CA v R

1. [1]

   BEAZLEY ACJ: I have had the advantage of reading in draft the reasons of N Adams J. I agree with her Honour’s reasons and proposed order.

2. [2]

   WALTON J: For the reasons stated by N Adams J, I would dismiss the appeal.

3. [3]

   N ADAMS J: On 5 August 2015, the appellant pleaded not guilty to five counts of aggravated indecent assault. The complainant, who shall be given the pseudonym “John”, was the son of a family friend. The circumstance of aggravation is that at all relevant times John was under the age of 16 years. The trial proceeded before Hoy SC DCJ and a jury of twelve. On 19 August 2015, the jury found the appellant guilty on all counts.

4. [4]

   On 11 March 2016, the appellant was sentenced to an aggregate sentence of four years’ imprisonment with a non-period of two years and three months. The appellant appeals against the convictions. He does not seek leave to appeal against the sentence.

5. [5]

   The five counts pertained to two separate time frames. The first tranche of offences was brought contrary to s 61M(1) of the Crimes Act 1900 (NSW) in the form in which it was until its amendment on 2 January 2009. Counts 1 and 2 were alleged to have occurred between 30 June 2006 and 30 June 2007 and Count 3 was alleged to have occurred between 1 January 2007 and 30 June 2007. John was born in April 1996 and was 10 or 11 years old at the time of these offences. The second tranche of offences, Counts 4 and 5, was brought contrary to s 61M(2) of the Crimes Act. Count 4 was alleged to have occurred between 1 January 2011 and 16 December 2011 and Count 5 was alleged to have occurred on or about 27 January 2012. John was 15 years old at the time of these offences.

6. [6]

   John alleged that there was a further incident that occurred in between these two tranches. He alleged that his family, the appellant’s family and another family visited a lookout while on holiday in Victoria in October 2009 and that, at the lookout, the appellant grabbed his penis. John became angry and hit the appellant. A number of persons were present for the altercation but no other witnesses saw the appellant grab John’s penis. I shall refer to this as “the lookout incident”.

7. [7]

   The lookout incident could not be included as a count in the indictment as it occurred outside of New South Wales. Instead, it was relied upon as “context” evidence.

8. [8]

   The appellant relies upon a sole ground of appeal that the trial Judge erred in admitting evidence of the lookout incident at the appellant’s trial. The determination of this appeal thus concerns the discrete consideration of whether evidence of the lookout incident was relevant within the meaning of s 55 of the Evidence Act 1995 (NSW) and, if it was, whether it should it have been excluded under s 137 of the Evidence Act.

The evidence at trial

1. [9]

   Given that the sole ground of appeal concerns the admissibility of evidence of a discrete event, I do not consider it necessary to summarise the evidence at the trial in any great detail. Most of the evidence at the trial was in the form of evidence of complaint, which was made to a number of people, and cross-examination regarding the five counts on the indictment and their surrounding circumstances. 12 civilian witnesses were called at the trial.

2. [10]

   Both John’s family and the appellant’s family were originally from Sri Lanka. They met in Sydney in about 1996 and became close friends. They spent time together socialising. John has two younger sisters and the appellant and his wife have two daughters.

3. [11]

   John’s evidence in chief was played to the jury by way of DVDs containing his recorded interviews with the Joint Investigation Response Team (“JIRT”) on 5 March 2012 and 12 March 2012.

4. [12]

   Counts 1 and 2 were referred to as “the pond incidents” in the trial. John told police that in 2007 the appellant had asked him to help clean the appellant’s pond at his home in Quaker’s Hill. After they cleaned the pond, the appellant told John to have a shower in the ensuite to his bedroom. The appellant came into the shower with his underpants on while John was in the shower. The appellant started washing John and he rubbed John’s penis (Count 1). After they got out of the shower, the appellant told John to lie on the bed and he used a towel to wipe down John’s body. He also rubbed John’s penis and scrotum (Count 2).

5. [13]

   Some time after these assaults, the appellant and his family moved to a house in Carlingford.

