R v Zaidan

1. [1]

   WARD ACJ: The respondent (Michael Zaidan) was charged on a joint indictment with ten counts of sexual offences: three counts of offences between 31 December 1996 and 1 January 1998 in relation to a male child (to whom I will refer by the pseudonym “A”) who was aged 9 years at the time of the offending, and seven counts of offences on dates in varying ranges from 1 September 1998 through to 31 May 1999 in relation to a female child (to whom I will refer by the pseudonym “B”), who was aged 12 at the time of the earlier offences and 13 at the time of the later offences. The respondent’s trial on that joint indictment was listed to commence on 29 January 2024.

2. [2]

   In January this year, the Crown served a notice of intention to adduce tendency evidence. An amended notice (but bearing the same date) was subsequently served. That amended notice stated, relevantly, that:

3. [3]

   The substance of the tendency evidence was identified as that contained in specified paragraphs of the respective complainants’ statements and, in the case of “B”, her evidence at an earlier trial (involving the complaints of offending conduct against “B” only) that had been aborted due to the disclosure (through a transcript irregularity) to the parties of a conversation of the jury. It was after media reporting of that trial that “A” first reported his allegations to the police and the respondent was then charged in relation to those allegations.

4. [4]

   In August this year, the trial judge heard an application by the Crown to lead tendency evidence (which was opposed by the respondent) and an application by the respondent for the severance of the counts as between the respective complainants. The trial judge gave ex tempore reasons on 18 August 2023, concluding that the tendency application should be dismissed and said that it must follow that the order sought for a separate trial should be made (on the understanding that one trial would be listed to follow the conclusion of the other). The January 2024 commencement date for the first of the (now to be separate but consecutive) trials has been maintained and separate indictments are to be prepared. A readiness hearing has been listed for 25 January 2024.

Appeal

1. [5]

   The Director of Public Prosecutions (NSW) (Director) has appealed both from the dismissal of the Crown’s application to adduce tendency evidence at a joint trial of the respondent on charges of sexual offending against the two complainants (the tendency ruling) and the trial judge’s consequential ruling to sever the joint indictment and to order separate trials in relation to each complainant (to run consecutively from 29 January 2024) (the separate trial ruling).

2. [6]

   The appeal is brought pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) in relation to the tendency ruling and pursuant to s 5F(2) of that Act in relation to the consequential separate trial ruling.

3. [7]

   The grounds of appeal are straightforward:

Charges

1. [8]

   Each of the counts against the respective complainants relates to a child sexual offence committed against a child between the ages of nine and 13 with whom the respondent had contact alone, at or near his shoe repair shop at Condell Park, NSW, at times between December 1996 and May 1999.

2. [9]

   In relation to “A”, there are two charges of assault with act of indecency (contrary to s 61M(2) of the Crimes Act 1900 (NSW) (Crimes Act)) (Counts 1 – 2) and one charge of sexual intercourse (contrary to s 66A of the Crimes Act) (Count 3). In relation to “B”, there are six charges of assault with act of indecency (contrary to s 61M(1) of the Crimes Act) (Counts 4-8, 10) and one charge of sexual intercourse (contrary to s 66C(1) of the Crimes Act) (Count 9). Relevantly, the alleged conduct in the case of both complainants included an instance of actual or attempted anal penetration.

Tendencies relied upon

1. [10]

   As apparent from the extract above of the Crown’s amended tendency notice, the Crown relies on four tendencies of the respondent: tendencies to act in a particular way (grooming children while working at his shoe repair shop; sexually touching or fondling children between the ages of 9 and 13 when they visited him alone at his shoe repair shop; and engaging or attempting to engage in penetrative sexual intercourse with children between the ages of 9 and 13); and the tendency to have a particular state of mind, namely to have a sexual interest in both male and female children between the ages of 9 and 13.

2. [11]

   The state of mind tendency applies to all of the counts. The tendency to act in the three ways identified applies differently to the various counts, as will be explained in due course.

3. [12]

   As the respondent was initially arraigned on 19 December 2019 on an indictment solely concerning “B”, the Crown conceded before the trial judge that the amendments to the tendency provisions of the Evidence Act 1995 (NSW) (Evidence Act) that were introduced by the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW), which came into force on 1 July 2020, did not apply. Accordingly, the Crown’s application to adduce tendency evidence was determined pursuant to the statutory provisions in force at the time of the respondent’s arraignment in December 2019.

4. [13]

   Relevantly, s 97 of the Evidence Act provided at that time:

5. [14]

   In relation to tendency evidence adduced by the prosecution in criminal proceedings, s 101 provided relevantly that:

6. [15]

   The Dictionary to the Evidence Act defined “probative value of evidence” to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.

Summary of the Crown case

1. [16]

   The Crown case, as outlined in the Crown Case Statement that formed part of the Crown Tendency Bundle before the trial judge, is summarised in the Director’s submissions in this Court, by reference to the aspects of tendency relied upon by the Crown, broadly as follows. The Director identified in oral submissions those parts of the complainant’s statements, and of “B”’s evidence at the aborted trial, that are relied on as evidence of the three tendencies to act in a particular way (i.e., grooming; sexual touching; and actual or attempted penetration). The asserted state of mind tendency, as already noted, is relied on for each of the counts.

2. [17]

   In 1997, the time of the alleged offending, “A” was 9 years old and the respondent was 48 to 49 years old. A few times a week, “A” went to the Condell Park shops, where the respondent operated a shoe repair shop. Each time, “A” was wearing his school uniform. The respondent often gave “A” lollies and chocolates in his shop.

