R v Edwards

1. [1]

   HOEBEN CJ at CL: I agree with Harrison J.

2. [2]

   HARRISON J: The Crown appeals pursuant to s 5F(3A) of the Criminal Appeal Act 1912 from rulings made by Jeffreys DCJ as follows:

   1. (1)

      On 10 February 2014 his Honour excluded evidence on the basis that it contravened s 293 of the Criminal Procedure Act 1986 being:

   2. (2)

      On 27 February 2014 his Honour excluded:

3. [3]

   The Crown also appeals pursuant to s 5F(2) of the Criminal Appeal Act from his Honour’s ruling on 27 February 2014 in which he directed a separate trial in respect of the complainant Damien Leonard.

Background

1. [4]

   The trials were originally listed before his Honour at Sydney on 22 January 2014 on an indictment containing 62 counts in respect of seven complainants. On the first day of the trial Mr Edwards sought orders for the following:

2. [5]

   His Honour dealt with these applications in three separate judgments as follows:

3. [6]

   The Crown does not appeal against his Honour’s judgment on 19 February 2014 dealing with separate trials.

4. [7]

   The Crown case alleges that seven complainants had sexual relations with the accused over a period of time. The indictment covered a nine year span from 1978 to 1987. More particularly, the Crown alleged that Mr Edwards had sexual relations with Peter Hogan aged 11, Kevin Kittila aged 10, Shane McNamara aged 10, Anthony Sork aged 11 and Avelindo Robertson aged 14 at a time when Mr Edwards knew that each of the boys had had prior sexual experiences with John Shiel and Phillip Sork as well as other adult males. The Crown alleged that these adult males had effectively groomed the complainants and that they therefore understood what was or might be expected of them when made available to Mr Edwards. In particular, the Crown alleged that Mr Edwards took advantage of that knowledge in that he was able to engage in sexual acts with the complainants without the need to groom them further.

5. [8]

   In relation to all of the complainants the Crown alleges that Mr Edwards provided them with various inducements including meals and treats, alcohol and drugs, holidays in New South Wales and Queensland and various other benefits.

6. [9]

   It is also the Crown case that Mr Edwards had a tendency to act in certain ways and that there were events that occurred that were not merely coincidence.

The s 293 application

1. [10]

   The willingness of several complainants to engage in sexual activities and to cooperate in that respect with Mr Edwards was said by the Crown to be explicable only by reference to the fact that they had had prior sexual experience. That experience is recorded in some detail in statements variously provided by each of the complainants concerned.

2. [11]

   For example, Peter Hogan had regular sex with John Shiel in the first half of 1978 that went on to include sex with other men. When Peter Hogan was taken to Mr Edwards’ place by John Shiel, he saw other men less. The Crown asserts that there was therefore a continuing round of sex with Peter Hogan that begins with John Shiel, moves to other men and then on to Mr Edwards. Mr Edwards on this analysis is therefore having sexual relations with Peter Hogan at the same time as he is having sexual relations with John Shiel.

3. [12]

   Kevin Kittila’s first sexual experience is with John Shiel. According to his statement, his first sexual experience with Mr Edwards was about two months later. The Crown alleges that the sexual activity between Kevin Kittila and these two men occurs at the same time. Kevin Kittila’s statement indicates that the routine or pattern established by John Shiel is also used by Mr Edwards.

4. [13]

   Shane McNamara’s statement indicates that he was sexually assaulted by John Shiel between 1980 and 1988 on an ongoing basis, and that it was John Shiel who introduced him to Mr Edwards. He said that he was sexually assaulted by John Shiel and Mr Edwards every third weekend at the end of 1981 and every second weekend on an ongoing basis between 1982 and 1988. John Shiel took Shane McNamara to Mr Edwards’ place between May and December 1980. John Shiel would assault him on Friday nights and Mr Edwards would do so on Saturday nights from 1981 to 1988.

5. [14]

   Anthony Sork said that he was first sexually assaulted by his uncle Philip Sork. That continued from about the middle of 1980 until the end of 1983. He first met Mr Edwards and John Shiel around September 1981. He was first sexually assaulted by Mr Edwards at his uncle’s apartment and that continued from January 1982 until December 1983. Therefore, when Anthony Sork was first assaulted by Mr Edwards, he was still being assaulted by his uncle.

6. [15]

   Avelindo Robertson was introduced to sexual activity by Philip Sork in 1986 and that continued for about six months. He was introduced to Mr Edwards about six to eight weeks after beginning with Philip Sork. He began to “go out” with Mr Edwards in about September 1986 and he was “handed over” to Mr Edwards by Philip Sork. Moreover, this “changeover” occurred either the following night or the next weekend and sex occurred on that occasion.

His Honour’s judgment

1. [16]

   Jeffreys DCJ was not satisfied that the evidence concerned fell within the exception to exclusion contained in s 293(4) and it was accordingly disallowed. In particular, his Honour ruled that under s 293(4)(a)(ii), the sexual experience did not form part of a connected set of circumstances in which the sexual offences alleged against Mr Edwards were committed. Furthermore, his Honour indicated that there was in any event a danger that the jury might misuse the evidence in the sense that it may lose sight of the real issues in the trial if they were overwhelmed by the evidence of sexual experience. The probative value of the evidence was therefore outweighed by the danger of unfair prejudice to Mr Edwards and his Honour indicated that he would also have rejected it pursuant to s 137 of the Evidence Act.

Grounds of appeal

1. [17]

   His Honour found that the sexual experience of the complainants did not form part of a connected set of circumstances in which the sexual offences alleged against Mr Edwards were committed. The Crown appealed against his Honour’s ruling excluding the evidence of the complainants’ prior sexual experience upon which the Crown sought to rely as an exception falling within s 293(4)(a) of the Criminal Procedure Act.