6. [14]

   Count 3 occurred in the bedroom of the appellant’s daughter at the Carlingford house. John was watching a comedy show on the daughter’s iPod in the room when the appellant came into the room. John and the appellant were alone in the house at the time. The appellant lay down next to John, massaged his head and back, and then took John’s pants off and rubbed his penis until it became erect. This incident was referred to as the “iPod incident” in the trial.

7. [15]

   Count 4 occurred about three and a half years later and was referred to in the trial as the “Big Momma’s House” incident. John told police that he, his two sisters, and the appellant’s two daughters were all at the appellant’s house in Carlingford. They stayed up late watching the film “Big Momma’s House 3”. The girls went to sleep on the futon and John went to bed in the bedroom of one of the appellant’s daughters. The appellant came into the room after midnight. He started doing work on his laptop before getting into bed with John. John moved away from the appellant. The appellant hugged John and started rubbing his penis on John’s leg. John told police that the appellant tried to flip him over onto his back, but he resisted and the appellant gave up.

8. [16]

   Count 5 occurred after John returned to Australia from Sri Lanka on his own in January 2012. John’s father had had a heart attack in Sri Lanka and he and John’s mother did not return to Australia until February 2012. The appellant picked him up from the airport and John stayed at the appellant’s house before moving to the home of another family friend. On 27 January 2012, John awoke to find the appellant standing nearby. John told police that the appellant “dropped himself on top of [him]” and squeezed his penis. John told the appellant to stop and that it hurt. The appellant got off him and laughed.

9. [17]

   Shortly after Count 5, John complained to a large number of people about the appellant’s conduct. He was interviewed by police on 5 and 12 March 2012. There is no need to set out John’s evidence in detail. It is not relevant to the ground of appeal.

10. [18]

    John described the lookout in his JIRT interview of 12 March 2012 in these terms:

11. [19]

    John gave further details later in his interview as follows:

12. [20]

    John was cross-examined about this evidence. He explained that the touching of his penis was over his clothing and that the appellant and he were facing each other and the appellant was in front of him. It was suggested to him that he had been “excited” during that holiday and had been hitting everybody, including the girls. He said that he could not remember hitting any girls. He was shown some video footage that depicted him stating that he promised not to hit the girls anymore. It was put to him that he kicked the appellant because he was in a bad mood. John denied this.

13. [21]

    A number of other witnesses gave evidence of the lookout incident.

14. [22]

    John’s mother gave evidence that in the September school holidays in 2009 her family, the appellant’s family and a third family drove in three cars to Melbourne. When they were on Phillip Island she heard that there had been an incident between the appellant and John and she told John to apologise for “lashing out at him”.

15. [23]

    John’s father gave evidence that he, the appellant and the other friends were having a coffee and gathering around when:

16. [24]

    In cross-examination John’s father denied that John’s behaviour had been difficult during that holiday. He also denied that John had hit him and he could not remember John hitting anyone else.

17. [25]

    A Buddhist monk gave evidence that he travelled with the families to Mt Dandenong in 2009. He said that he observed an incident between John and the appellant in which John kicked the appellant. The appellant then smiled and walked “down”. He told John that it (that is, kicking an adult) should not be done and both the appellant and John’s mother said that it was a joke. In cross-examination he said that he did not see anything other than John kicking the appellant, but that he was not paying any “special attention”.

18. [26]

    Another member of the group from the third family gave evidence that was he was on the holiday to Melbourne but did not see anything unusual happen at the lookout.

19. [27]

    Another witness gave evidence that he was also on the holiday. He gave evidence that he was having tea when he heard a shout and then:

20. [28]

    He was later told something about the incident by John’s father.

21. [29]

    John’s sister gave evidence. Her evidence in chief was by way of recorded interview. She said nothing about the lookout incident in her evidence in chief. She was on the trip to Melbourne. In cross-examination she stated that she did not remember John punching her on that trip. She did not recall him saying “I promise not to hit girls anymore.” She was shown the video but could not recall it being made. She agreed that John was “hyperactive” on that trip but said that the only person whom he punched was the appellant.

22. [30]

    The appellant participated in an ERISP in which he denied all offences. In relation to the lookout incident, he stated:

23. [31]

    The appellant did not give evidence at his trial, but he called a number of witnesses in the defence case. His wife and eldest daughter gave evidence about the lookout incident.