3. [18]

   Count 1 (assault with an act of indecency, contrary to s 61M(2) of the Crimes Act) relates to an occasion when “A” collected the bathroom key from the respondent’s shop; the respondent followed him into the bathroom and closed the door; the respondent put his left arm around “A”’s shoulders, and placed his right hand inside “A”’s underpants on to his penis, which he stroked. (The Crown relies on the “sexual touching” tendency on this count.)

4. [19]

   Count 2 (assault with an act of indecency, contrary to s 61M(2) of the Crimes Act) relates to an occasion when “A” entered the respondent’s shop in response to the respondent calling out to him from the shop; the respondent gave him lollies, then placed his left arm around “A”; the respondent put his right hand inside “A”’s school shorts, and touched and grabbed his bottom and rubbed underneath “A”’s bottom; the respondent then touched “A”’s testicles and penis, and touched his own penis. (The Crown relies on the “grooming” and “sexual touching” tendencies on this count.)

5. [20]

   Count 3 (sexual intercourse contrary to s 66A of the Crimes Act) relates to an occasion when “A” went to the respondent’s shop to get lollies; the respondent took the complainant to the boys’ toilets behind the store; inside the toilet, the respondent put his left hand down the back of “A”s shorts; “A” felt something go inside his anus, and saw the respondent touching himself on his penis; and “A” felt immediate pain. “A” screamed and cried, and ran home. “A” was unsure whether he was penetrated with the respondent’s penis or his finger. (The Crown relies on the “grooming” and “actual or attempted penetration” tendencies on this count.)

6. [21]

   In the period from September 1998 to May 1999, the time of the alleged offending, “B” was 12 to 13 years old and the respondent was 50 years old. Every Thursday afternoon after school, “B” went to the Condell Park shops to do grocery shopping with her mother. Each time, “B” was wearing her school uniform. Although “B” was initially supervised by her mother when they visited the respondent’s shop, after a few weeks “B” stayed with him in the shop while her mother did the grocery shopping. The respondent bought cake for “B”, gave her money and gave her leftover keys (which “B” was collecting). The Crown relies on this conduct as “grooming”. The conduct includes an uncharged act (see [12] of “B”’s statement 4 March 2019) where the complainant says that the respondent kissed her on the lips when she was in an area partially obscured from view.

7. [22]

   Count 4 (assault with an act of indecency, contrary to s 61M(1) of the Crimes Act) relates to an occasion (between 1 September 1998 and 31 October 1998 when “B” was 12 years old) when the respondent, in an area of his shop obscured from view from outside, kissed “B”, covering her whole mouth with his lips and putting his tongue inside her mouth and moving it around, while cupping “B”‘s neck and chin in his hands. (The Crown relies on the “sexual touching” tendency on this count.)

8. [23]

   Count 5 (assault with an act of indecency, contrary to s 61M(1) of the Crimes Act) relates to an occasion (between 1 and 30 November 1998 when “B” was 12 years old) when the respondent, again in an area of his shop obscured from view from outside, vigorously kissed “B”, and moved his tongue around the inside of her mouth; cupped her neck with his hand, and moved her body closer to him; thrust his groin and erect penis towards her, and rubbed his penis on her vagina in a circular and thrusting motion on the outside of her clothing. (The Crown relies on the “sexual touching” tendency on this count.)

9. [24]

   After the above incident, the complainant recalled another six or seven times when this same behaviour took place, always on a Thursday while her mother did the grocery shopping. Those, and an incident when “B” recalls the respondent stood behind her and bent her over, with one hand on her shoulder and the other in the hip area, were uncharged acts (see [16]-[17] of “B”’s 4 March 2019 statement.)

10. [25]

    Count 6 (assault with an act of indecency, contrary to s 61M(1) of the Crimes Act) relates to an occasion (between 1 and 31 March 1999 when “B” was 13 years old) when the respondent, again in the area of his shop obscured from view from outside, vigorously kissed “B”, and moved his tongue around the inside of her mouth; slid his hands down to her hips, pushed her body close to him, and rubbed his erect penis on her vagina outside her clothing. (The Crown relies on the “sexual touching” tendency on this count.)

11. [26]

    Count 7 (assault with an act of indecency, contrary to s 61M(1) of the Crimes Act) relates to an occasion (between 1 March and 30 April 1999 when “B” was 13 years old) when the respondent took “B” to an area near his workshop bench, and bent her body over with one hand on her hip; moved his hand, unzipped his pants and rubbed his erect penis on her bottom outside her clothing. (The Crown relies on the “sexual touching” tendency on this count.)

12. [27]

    The Crown notes that there were other uncharged acts with incidents of the respondent kissing her and rubbing his genitals on her while kissing her and while she was bent over in front of him, relying on the “sexual touching” tendency in this regard (see [20] of “B”’s 4 March 2019 statement).

13. [28]

    Count 8 (assault with an act of indecency, contrary to s 61M(1) of the Crimes Act) relates to an occasion (between 1 and 30 April 1999 when “B” was 13 years old) when the respondent (who was mostly obscured from view by his shop counter) pulled down the front of “B”’s pants, and rubbed her skin on the mons pubis area in a circular motion with two fingers, leant forward, and kissed her twice on the same area. (The Crown relies on the “sexual touching” tendency on this count.)

14. [29]

    Count 9 (sexual intercourse contrary to s 66C(1) of the Crimes Act) relates to an occasion (between 1 April and 31 May 1999 when “B” was 13 years old) when the respondent, in the same part of the shop as for Count 8, pulled down the front of “B”’s pants, and touched her skin on the mons pubis area using two fingers; with one finger, then touched the inside of her labia majora and her clitoris, before withdrawing his hand and kissing her on the mons pubis area on her pubic hair. (The Crown relies on the “sexual touching” and “actual or attempted penetration” tendencies on this count.)

