R 558, a decision based largely on the specific provisions in s 62 of the Jury Directions Act 2015 (Vic) but also on the fact “[o]rdinarily, proof of the accused's tendency to act in a particular way will not be an indispensable intermediate step in reasoning to guilt”. [3] Nor is it necessary to consider the particularly vexed circumstance where the prosecution relies on tendency evidence consisting of both charged and uncharged acts. In such cases, directing the jury as to the standard of proof (if any) is particularly complicated and the safer course is probably to insist on proof to the criminal standard for all of the tendency evidence. However, as Johnson J identifies at [87]-[91] these issues are subject of “foreshadowed statutory reform”.

78. [105]

    As to the danger that the jury may substitute an adverse finding about the tendency evidence for a specific charge in the indictment, that direction was not necessary in the applicant’s case because all of the tendency evidence was comprised of the very acts charged in the indictment. Such a direction will generally be appropriate where evidence is adduced to provide context or when the tendency evidence consists of acts not charged in the indictment.

79. [106]

    As Simpson AJA points out at [59], BRS v The Queen was decided before the introduction of the Evidence Act. The evidence in BRS v The Queen was not adduced as “propensity” evidence, the closest common law equivalent of “tendency” evidence under the Evidence Act: Hughes v The Queen at [13]. For more than a century, the common law held that evidence that did no more than establish that an accused person had a propensity or disposition to commit criminal offences, including specific kinds of criminal offences, was not admissible unless it was relevant for some other purpose. In Makin v Attorney General for New South Wales [1894] AC 57 Lord Herschell said at 65:

80. [107]

    That proposition was applied in R v Ball [1911] AC 47 and was followed in countless subsequent cases: see, by way of example, Markby v The Queen (1978) 140 CLR 108 at 116; [1978] HCA 29, Perry v The Queen (1982) 150 CLR 580 at 584-585 (Gibbs CJ) and 609 (Brennan J); [1982] HCA 75, Sutton v R (1984) 152 CLR 528 at 533; [1984] HCA 5, Hoch v The Queen (1988) 165 CLR 292 at 301 (Brennan and Dawson JJ); [1988] HCA 50. Similar statements were made in Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50 although some of the Justices also made observations suggesting that there was no absolute prohibition on evidence that had no purpose other than establishing a criminal propensity or disposition to commit the charged offence provided the probative value of the evidence clearly transcended its prejudicial effect: (1989) 167 CLR 190 at 597-600 (Dawson J), 613 (Gaudron J) and 635 (McHugh J). Gaudron J referred to this at 613-614 as “improbability” evidence. In some cases the evidence was permitted as “similar fact” evidence, essentially the common law equivalent of “coincidence evidence” under s 98 of the Evidence Act: Hughes v The Queen at [13].

81. [108]

    In Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7 McHugh J said at 527 that it was “impossible to maintain that the Anglo-Australian law prohibits the use of propensity evidence in all circumstances”. However, the remaining members of the Court approached the case on the basis that the evidence was not admissible if it showed only the accused had a propensity or disposition to commit the crime. Their Honours adopted the “improbability” approach requiring the evidence to have some purpose apart from establishing the accused’s propensity or disposition, or for there to be an “underlying unity” or “striking similarity” with the offence charged (that is, it was admissible as similar fact evidence). An examination of these cases, and the scores of others decided in this area, bears out Simpson AJA’s observation at [59] that the area was “bedevilled with complexity and uncertainty.”

82. [109]

    The introduction of ss 97-101 of the Evidence Act substantially altered the law in this area: Hughes v The Queen at [13]. The changes are concerned with the characterisation and rules of admissibility of the evidence. The High Court has considered the tendency rule on a number of occasions and the application of the ostensibly simple rules of admissibility has proven to be controversial: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, Hughes v The Queen; The Queen v Bauer and McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045. In one of the three dissenting judgments in Hughes v The Queen, Nettle J at [180] disputed the proposition that “the s 97 criterion of admissibility” is “simple”. These issues are of no moment in the present case because the applicant made no complaint on appeal as to the admissibility of the evidence. The point to be made is simply that, while the Evidence Act changed the legal landscape as to the “criterion of admissibility”, it makes no provision concerning the appropriate directions to be given to a jury in cases where tendency or coincidence evidence is admitted. It remains the case that careful and clear directions must be fashioned to ensure the jury does not misuse the evidence, that any potential prejudice is minimised, and that the jury does not give “disproportionate weight” to the evidence: Hughes v The Queen at [17].

83. [110]

    Returning to the applicant’s reliance on the statements of McHugh J in BRS v The Queen at 305, this was a case decided under the common law. The disputed evidence in that case – that the appellant (a teacher) encouraged a school-boy (W) to masturbate in his bedroom using a towel and lubricant – was not relied on as propensity evidence. It was admitted to support the account of the complainant (H, another school-boy) that a towel and lubricant were present in the appellant’s bedroom at the time of the offences against H. It was also admitted as evidence capable of rebutting the appellant’s case that he was a person of good character. Four members of the High Court held that the trial miscarried because there was no direction prohibiting the jury from using W’s evidence as propensity evidence: (1997) 191 CLR 275 at 294-5 (Toohey J), 301-303 (Gaudron J), 304-305, 310 (McHugh J), 330, 332 (Kirby J). The observations of McHugh J at 305, relied on by the applicant, should be considered in that context. His Honour’s comment that the jury must receive “careful directions” was mainly concerned with the need to prohibit propensity reasoning in a case where the evidence was not admitted for that purpose. His Honour spoke about that prohibited reasoning in the final paragraph of 304:

84. [111]

    In the present applicant’s case, the evidence was admitted as tendency evidence. It was unnecessary, and would almost certainly have confused the jury, to provide a direction in accordance with the first component of the Bench Book direction. As I have said, the second component of the suggested direction was not necessary in a case where all of the tendency evidence consisted of allegations that were included as counts on the indictment. The notes in the Bench Book to which I referred at [94] make it clear that any direction needed to be amended in a case where the tendency evidence arose from charges in the indictment.

85. [112]

    Judge Toner SC provided the jury with clear guidance on the use that could be made of the tendency and context evidence. Experienced and diligent counsel had the benefit of the summing up in draft and made no application for any further direction on the issue.

86. [113]

    I agree with the orders proposed by Simpson AJA.