24. [32]

    The appellant’s wife gave evidence that John was “misbehaving, mischievous from the beginning” of the holiday. He hit her daughter and his sister. She also saw him hit the appellant at the Dandenong lookout. She said that John jumped on the appellant “from the back”. She was close by to her husband when it happened. She did not see her husband make contact with John before John hit him.

25. [33]

    In cross-examination, she stated that John laughed after he had jumped on her husband’s back. She said, “He [the appellant] was in pain. Like a big hit, that was a big hit.” When asked whether it was a friendly or playful hit, she said, “I don’t know. He hold his back and turn around and [John] was laughing.” When asked whether the appellant appeared to be hurt, she replied, “I think so, yeah, because he jump – when he – when he punched, you know, it’s very hurt, painful…he was holding his back.”

26. [34]

    The appellant’s eldest daughter gave evidence that John was not well behaved on the trip. She said, “He would punch people, he would punch me in the arm or in the stomach, push people around. He was very hyperactive.” She also gave evidence that John had similar physical contact with his sister and father. He was “bratty” to his mother. She described what John did to her father as follows:

27. [35]

    She stated that John just laughed and “came back to the kids”. She made a video recording of John on that holiday after John had hit his sister (Exhibit 4). She gave evidence that John would laugh after he hit his sister. She said that it hurt when John hit her, but that it only encouraged him to do it more if she told him that it hurt.

Objection is taken to the evidence at trial

1. [36]

   The Crown served a tendency notice pursuant to s 97 of the Evidence Act prior to the commencement of the trial. The notice sought to rely on two uncharged acts: the evidence of the “lookout incident” as well as an incident described as the “Roselea” incident.

2. [37]

   On 3 August 2015, during the hearing of the application to rely upon the tendency evidence, the Crown Prosecutor withdrew reliance upon the evidence as tendency and instead proceeded on the basis that the evidence was admissible as “context” evidence only.

3. [38]

   It was submitted to Hoy DCJ that the evidence was relevant to meet any suggestion that the conduct came “out of the blue”. That is, that it commenced when the complainant was 10 to 11 years old and then did not start again until he was 14 or 15 years old.

His Honour’s decision at trial

1. [39]

   His Honour declined to permit the Crown to rely upon the “Roselea” incident but ruled that the evidence of the “Melbourne incident” (which I have called the “lookout incident” in this judgment) was admissible. His Honour found:

2. [40]

   His Honour then referred to the decisions of this Court in Qualtieri v R (2006) 171 A Crim R 463; [2006] NSWCCA 95 and DJV v R (2008) 200 A Crim R 206; [2008] NSWCCA 272. It was noted that the Crown relied upon the recent authority in KJS v R (2014) 86 NSWLR 603; [2014] NSWCCA 27. His Honour extracted [28] of the decision of McClellan CJ at CL (as his Honour then was) in DJV v R and [80] of the decision of the Chief Judge in Qualtieri v R and went on to state the following:

Directions to the jury

1. [41]

   As foreshadowed in his ruling on 5 August 2015, Hoy DCJ gave the jury a number of directions as to how they were entitled to take the evidence of the lookout incident into account.

2. [42]

   On 6 August 2015, after John’s pre-recorded interview was played to the jury as his evidence in chief, Hoy DCJ directed the jury about the edits to the DVD played to them and then stated:

3. [43]

   After his Honour gave this direction, counsel for the appellant made an application that the jury be discharged because the direction suggested that the lookout incident had in fact happened. His Honour declined to discharge the jury, but when the jury came back into court he added the following further clarification:

4. [44]

   During his closing address, the Crown Prosecutor told the jury:

5. [45]

   In his closing address, counsel for the appellant described John was “mischievous”. He said that, “…in my submission to you the context is not of a serial interference by this accused with that complainant but of serial misbehaviour by that complainant to people around him.”

6. [46]

   During his summing-up his Honour instructed the jury:

7. [47]

   His Honour drew the jury’s attention to the fact that none of the Crown witnesses saw the sexual misconduct described by the complainant on that occasion.