15. [30]

    Count 10 (assault with an act of indecency, contrary to s 61M(1) of the Crimes Act) relates to an occasion (between 1 and 31 May 1999 when “B” was 13 years old) when the respondent took “B” into a locked storeroom near his shop, and locked the door behind them; pulled her pants down from behind and bent her down in a 90 degree angle; unzipped his pants and took his penis out; vigorously rubbed his erect penis on her bare bottom, and became rougher and rougher as he tried to penetrate her anus with her penis. “B” was terrified and left the storeroom, after unlocking the door. (The Crown relies on the “sexual touching” and “actual or attempted penetration” tendencies on this count.)

The trial judge’s reasons

1. [31]

   The trial judge, after describing the respective counts, noting the applicable statutory provisions and referring to the Crown’s contention that the evidence in relation to the respective counts was cross-admissible and as to the asserted tendencies (namely, the asserted tendencies to act in a certain way and to have a particular state of mind), recorded that the Crown had accepted in oral submissions that “leading evidence from two unrelated children will inevitably lead to prejudice flowing to the accused”. The trial judge went on to say that the Crown had submitted that, with the protection of appropriate directions to the jury, the probative value of the evidence substantially outweighed “the danger of that unfair prejudice which it concedes will arise”.

2. [32]

   The Director says that the trial judge has here misstated the Crown concession that was made. The Director confirms that the Crown conceded during argument that leading tendency evidence concerning two unrelated children would be prejudicial to the respondent (as was also conceded on the appeal) but she says that the Crown did not concede that “unfair” prejudice would arise. The Director points to the Crown’s submission to the trial judge that the prejudice would be mitigated by careful directions and the Crown’s written submissions that there was no real risk that the jury would use the tendency evidence “improperly in some unfair way” (there referring to The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 (Bauer) at [73] per Kiefel CJ, Bell, Gageler, Keane, Gordon and Edelman JJ). The debate before the trial judge makes that clear (see 18/8/23 at T 5.15ff). What the Crown was conceding was that the form of s 101 of the Evidence Act which applied contained the “substantially outweighs” test. The trial judge’s ex tempore reasons appear to have misrecorded what was said in that regard.

3. [33]

   The trial judge then summarised both the Crown’s submissions and those of the respondent. Unfortunately, the respondent’s written submissions included a number of paragraphs obviously drawn from submissions relating to a different matter (as is obvious from [26] of those submissions, which referred to the asserted tendency as being that young people who knew each other got drunk at a pub and sexual intercourse occurred, and referred to the fact in issue being that of consent, and [34], which stated that the accused’s case was to be fought on the issue of consent). The trial judge himself recognised this when the application first came before him on 10 August 2023 (see 10/08/23 at T 1.28) but nevertheless the trial judge included reference in the ex tempore judgment to the respondent’s counsel’s statement that the case was to be fought on the issue of consent. Clearly, in the present case no issue of consent could arise given the age of the children when the offending conduct is alleged to have occurred. On 10 August 2023, the respondent’s counsel had accepted that this was a slip and had indicated that this was probably just her “template”.

4. [34]

   Insofar as the trial judge approached the question of the tendency evidence on the basis that the case before him was analogous to that considered in R v Stevens [2011] NSWDC 81 (Stevens) (which the trial judge cited) as a case in which consent was the fact in issue, this would clearly have been in error. However, it appears more likely that the trial judge was here simply recording the respondent’s submissions in this regard (with their erroneous references to the issue of consent). The unfortunate error in the respondent’s counsel’s submissions is, however, exacerbated by the fact that it is not always clear from the trial judge’s reasons what is a recording of the submissions made and what is a finding by the trial judge.

5. [35]

   The trial judge noted the respondent’s acknowledgement that it was not necessary to establish striking similarities, closely similar behaviour or unusual features. The trial judge then said (it is unclear whether the trial judge was here adding his own comments or continuing to record the respondent’s submissions) that there must be a tendency to act in a particular way that is relevant to the conduct the subject of the charge; and that it is unnecessary that there be an established or underlying unity of pattern of conduct or modus operandi but that there must ordinarily be some feature that links the two together.

6. [36]

   The trial judge also noted (apparently adopting the respondent’s supplementary written submissions at [14] with the reference to Bauer at [58]) that evidence of an offence against one complainant proved no more than that the accused has committed a sexual offence against the first complainant “which is not ordinarily significantly probative” and noted that he must take into account any ameliorating effect of tendency directions.

7. [37]

   The trial judge said that in the present case there was a real risk that, notwithstanding the directions to the jury, the jury would see the “appellant [sic] as a sexual deviant who had no credibility in denying the allegation against him, was not deserving of the benefit of any reasonable doubt and was the sort of person who was likely to have committed the offence against him”.

8. [38]

   The trial judge went on to record various submissions made for the respondent’s counsel, including an apparent reference to [42] of the respondent’s written submissions in chief to the effect that “the predominant danger is that the jury will misuse the evidence by reason the accused must be guilty if multiple complaints by multiple complainants are tried together”.