8. [48]

   Later in the summing-up, after his Honour had summarised John’s evidence of the lookout incident, his Honour stated:

9. [49]

   His Honour went on to summarise the evidence of all of the other witnesses who gave evidence in relation to the lookout incident. After summarising all of this evidence, his Honour gave the jury a warning as to how the evidence could be used. It is somewhat lengthy, but, given that this appeal concerns whether the appellant’s trial miscarried due to the admission of this evidence, I consider it necessary to set out the warning in full:

10. [50]

    No complaint was made about this direction at trial or in this Court.

Submissions on behalf of the appellant

1. [51]

   Mr Bellanto QC submitted that the trial judge erred in two ways. First, by finding that the evidence was relevant as context evidence and, second, by failing to exclude the evidence pursuant to ss 135 or 137 of the Evidence Act. It was submitted that the Crown’s reliance upon the decision in KJS v R was misplaced because the facts in that case were very different. The Court stated in that case that context evidence can be relevant on a number of bases, but none of them was present in this matter. Reliance was also placed on the decision in R v Young (1996) 90 A Crim R 80, where it was held that a single incident cannot provide meaningful context.

2. [52]

   It was further submitted that, contrary to the submission of the Crown, the evidence was not needed to explain why the complainant rolled away from the appellant immediately prior to Count 4.

3. [53]

   In circumstances where the evidence did not fit into any of the accepted bases on which context evidence is permitted to be adduced, it was submitted that the evidence was in fact relevant as tendency evidence despite the fact that the Crown did not rely upon it on that basis.

4. [54]

   It was noted that this Court observed in Norman v R (at [35]) that, where evidence of uncharged acts is led without a need to place the charged acts in a meaningful context, “…it is difficult to see what, if any, use the jury could have made of the evidence other than to engage in impermissible propensity reasoning.”

5. [55]

   The appellant’s second complaint was that, even if the evidence were admissible, it should have been excluded under s 137 of the Evidence Act. It was submitted that the trial judge failed to take into account a material consideration; namely, that the isolated and remote nature of the context evidence was such that its probative value was low. This is in contrast to what occurred in KJS v R. The appellant submitted that the trial judge did not consider the remoteness of the evidence in circumstances where there was a gap of at least two years and four months between Count 3 and the context evidence and a further gap of at least one year and two months between the context evidence and Count 4.

6. [56]

   It was further submitted that the trial judge failed to take into account the variance in age and similarity in conduct. This was said to be an error as the only purpose for context evidence is to address some fact in issue, not to bolster the evidence of a witness.

Submissions on behalf of the Crown

1. [57]

   The Crown relied upon the decisions in KJS v R and DJV v R. It was submitted that, on the basis of these authorities, the trial judge was correct to find that the gap in the offending conduct was relevant to the jury’s consideration. This was so for two reasons. First, without the context evidence, the first and second tranches of offending would potentially have been separated by a period of three years and six months. In this regard, the jury may have considered the second tranche of offences to be relatively isolated in time and thus harder to believe in the absence of the context evidence. Second, it was submitted that the context evidence places the two sequences into a more understandable chronology of events.

2. [58]

   It was further submitted that, although the context evidence alleged in KJS v R was more frequent and “habituating”, the essential issue in the appeal was that there would have been a gap in the charged conduct without an explanation had the context evidence been excluded. It was submitted that the reference in R v Young to the incapacity of one act to constitute context evidence should be limited to the facts of that case, in which a single incident preceded the charged conduct.

3. [59]

   It was submitted that there was no error in the trial judge’s failure to exclude the evidence pursuant to s 137 of the Evidence Act. The principal matter considered by his Honour was the time gap between the two sequences of offences.

4. [60]

   As for his Honour’s finding (extracted about that [40]) that he proposed to give clear and proper directions to the jury as how the evidence could be used, it was submitted that his Honour did in fact do this. The Crown Prosecutor placed reliance on that portion of his Honour’s summing up extracted above at [49] and submitted that the evidence of the other witnesses pertaining to the lookout incident undercut the complainant’s evidence and accordingly his credibility.