9. [39]

   The trial judge said (at 18/08/23; T 11-12) that:

10. [40]

    There is some difficulty (not helped by obvious errors in transcription) in discerning what is meant by the above statement. If the conclusion by the trial judge on the issue of the admissibility of the tendency evidence was based on the lack of “sufficient similarities to establish underlying unity and a pattern of conduct or modus operandi or similar offending”, then this appears to apply the test expressly disavowed in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [41] (Hughes) (see below) (and would be contrary to the trial judge’s earlier recognition of the position in Hughes). What seems clear enough, however, is that the trial judge’s determination that the tendency application should be dismissed is based largely on the reasons put forward in the respondent’s submissions because his Honour followed the above words with the conclusion that (at 18/08/23; T 12):

Jurisdictional threshold and standard of review

1. [41]

   The Director accepts that while there is no requirement for leave to appeal pursuant to s 5F(3A) of the Criminal Appeal Act in relation to a tendency ruling or pursuant to s 5F(2) in relation to the separate trial ruling, the right conferred on the Director by s 5F(3A) to appeal against a decision or ruling on the admissibility of evidence is preconditioned on the decision or ruling eliminating or substantially weakening the prosecution’s case. It is noted that there is no such threshold in s 5F(2), although the Director accepts that the question of the separate trial ruling (as a consequential ruling to the tendency ruling) will follow the disposition of the appeal on the tendency ruling in any event.

2. [42]

   Both parties accepted that the standard of review in relation to the tendency ruling (as a ruling on the admissibility of evidence) is the Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 (Warren v Coombes) “correctness” standard including on an interlocutory appeal (rather than the House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 (House v The King) standard requiring patent or latent error within the House v The King categories of error to be established in relation to the first instance decision) (see Stenner-Wall v R [2023] NSWCCA 163, Button J at [75], citing Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 (RDT), Basten JA at [4]-[24]). That said, both parties then made submissions addressing whether there was House v The King error, the Director submitting that reviewable error is established on either standard.

Ground 1

1. [43]

   The Director submits that the tendency evidence has significant probative value for the following reasons.

2. [44]

   First, that each of the tendencies to act (grooming, sexual touching and attempted or actual penetration) is inferentially in furtherance of the tendency to have a particular state of mind (namely a sexual interest in children aged 9 to 13), noting that in McPhillamy v The Queen [2018] HCA 52 at [27]; (2018) 361 ALR 13 (Kiefel CJ, Bell, Keane and Nettle JJ) considered that it is the tendency to act on such a sexual interest that will generally give tendency evidence its probative value in matters involving sexual assault.

3. [45]

   Second, it is said that the significant probative value of the tendency evidence flows from the similarities in the circumstances in which the offending occurred. The circumstances in the present case which the Director argues demonstrate “common features of or about the offending” and in turn demonstrate “a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true” (adopting the language in Bauer at [58]) are identified as being: that the offending occurred at a similar time, in the late 1990s; that the offending occurred inside the respondent’s shoe repair shop or in a private location not far from the shop; that the respondent encouraged visits from both complainants, by providing treats and/or lollies, and, for “B”, old keys for her key collection; that the offending in both cases involved the respondent pulling down or maneuvering the children’s clothes and underwear, and fondling their genitalia while they stood in his shop; that the most serious offending (the actual or attempted anal penetration) involved penetration or attempted penetration from behind; that both children went to the same school near the respondent’s shop and were wearing school uniforms at the time of each incident; that both children were unaccompanied by parents, other adults or other children at the time of each incident; and that the offending involved “clandestine, surreptitious touching” of the children’s genitalia (regardless of gender). (In oral submissions in this Court, at AT 9.03, the counsel for the Director accepts that the reference to “surreptitious” touching is probably tautologous.)

4. [46]

   The Director submits that the above circumstances strongly support the significant probative value of the “tendencies to act” stated in the tendency notice, and their foundational “state of mind” tendency (i.e., the tendency to have a sexual interest in children aged 9 to 13). The Director argues that it follows that each of the two considerations identified in Hughes at [41] as relevant to the determination of whether tendency evidence has significant probative value is satisfied; namely, that the evidence supports the existence of the asserted tendencies, and the tendencies make more likely the facts making up the charged offences. The Director submits that the circumstances of the offending strongly support both the asserted tendency to have a sexual interest in children, and a willingness to act on that sexual interest through a pattern of sexualised behaviour inside the respondent’s shoe repair shop or in a private location not far from the shop, when the child complainants were alone with the respondent. Emphasis is placed on the brazenness of the offending conduct in that it took place where there was the opportunity for detection (and an obliviousness to the risk of detection) akin to the compelling similarity the High Court saw to the offending conduct in Hughes notwithstanding differences in the actual nature of the sexual acts themselves (see AT 6.30).

5. [47]

   The Director contends that the respondent’s criticisms of the asserted tendencies on the application before the primary judge do not detract from the strength of the link between the separate allegations of both complainants, or the significant probative value of the tendency evidence as a result of that link.

6. [48]

   Thus, it is submitted that the evidence has significant probative value and that the trial judge’s ruling that the tendency evidence did not have significant probative value was erroneous. The Director maintains that, without the tendency evidence, the Crown case is inevitably substantially weakened, and the jurisdictional threshold in s 5F(3A) is met.

7. [49]

   If it be necessary to identify House v The King error, the Director points to: the trial judge’s reasoning as to the lack of “sufficient similarities to establish underlying unity and a pattern of conduct or modus operandi or similar offending such as to constitute tendency” shows that the trial judge acted upon a wrong principle (misstating the respondent’s reference to R v Hughes [2015] NSWCCA 330 at [34]); the suggestion that the trial judge determined the application on the erroneous basis that “the accused’s case is to be fought on the issue of consent” and considered Stevens to be an apposite case (said to show that the trial judge acted upon a wrong principle and took an irrelevant matter into account); the trial judge’s statement that “these cases of alleged sexual offending are particularly peculiar that are likely to arouse prejudice” and reference to “multiple complaints by multiple complainants” (said to be a mistake of fact if, by this, the trial judge was considering the offending to be “particularly peculiar” and as involving multiple complainants); and the reference to other charges in the Local Court of which the respondent had not been convicted (said to be an irrelevant and factually incorrect submission).

8. [50]

   Further, the Director complains that the trial judge’s path of reasoning to the rulings is not exposed (the ex tempore reasonings not distinguishing between submission and actual findings). The Director argues that the trial judge misstated the respondent’s submissions in relation to the test under s 97, and then applied the wrong principle; and says that, absent any exposure of the trial judge’s reasoning process, the rulings are likely also to be infected by latent error.

9. [51]

   The respondent submits that it was open to the trial judge to find that the tendency evidence did not have significant probative value. In this regard, the respondent relies on the submissions made before the trial judge as to the lack of a linking feature combined with the high level of generality expressed in the Crown’s tendency notice, and a difference in the context of the offending, which it is submitted results in a lack of significant probative value.

10. [52]

    As to the tendencies themselves, the respondent (at AT 15.07ff) says that the evidence of “grooming” may at its highest indicate a tendency to groom the individual complainants but does not indicate a general tendency. It is noted that the evidence is that “A” was offered lollies when he was in the shop and that “B” actually went to the shop to get old keys (they were not offered to her as a reward as part of grooming) but in any event these are simply two examples of children going to the shop over a period of years. The respondent argues that this would hardly constitute a tendency to groom. The respondent maintains that at its highest the evidence sought to be led as tendency evidence may make out a tendency to have an interest in each of the complainants but that it does not make out a general tendency to act in that way.

11. [53]

    As to the “sexual touching” tendency, the respondent says that this is a very general and generic description of the offending (such as the sexual touching occurring when they would visit him alone in the shoe repair shop or in a private location). The respondent argues that these are not the types of offences people commit in public.

12. [54]

    As to the actual or attempted penetration tendency, the respondent says that, again, this simply describes an offence. As to the state of mind tendency it is submitted that to have a sexual interest in both male and female children between the ages of 9 and 13 does not add anything further to the description of the tendency.

13. [55]

    As to the circumstances to which the Director has pointed as demonstrating the common features of the offending (and the tendency to act in a particular way), the respondent submits that the various matters relied upon do not inform or advance the tendency (see AT 15-17). It is said that: the timing of the offences occurring in the late 1990s does not advance the tendency; that the location of the offending similarly does not advance the tendency (because these offences occur in areas that are private); and that various of the other circumstances relied on simply describe the offences charged.

14. [56]

    The respondent argues that in respect of each complainant the tendency evidence might be sufficient to establish a tendency that he has an interest in that particular complainant but that this would not lead to the cross-admissibility of that tendency evidence in respect of the offences alleged against the other complainant (see AT 18.25ff).

15. [57]

    In essence, the respondent’s argument is that the evidence lacks the specificity, and is of too high a generality, to have significant probative value. The respondent also attaches significance to the difference between the complainants, describing “A” on the one hand as an undeveloped male, pre-teen; and “B” as a young girl, who on her evidence was commencing puberty (“B”’s 4 March 2019 statement at [12] places the incidents occurring just before she started menstruating in late September or early October 1998).

16. [58]

    Insofar as the Director has argued that there were various House v The King errors, the respondent submits that: the trial judge “referenced and engaged with the appropriate statutory provisions and precedential questions” and demonstrated command of the respondent’s submissions, the respondent referring in this context to the grammatical and syntactical errors in the transcript of the ex tempore judgment.

17. [59]

    As to the argument that the trial judge mistook the facts which then caused him to act upon a wrong principle and to take an irrelevant consideration into account (by reference to the respondent’s submissions as to consent), the respondent says that “human error occurred and was addressed at the first opportunity by counsel” and submits that consent was not a central consideration to the trial judge’s determination in this case and his reference to consent and Stevens should not “defeat” the judgment.

18. [60]

    As to the reference by the Director to the passage where the trial judge refers to multiple complaints by multiple complainants, the respondent says that it is clear, on a reading of the judgment, that the trial judge was “summarising back” the respondent’s case, and no mistake of fact was made (the respondent again highlighting that this was an ex tempore judgment).

19. [61]

    As to the reference by the trial judge to the charges that had run in the Local Court, the respondent says that nothing in the judgement leads to the inference that the trial judge’s conclusion turned on this point or even that it was taken into account. The respondent submits that the highest the point can be taken is that the trial judge noted that this was a point raised by the respondent as to why individual consideration is important.

20. [62]

    Finally, with respect to latent error, the respondent submits that whether the reasoning is clear or not is not relevant to the test of latent error; rather the appellant is required to show how the outcome was “unreasonable or plainly unjust” and that while the particular error cannot be pointed out, it is clear “a substantial wrong has in fact occurred”. The respondent submits that there is no such latent error.

Ground 2

1. [63]

   As to ground 2, the Director contends that the trial judge erred in determining that the probative value of the tendency evidence did not substantially outweigh the danger of unfair prejudice. The Director, as noted above, has identified a misstatement by the trial judge of the Crown’s concession as to prejudice (see above) and complains that there is little, if any, exposure of the trial judge’s path to reasoning to the relevant ruling in the judgment (indicative, it is said, of latent error in reasoning).