Consideration

1. [61]

   The determination of this appeal turns on whether the appellant’s trial miscarried due to the admission into evidence of the “lookout incident”. As McClellan CJ at CL observed in DJV v R (at 210 [10]):

2. [62]

   I turn first to consider the appellant’s primary submission that the evidence was not relevant. If indeed the evidence was not relevant, that would be the end of the matter. As Gleeson CJ, Gaudron, Gummow and Hayne JJ stated in Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 at (653 [6]):

3. [63]

   Section 55(1) of the Evidence Act relevantly provides:

4. [64]

   The trial judge was satisfied that the evidence of the lookout incident was relevant as context evidence. In so finding, his Honour relied upon a number of decisions of this Court concerning the admission of context evidence. Those decisions included KJS v R, Qualtieri v R, DJV v R and Norman v R.

5. [65]

   Consistent with the principles derived from these decisions, evidence of uncharged acts, such as the lookout incident, is potentially admissible to place the specific allegations in the indictment into context. But the particular evidence must go to an issue that has either arisen or will arise in the trial. It is not sufficient for the Crown simply to rely on all allegations made by a complainant that are not included in the indictment; the evidence must be capable of rationally affecting the probability of the existence of a fact in issue in the proceedings.

6. [66]

   His Honour extracted portions of the decision of McClellan CJ at CL (as his Honour then was) in DJV v R as follows (at 216 – 217 [28]):

7. [67]

   Although the trial judge did not expressly refer to [36] of DJV v R, it is to be noted that McClellan CJ at CL there observed:

8. [68]

   The trial judge also extracted paragraph [80] of the judgment in Qualtieri v R in his reasons. In summary, that paragraph sets out the steps to be taken when considering the admissibility of evidence of this nature. The first step is to identify the evidence and the purpose of the tender. If the evidence is not relied upon as tendency evidence but only as context evidence, then “it is first necessary to consider whether any issue has been raised in the trial which makes that evidence relevant.” The judgment goes on to state:

9. [69]

   The trial judge also had regard to the decision in Norman v R. That appeal concerned the admission of evidence of (non-sexual) domestic violence for the purposes of showing the relationship between the appellant and the complainant. Macfarlan JA (with whom Price and McCallum JJ agreed) observed at [26], in a passage also extracted by the trial judge in his reasons:

10. [70]

    His Honour also cited the decision in KJS v R in his reasons, although he did not extract any of it. That decision concerned an appeal from convictions on two counts of sexual assault upon a child, one offence said to have occurred in 2003/2004 and the other in 2009. Context evidence was adduced of conduct on the part of the appellant before Count 1 and between Counts 1 and 2. This evidence included the appellant getting in the bath with the complainant, similar assaults to those on the indictment and attempts to assault the complainant that did not occur because, when her mother was home, the complainant would tell the appellant loudly to get out of the room. The evidence was that the assaults were occurring almost every night closer in time to Count 2. The appellant submitted that the evidence was clearly being used as tendency evidence and should have been dealt with pursuant to ss 97 and 101 of the Evidence Act or excluded under s 137 of the Evidence Act

11. [71]

    In KJS v R, Hoeben CJ at CL identified at [34] a number of ways in which the evidence adduced was relevant as context evidence. Those bases were: to demonstrate a process of habituating the complainant to physical contact with the appellant so that Count 1 did not appear to have suddenly occurred, to better explain Count 1 and explain why the complainant did not resist, to place Count 2 in context so that it could be seen as the continuation and culmination of a consistent course of conduct over a period of years, rather than as an isolated attack, and to provide some explanation for the failure of the complainant to complain.

12. [72]

    It is to be accepted that none of the bases upon which the context evidence was identified by Hoeben CJ at CL at [34] in KJS v R as being relevant was present in this matter. Although the appellant relied upon this fact in support of his contention that the lookout evidence was inadmissible, I do not take Hoeben CJ at CL to be identifying the only bases upon which context evidence can be relevant and admissible, but rather merely the bases for relevance in that matter. His Honour went on to observe at [38]:

13. [73]

    The most common situation in which context evidence arises is to explain a failure by the complainant to complain about the offending conduct. That common scenario arose in R v Wickham (unreported, Court of Criminal Appeal (NSW), 17 December 1991). Gleeson CJ (with whom Crennan and Kiefel JJ agreed) cited R v Wickham in HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; [2008] HCA 16 (at 352 [6]) as a classic example of relevant context evidence. In that matter, the allegation was that a child’s father got into bed with her one night, had sexual intercourse with her and they then both went to sleep. There was evidence of similar activity beforehand and the child said that it was a “common occurrence”. Clearly, if the child had not been able to give evidence of what had happened beforehand and that it was a common occurrence, the jury would have gained the false impression that the sexual intercourse was an isolated incident and wondered why she did not react differently to what occurred.