2. [64]

   The Director argues that it is not correct to say that the probative value of the tendency evidence would not substantially outweigh the danger of unfair prejudice. It is submitted that the case is relatively straightforward, involving allegations of sexual conduct by the respondent towards two unrelated children in the late 1990s. The Director submits that there is no particular feature of the tendency evidence that would give rise to the risk of it being given disproportionate weight by the jury. The Director says that the evidence is not such that the jury’s assessment of it would be clouded by the jury’s emotional response to it, and points out that the evidence does not involve a “raft of uncharged conduct stretching back” over many years (here referring to Hughes at [17]).

3. [65]

   The Director submits that the prejudice to the respondent from adducing the tendency evidence would be capable of mitigation by appropriate directions; and hence that there is no risk in this case that the jury would use the evidence “improperly in some unfair way”, that could not be mitigated by directions (referring to Bauer at [73]).

4. [66]

   The respondent submits that there is always an unfair prejudice in the type of evidence here being considered (AT 19.25); in other words that there is an inherent risk of prejudice. The respondent argues, for example, that the admission of the evidence of “B” in the trial against “A” would carry the danger that it would strengthen the case against “A” in an unfair way.

5. [67]

   After dismissing the Crown’s tendency application, the trial judge said that it must follow that the order for a separate trial sought by the accused should be made (his Honour also referring to the consequence being that one trial will be listed to follow the conclusion of the other trial). This Court was informed that the matter had been listed for consecutive trials in relation to each complainant commencing 29 January 2024 (AT 23.13-18). To the extent necessary, if the appeal is allowed in whole or part, the Director also seeks a consequential order that the separate trial ruling be set aside so that the tendency evidence can be led at a joint trial of all ten counts, involving the allegations of both complainants.

6. [68]

   The Director indicated in submissions that a more nuanced order could be made if the Court considered that only part of the tendency evidence should be admitted.

Determination

1. [69]

   As noted above, there was agreement between the parties that the appellate standard of review as to the admissibility of tendency evidence is the Warren v Coombs “correctness” standard. That concession was correctly made. In Bauer, the High Court (Kiefel CJ, Bell, Gageler, Keane, Gordon and Edelman JJ) said at [61]:

2. [70]

   This approach was applied by Basten JA in RDT, who at [18] noted the High Court “saw no reason to distinguish between the review of a judgment as to the probative value of tendency evidence on an appeal against a conviction and on an appeal from a preliminary judgment as to admissibility”.

3. [71]

   In order to have significant probative value the evidence does not need to have striking similarity. In R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75, Beazley JA, as Her Excellency then was, (with whom Buddin J and Barr AJ agreed) said (at [79]) that “[t]he authorities are clear that for evidence to be admissible under s 97 there does not have to be striking similarities, or even closely similar behaviour”, there contrasting the position with coincidence evidence. In that case, the evidence sought to be relied upon (which her Honour accepted was capable of rationally affecting the assessment of the probability that the accused had engaged in the conduct alleged and had a sexual interest in so doing) was conduct towards students who were boarders and who were vulnerable because they were homesick or did not fit in with the normal pattern of school life in various ways. Her Honour considered that the evidence had significant probative value in the determination of the question whether the individual allegations should be accepted.

4. [72]

   In Hughes, the High Court accepted (at [2]) that “… proof that a man of mature years has a sexual interest in female children aged under 16 years (“underage girls”) and a tendency to act on that interest by engaging in sexual activity with underage girls opportunistically, notwithstanding the risk of detection” was capable of having significant probative value on his trial for a sexual offence involving an underage girl in which the complainant’s evidence of the conduct the subject of the charge was in issue. Their Honours said that evidence which may be significantly probative for the purposes of s 97(1)(b) of the Evidence Act is not limited to evidence exhibiting the features of evidence satisfying the common law concepts of “underlying unity”, “pattern of conduct” and “modus operandi”.

5. [73]

   The High Court said at [32] in Hughes that “[a]n adult’s sexual interest in young children is a particular state of mind, proof of which [on the trial of a sexual offence against a young child] may have the capacity to have significant probative value”. At [38], in a passage to which the Director here referred, their Honours said:

6. [74]

   At [41], their Honours went on to say that:

7. [75]

   Their Honours considered that the probative value of the evidence in that case lay in proof of the tendency to act on the sexual attraction to underage girls, notwithstanding the evident risks; and said that the fact that the appellant expressed his sexual interest in underage girls in a variety of ways did not deprive proof of the tendency of its significant probative value (at [63]).

8. [76]

   In my opinion, the tendency evidence here sought to be relied upon has significant probative value in establishing a tendency on the part of the respondent not only to have a sexual interest in underage children but also to act upon that sexual interest in the particular ways the subject of the tendency evidence. The fact that the complainants are not of the same gender (and not at the same stages of development towards puberty) does not alter this conclusion. Having a sexual interest in children, which is acted upon, is a specific tendency. Of particular relevance in this regard is that the offending conduct included for both children attempted or actual anal penetration. That, coupled with the evidence of a tendency to groom children who came to his shop and to carry out the offending in a private area of the shop or close by, leads me to conclude that the evidence has significant probative value. The evidence of the conduct in relation to “A” makes more likely that the respondent would act upon a similar sexual interest in anal penetration of “B” and vice versa. The additional conduct involving “B” (tongue kissing and kissing of her genitals) does not in my view change that conclusion. Overall, the tendency evidence makes more likely the elements of the offences charged.

9. [77]

   As to the submission by the respondent by reference to what was said in Bauer as to the need for linking conduct, I note that what the High Court there said was:

10. [78]

    The Court in Bauer went on to say:

11. [79]

    See also the discussion by Kirk JA, with whom Beech-Jones CJ at CL and Yehia J agreed, in Bektasovski v R [2022] NSWCCA 246; (2022) 407 ALR 125 at [93]-[95] as to the concept of linking conduct.

12. [80]

    In the present case, the link between the conduct in relation to the respective complainants lies in the significant common features of the offending (in my opinion, the grooming behaviour, location of the offences, and the fact that for both complainants there was an instance of attempted or actual anal penetration) such that in my opinion the tendency evidence has significant probative value. The only prejudice to which the respondent has pointed is the inherent risk in the admission of such evidence (and the risk that the case involving “A” might be strengthened in an unfair way by the stronger case involving “B”). The mere fact that the tendency evidence might be inculpatory does not amount to unfair prejudice. In my opinion, the giving of appropriate directions by the trial judge should minimise the risk of unfair prejudice by the admission of the tendency evidence.

13. [81]

    Thus, I consider that the tendency evidence has significant probative value that substantially outweighs the (manageable) risk of prejudice. Further, I accept the Director’s submission that the exclusion of the evidence will significantly weaken the Crown case.

14. [82]

    As to the consequential separate trial ruling, this follows from the conclusion that is reached on the tendency evidence as the trial judge concluded.

15. [83]

    For the above reasons, I consider that the appeal should be upheld; that the orders of the trial judge should be set aside; and that orders should be made that the tendency rule does not apply to the evidence the subject of the tendency notice dated 30 January 2023 (with the effect that evidence in relation to each count on the joint indictment is admissible as tendency evidence in relation to each other count). There should be a consequential order setting aside the separate trial ruling.

16. [84]

    FAGAN J: I agree with the Acting Chief Justice.

17. [85]

    It is clear that all counts will be contested on the basis that the conduct alleged against the respondent did not occur, rather than that some physical contact took place and was misinterpreted. In the first trial of the respondent, on the counts concerning complainant B, the respondent's case was opened to the effect that "there was no wrongful or sexual touching of any kind", although B was only minimally challenged in cross-examination by way of the following question:

18. [86]

    The issue of whether all counts concerning the allegations of both complainants should be tried on the one indictment depends upon cross-admissibility of the putative tendency evidence. It must first be determined whether A's evidence that the respondent sexually touched or assaulted him on three occasions in 1997 is admissible to establish a relevant tendency, which in turn would be relied upon as contributing to proof that the sexual offences alleged by B were committed against her in 1998-1999. It must also be decided whether B's evidence is admissible to establish a tendency that could be relied upon to prove the offences of which A complains.

19. [87]

    It is necessary to address the two considerations into which "significant probative value" (s 97(1)(b) of the Evidence Act) may be subdivided, as explained in the judgment of Kiefel CJ, Bell, Keane and Edelman JJ in Hughes v The Queen at [41]. Those two considerations were elaborated by Gageler J at [90] and [93], as follows:

20. [88]

    For both considerations, Gageler J accepted at [81] the following proposition, derived from Lockyer (1996) 89 A Crim R 457 at 459:

21. [89]

    From all this the following questions arise in the present case:

22. [90]

    Reciprocal questions arise in determining whether B's evidence would be admissible as proof of a relevant tendency that could be relied upon in the Crown case concerning the three incidents of which A complains:

23. [91]

    In formulating those questions I have paraphrased and simplified the tendencies propounded by the Crown. For the evidence of the two complainants to be cross-admissible, a necessary condition is that each group of sexual acts, those concerning A and those concerning B, respectively, must separately be capable of supporting a non-gender-specific tendency. On that point, reservations that I held upon initially reading the appeal papers and during the hearing have been resolved by the Crown's arguments. There is nothing in the evidence proposed to be led from A to suggest that the respondent's sexual interest and willingness to act on that interest stemmed from tendencies that were confined to male children. A is, of course, a male and his evidence of sexual contact includes that the respondent fondled his penis. However, there is no evidence of anything said or done on the occasions that involved A to indicate that the respondent's sexual interest in the immature bodies of children excluded an interest in girls of similar age. Likewise, B's evidence of the respondent's conduct towards her does not include any statement or conduct that would indicate disinterest in young boys. Having regard to the young age of the two children and their early stage of physical development, the evidence of each of A and B is capable of supporting non-gender-specific tendencies such as those advanced by the Crown.

24. [92]

    As to the first of the two considerations expounded in Hughes v The Queen at [41], [90] and [93], the Crown's arguments have shown that the evidence of A, taken separately, has significant probative value for satisfying the jury that the respondent had at the relevant time the tendencies for which the Crown contends. Although there were only three incidents concerning A, they were on separate days, thereby exhibiting a level of persistence that the jury could find to be indicative of the alleged tendencies. The effect of the evidence is to be contrasted with that which would arise if A only alleged a single, fleeting sexual contact. A's evidence of the three assaults upon himself would be of importance and of consequence in the jury's assessment of whether the respondent had the alleged tendencies. The evidence of B, taken separately, concerns a greater number of sexual contacts over a longer period and it comfortably passes the threshold of significant probative value in proof of the alleged tendencies.

25. [93]

    As to the second of the two considerations into which "significant probative value" of tendency evidence has been analysed by the High Court, a factor bearing upon "the extent to which the [tendencies make] more likely the facts making up the charged offence" (see Hughes v The Queen at [41]) is that sexual interest of a mature male of around 50 years in the immature body of a 9-13 year old boy or girl is, by common experience, an out of the ordinary phenomenon. Willingness to act upon such an interest by fondling the genitals of, or in any other manner sexually touching, a child of an age within that range is likewise out of the ordinary. Because these things are unusual, evidence of the respondent having such interest and willingness to act towards one child of 9-13 years "could rationally affect the assessment of the probability" that he would have such interest and willingness to act towards another child of similar age. The quoted words are from the Evidence Act Dictionary definition of "probative value".