14. [74]

    The fact that most of the decisions concerning context evidence involve cases where the evidence explains matters such as a lack of complaint and/or general “grooming” of a child complainant does not mean that context evidence is necessarily confined to such cases. The statements of principle derived from the decisions upon which the trial judge relied do not limit the admission of context evidence to the facts in those cases. Rather, those statements of principle confirm that the evidence, if relevant, is admissible, subject to any consideration of s 137.

15. [75]

    The trial judge’s reasons disclose that his Honour clearly had regard to the steps identified by this Court in Qualtieri v R. His Honour first identified the evidence. He then explained how it was relevant; namely, to provide a link between the two tranches of alleged offences. He noted that the lookout incident occurred mid-way between the two periods of time. His Honour observed that, if the evidence were not before the jury, they would have been left with an unrealistic or misleading picture as to the two series of apparently unconnected events. His Honour also referred to the fact that there was “considerable specificity” in relation to the evidence, although the eyewitnesses differed as to what in fact occurred. Consistent with the authorities to which his Honour referred, his Honour was satisfied that the lookout incident was relevant.

16. [76]

    It is to be accepted that the context evidence in the other cases upon which his Honour relied, and in particular KJS v R, was evidence of acts that occurred with far greater frequency than the isolated act here. It does not follow that the evidence was thus not relevant to a fact in issue at the trial.

17. [77]

    I am not satisfied that the decision in R v Young, relied upon by the appellant, is authority for the proposition that one incident alone is incapable of being relevant as context evidence. That decision is distinguishable on its facts. It is a decision of the Victorian Court of Appeal in 1996 prior to the enactment of the Uniform Evidence Act in that State. A child, referred to in the judgment as “H”, visited the appellant with other boys on a number of occasions. On the first occasion, H returned to collect his bag after the boys left. The appellant then kissed him whilst rubbing his genital area against him. H later went to the house again, at which time the appellant pinched him on his buttock. H visited him a third time, after which the appellant offered to drive him and another boy, “S”, home. When they entered the vehicle, which was a panel van, S sat in the front and H in the back. The appellant lay on H thrusting his pelvis at him.

18. [78]

    The first of these three incidents was not charged in the indictment. It was admitted as evidence of “guilty passion” and to provide evidence “of the setting and circumstances which led to the later visits by H”. The Court held that the evidence was not capable of proving “guilty passion” or “any kind of relevant relationship” and nor could its admission be justified “…as part of the necessary narrative to give context to those later events” (at 88-89). These observations were made on the facts in that case and do not stand as authority for the proposition that one uncharged act can never be admissible as context evidence.

19. [79]

    It is to be accepted that, as a general rule, the Crown faces a significant hurdle in establishing that one act, rather than multiple acts, is capable of meeting the threshold test of relevance as context evidence. But the evidence of the lookout incident was somewhat unusual. It was not confined to a bare allegation of one uncharged act made by a complainant in similar terms to the matters charged in the indictment. Rather, it was said to have been immediately followed by an act of physical assault by the child on the alleged offender witnessed by a number of other persons. Thus it can be seen that its probative value was in a very different category to that in R v Young.

20. [80]

    The appellant did not dispute the evidence of what occurred immediately after the alleged indecent assault at the lookout, although the evidence as to the precise circumstances of John’s assault on the appellant differed as between the various eyewitnesses. The evidence of the appellant’s wife and daughter was that John assaulted the appellant by hitting his back, John and his father described John hitting the appellant, and the Buddhist monk described it as a kick. The appellant disputed only the brief touching of the child’s penis that was alleged to have precipitated the assault. On the defence case, John was simply misbehaving. On the Crown case, John’s behaviour was consistent with animus towards the appellant. The jury may well have considered that it would be unusual for a child to assault an adult, who was a family friend, for no reason. I am satisfied that the evidence of the physical assault was relevant on its own in any event, in addition to being relevant as part of the surrounding circumstances of the allegation of the indecent assault at the lookout.