26. [94]

    The above reasoning is supported by observations of the four justices in their joint judgment in Hughes v The Queen, as follows:

27. [95]

    In the present case there is a second factor contributing to the significant probative value of the asserted tendencies in the assessment of the likelihood that the respondent committed the alleged offences against A and B, respectively. The additional factor concerns the nature of the connection between the respondent and each complainant and the circumstances in which they met and in which the indecent contacts took place. A was a visitor to the respondent's shop. He was not related to the respondent and they were not acquainted socially, either directly or through others. A alleges that, on all three occasions when the respondent acted upon his sexual interest in him, this occurred within the shop or within its immediate environs. Those circumstances of the tendencies exhibited by the respondent's conduct towards A add to the probative value of the tendencies in proof of the charges concerning B. B was also a child unknown to the respondent except through her attendance at the shop and she also was sexually assaulted within the shop or in the storeroom nearby. The contribution of this factor to the tendencies' significant probative value operates in a reciprocal fashion; that is, it operates in assessing the probative value of the tendencies exhibited in the respondent's conduct towards B as proof of the offences committed against A.

28. [96]

    This factor can be appreciated from consideration of a counterfactual. If A was a nephew or grandchild of the respondent, who spent a great deal of time at the respondent's home in his care and who was sexually assaulted in that setting, the evidence of the respondent's tendency to be sexually interested in A and to act upon that interest in such circumstances might be considered less probative of him having committed assaults upon a stranger, B, at his shop. Where the circumstances of connection with the complainant and location of the alleged offending are the same in respect of both A and B, the probative value is enhanced.

29. [97]

    The above conclusions are supported by observations in the joint judgment of the four justices in Hughes v The Queen concerning the Victorian Court of Appeal's decision Velkoski v The Queen (2014) 45 VR 680; [2014] VSCA 121. Velkoski assisted his wife in the operation of a children's day care centre. It was alleged that he committed indecent acts against several children at the centre, aged approximately 4-11 years. The acts with which the accused was charged included touching a child's penis; encouraging a child to take hold of the accused's penis; touching a child on the vagina and touching a child on the bottom. The prosecution served notice that it sought to prove tendencies specified as follows: "the accused had a sexual interest in young children attending the day-care centre run by his wife" and "the accused was willing to act on that sexual interest by engaging in sexual acts with the complainants". To establish the tendencies the prosecution relied upon evidence that the accused solicited children to touch his penis on multiple occasions, repeatedly touched one complainant's penis and touched other complainants on their vaginas and bottoms.

30. [98]

    The four justices in Hughes v The Queen considered that, in the circumstances of Velkoski v The Queen, the evidence of the tendencies as formulated by the prosecution had significant probative value with respect to the charged acts. Their Honours said this:

31. [99]

    Their Honours disapproved the Victorian Court of Appeal's decision, according to which it had only been open to the prosecution to adduce tendency evidence in respect of the counts which had the common feature of the accused encouraging a complainant to touch the accused's penis or exposing his penis to a complainant. Their Honours said this:

32. [100]

    Similarly, the four justices considered that the tendency evidence under consideration in Hughes v The Queen itself was not deprived of significant probative value by reason of differences between the particular sexual acts that exhibited the relevant tendencies and between the acts that were alleged to constitute the offences charged. Their Honours said this:

33. [101]

    In the present case the Crown has shown that the tendencies capable of being established by the evidence of A have "significant probative value" in the jury's assessment of whether the respondent had a sexual interest in B and acted upon that interest by committing offences against her in the circumstances and on the occasions that she describes. Similarly, the tendencies capable of being established by B's evidence have "significant probative value" in the assessment of whether the respondent acted on those tendencies to commit the sexual acts that A alleges. The tendency to act on his sexual interest in children would in my view be appropriately framed as a tendency to do so in or close to his shop and with respect to children who came to the shop but were otherwise unconnected to the respondent and unknown to him and to whom he was otherwise unknown.

34. [102]

    In Hughes v The Queen caution was expressed regarding the need to consider each count separately when assessing whether evidence of the tendencies propounded by the prosecution would have significant probative value: see [40] (in the joint judgment) and [216(2)] (Gordon J). In the circumstances of the present case and having regard to the nature of the tendencies that are capable of proof and that would be significantly probative of the offences charged, it does not appear to me that the cross-admissible tendency evidence would be any less probative from one count to the next.

35. [103]

    The greater number of incidents described by B and the longer period over which the respondent is alleged to have persisted in his offending against her has required careful reflection upon the possibility of the jury being overawed by B's evidence and giving it weight in their assessment of A's complaints beyond the legitimate probative value of the tendencies. Taking into account the factors to which I have referred above I am satisfied that the probative value of the tendency evidence, in both directions of its cross-admissibility, is such that any risk of misuse can be averted by an appropriate direction and that the risk of such misuse is not such as to create a prejudice that would outweigh the probative value. Accordingly, s 101(2) of the Evidence Act is not a bar to the reception of the evidence under s 97.

36. [104]

    The Crown case on all charges depends critically upon the evidence of a single witness, either A or B, who will be testifying to events that occurred 25 years ago when each of those witnesses was a child. The supporting evidence of tendency will be important with respect to every charge. The prosecution case would be substantially weakened if the ruling of Williams DCJ should stand. The prerequisite in sub-s (3A) of s 5F of the Criminal Appeal Act is therefore satisfied with respect to this appeal.

37. [105]

    SWEENEY J: I agree with Ward ACJ.