21. [81]

    The nub of the appellant’s complaint is that the evidence was only relevant as tendency evidence and thus should not have been admitted at the trial. It is to be accepted that if there was no other basis for the admission of this evidence than as tendency evidence, then it was wrongly admitted. I have already stated that I am satisfied that the evidence was relevant as context evidence for the purpose identified by the trial judge. No error has been identified in his Honour’s reasoning in this regard. Although I also accept that the evidence is capable of being relevant as tendency evidence, this does not assist the appellant’s argument in circumstances where I am satisfied that the evidence is also relevant as context evidence. It is a matter for the prosecution as to how they wish to rely upon evidence in its case. In this matter, in the exercise of prosecutorial discretion, the Crown elected not to adduce the evidence for a tendency purpose.

22. [82]

    “Tendency evidence” is defined in the Dictionary to the Evidence Act as meaning “evidence of a kind referred to in section 97 (1) that a party seeks to have adduced for the purpose referred to in that subsection” [emphasis added]. That is, it is defined by the purpose for which it is tendered: L'Estrange v R [2011] NSWCCA 89 at [59]. The Crown did not seek to have the evidence adduced for a tendency purpose, thus the fact that it was capable of constituting both tendency evidence and context evidence does not mean that it was wrongly admitted.

23. [83]

    There will no doubt be many cases in which the Crown relies upon similar incidents, which are not included in the indictment, as context evidence when the same evidence is also capable of being relevant as tendency evidence. It is for that reason that this Court has held that, in such cases, the trial judge is required to give a direction that the evidence cannot be relied upon in that way, as the trial judge did in this case (see [80] in Qualtieri v R extracted above at [68]).

24. [84]

    The appellant relied upon extracts from the transcript of the oral argument concerning the admissibility of the evidence on 3 and 4 August 2015 in support of an argument that the Crown did in fact rely upon the evidence for a tendency purpose. Even if that were to be accepted, there are three difficulties with that submission. His Honour did not admit the evidence on that basis, his Honour found that it was relevant on another basis (namely, context), and his Honour gave a direction not to use the evidence as tendency evidence.

25. [85]

    I am not satisfied that the trial judge erred in concluding that the evidence of the lookout incident was relevant to a fact in issue at the trial.

26. [86]

    I turn then to consider whether the trial judge erred in not excluding the evidence under s 137 of the Evidence Act. I have already extracted his Honour’s reasons for not doing so at [40] above. Section 137 of the Evidence Act provides that:

27. [87]

    “Probative value” is defined in the Dictionary to the Evidence Act as:

28. [88]

    As the High Court confirmed in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, assessment of probative value for the purposes of s 137 does not require evaluation of the credibility, reliability or weight of evidence, those being matters properly left to the jury if the evidence be admitted. The approach of this Court confirmed by the High Court in IMM v The Queen is that contained in R v Shamouil (2006) 6 NSWLR 228; [2006] NSWCCA 112 and R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121.

29. [89]

    “Unfair prejudice” in the context of s 137 has been held to mean a real risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the purpose of its tender: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 (at 325 [91]). As Mason P observed in Colby v The Queen [1999] NSWCCA 261 at [97] (citation omitted):

30. [90]

    In applying s 137 of the Evidence Act, the trial judge was required to balance the extent of the capacity of the evidence to support particular factual findings against the danger of unfair prejudice to the accused.

31. [91]

    The terms of s 137 are mandatory: a judge “must refuse to admit” the evidence after making the evaluative judgments concerning the probative value and prejudicial effect of the evidence. The court is not exercising any discretion when applying the section. Despite this, a number of decisions of this Court have described the judicial act as being analogous to the exercise of a discretion, such that a ground of appeal asserting error in the application of s 137 is to be governed by the principles in House v The King (1936) 55 CLR 499.

32. [92]

    In Vickers v the Queen (2006) 160 A Crim R 195; [2006] NSWCCA 60, Simpson J (as her Honour then was) (with whom James and Hall JJ agreed) observed at 210 [76]:

33. [93]

    In R v SJRC [2007] NSWCCA 142, James J (with whom Rothman and Harrison JJ agreed) observed at [34]

34. [94]

    In Can v The Queen [2007] NSWCCA 176, James J (with whom Giles JA and Harrison J agreed) stated at [43]:

35. [95]

    In R v Arvidson (2008) 185 A Crim R 428; [2008] NSWCCA 135, Beazley JA (as her Honour then was), with whom Johnson and McCallum JJ agreed, observed at 433 [27]:

36. [96]

    In Abbosh v the Queen, Bene v The Queen [2011] NSWCCA 265, Johnson J (with whom Bathurst CJ and James agreed) stated at [70]:

37. [97]

    A different approach was taken by this court in Riley v The Queen [2011] NSWCCA 238. McClellan CJ at CL, with whom Hoeben JA (as his Honour then was) and Grove J agreed, stated at [161] – [162]:

38. [98]

    The weight of authority in this Court is that I would approach the determination of this issue on House v The King principles. Despite this, the appellant submitted that this question should be considered consistent with the principles in Warren v Coombes. I do not consider it necessary to resolve any conflict as to whether the error contended for in this Court is to be assessed consistent with Warren v Coombes or whether the principles in House v The King apply. This is because I am not satisfied that error has been established in the trial judge’s consideration of s 137 of the Evidence Act whichever approach is taken.

39. [99]

    Despite submitting that the appeal should be considered consistent with the principles in Warren v Coombes, the appellant also identified three errors based on the principles in House v The King.

40. [100]

    The first alleged error is his Honour’s conclusion that the evidence was relevant because it supported the evidence of the complainant’s sister. His Honour made no finding in this regard. To the extent that his Honour may have made such a comment during oral argument and noted the Crown’s submission in his reasons, that is not relevant to the question of error in his Honour’s reasons

41. [101]

    The second alleged error is his Honour’s reference to the test for relevance rather than “significant probative value” in the passage extracted above at [40]. I do not accept that a fair reading of his Honour’s reasons discloses any error in this regard. Although it is to be accepted that his Honour appears to have dealt with ss 55 and 137 in a somewhat compendious manner, his Honour clearly had regard to both sections. His Honour described the evidence as having “significant probative value”. Although his Honour expressly referred to the statutory test for relevance, he did not also go on to state the statutory test for significant probative value. Despite this, his Honour expressly stated that he was satisfied that the evidence had significant probative value and that he was not satisfied that any prejudice could not be cured by an appropriate direction to the jury.

42. [102]

    The third alleged error is said to be the trial judge’s failure to have regard to a material consideration, being the isolated nature of the context evidence. I have already addressed this issue above at [76] – [79]. His Honour was clearly cognisant of the fact that there was only one incident but, in reliance upon the authorities cited, was satisfied that it had significant probative value. As for the alleged error of failing to have regard to the lapse of time between Count 3 and the lookout incident and again between the lookout incident and Count 4, I note that it was precisely to fill in the gap between Counts 3 and 4 that his Honour ruled that the evidence had significant probative value.

43. [103]

    This third error for which the appellant contends is, in effect, a complaint that the trial judge ought to have exercised the balancing exercise differently. Not only am I not satisfied that none of the three alleged errors is established, nor am I satisfied that the judge’s decision was wrong for any other reason.

44. [104]

    The evidence had significant probative value for the reasons I have set out above at [80]. The only unfair prejudice identified was the risk that the jury would impermissibly use tendency reasoning in relation to the evidence. The trial judge gave detailed directions warning against such a process of reasoning. His Honour also emphasised that none of the eyewitnesses, except for John, saw the alleged indecent touching.

45. [105]

    I extracted the lengthy directions that his Honour gave as to how this evidence was to be used by the jury at [42] and [46]. This Court has observed on numerous occasions that it is to be presumed that the jury will follow directions. As McHugh J observed in Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 at 425 [31]:

46. [106]

    That is not to say that there will not be trials in which the evidence is of such a prejudicial nature that it might be impossible for a jury to follow directions as to how the evidence is to be used. Despite this, the observations by Button J in R v Adams (No 2) [2016] NSWSC 1359 at [46] – [58] are certainly not applicable in this case.

47. [107]

    For these reasons I would dismiss the appeal.