Consideration

1. [18]

   Section 293 of the Act is in the following relevant terms:

2. [19]

   The purpose of s 293 was to limit the circumstances in which complainants in sexual assault matters would have to endure the public revelation what might otherwise be personal and sensitive matters: R v White (1989) 18 NSWLR 332 at 340. In GEH v R [2012] NSWCCA 150 at [57] I said this:

3. [20]

   To similar effect in R v Burton [2013] NSWCCA 335 at [70], Simpson J said the following:

4. [21]

   Campbell JA’s comments in Taylor v R [2009] NSWCCA 180 at [47] are also instructive:

5. [22]

   In the present case the Crown was at pains to emphasise that the reason for and purpose of the tender with which his Honour was concerned had nothing at all to do with the mischief identified in these authorities to which the section was clearly directed. The Crown contends in this Court that each of the five complainants acquired a certain amount of sexual experience or engaged in a certain amount of sexual activity with men other than Mr Edwards before they were made available to him, and that the evidence referred to above demonstrates that this sexual activity was occurring “at or about the time” that the sexual activity began with Mr Edwards.

6. [23]

   His Honour found that the sexual experience of the complainants did not form part of a connected set of circumstances in which the sexual offences alleged against Mr Edwards were committed. His Honour said this:

7. [24]

   His Honour’s references were to what I said in GEH v R at [63] to [66] as follows:

8. [25]

   The exception in s 293(4)(a)(ii) is directed at those cases where the sexual activity or experience (or lack of it) is connected with the alleged offences in time and place. As Basten JA said in GEH v R at [11]:

9. [26]

   Beech-Jones J summarised the position in GEH v R at [83] as follows:

10. [27]

    It was submitted on behalf of Mr Edwards that the complainants’ alleged willingness to submit to and cooperate fully with him in a range of sexual activity did not connect their conduct with other offenders at some earlier period of time to him. Mr Edwards submitted that that was precisely the type of evidence that the section was designed to exclude. The fact that a complainant has previously engaged in anal sex with person A did not form part of a connected set of circumstances between the complainant and person B, if B is accused of engaging in anal sex with the same complainant days, weeks or months later. The prior sexual activity with person A is not admissible to assess the likelihood of the complainant consenting to, or participating in, anal sex with person B. The prior sexual activity is not admissible to assist in understanding how the complainant may have responded to the sexual activity.

11. [28]

    It should be noted that the section does not speak in terms of the reason or purpose that it was enacted to satisfy or to promote. Whatever principle it was designed to serve has not found its way into the words of the section so as to restrict or limit its operation or application to only the service of that purpose. Depending upon whether or not its conditions are met, the prohibition upon receipt of the evidence concerned either applies or does not apply as the case may be, regardless of the purpose for which the tendering party may wish to use it.

12. [29]

    In my opinion the evidence in question in this case satisfies the terms of s 293(4)(a)(i) and (ii).

13. [30]

    Consistently with the views that I expressed in GEH v R, the complainants’ sexual experience, in the sense of their historical engagement in sexual activity over some years, is necessarily their existing state of sexual experience at or about the time of the alleged sexual offences with which Mr Edwards has been charged. Section 293(4)(a)(i) is concerned with the complainants’ “sexual experience…at the time of the commission of the alleged prescribed sexual offence.” The evidence of the sexual experience of the complainants that the Crown wishes to tender satisfies the temporal conditions of admissibility with which the section is concerned.

14. [31]

    Moreover, the evidence in question is of events that the Crown alleges form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed. The term “connected” is not defined at all, and so its meaning is not confined to particularly close circumstantial or factual situations limited by reference to a specified range or class of participants or activities in which they may be involved. The evidence need only be of events allegedly forming part of a connected set of circumstances. Be that as it may, in the present case, the complainants’ sexual experience is clearly evidence of events that are alleged to form part of a connected set of circumstances. The sexual experience of the complainants is directly referable to a series of events that actually form part of the circumstances in which the alleged offences occurred. The complainants were handed around or passed between or among a series of individuals, including Mr Edwards, who groomed them with gifts and other favourable treatment before engaging in acts of sexual intercourse with them on regular and reoccurring occasions. The evidence does not, for example, relate merely to the sexual experience of the complainants with individuals unconnected to Mr Edwards or in isolated or unique circumstances.

15. [32]

    In my opinion his Honour erroneously excluded the evidence in question.

16. [33]

    The Crown also wished to rely upon s 293(4)(b). That section does not apply in this case as it is concerned with evidence of a relationship between Mr Edwards and the complainant. The Crown has not sought to adduce evidence of that kind.

Evidence Act 1995 – s 137

1. [34]

   Section 137 of the Evidence Act provides as follows:

2. [35]

   Having excluded the evidence as earlier described, his Honour proceeded to say this:

3. [36]

   In dealing with the issue in that way, his Honour omitted further to elaborate upon the danger that he perceived or the way in which he considered that it might weigh unfairly against the accused having regard to its probative value. His Honour did not proceed to indicate how he considered that the evidence might be misused by the jury and he did not give consideration to the possibility that appropriate directions could be formulated to ameliorate or eradicate the perceived danger.

4. [37]

   Wood CJ at CL made the following observations in R v Yates [2002] NSWCCA 520 at [252]:

5. [38]

   In the present case the Crown wishes to tender the evidence for a very specific and correspondingly limited purpose. It is a purpose that in my view is easily understood and equally easy to explain. That is, the Crown wishes to tender the evidence in order to explain why the complainants engaged in sexual activity with Mr Edwards apparently cooperatively and without complaint when an inexperienced person in the same situation might reasonably have been expected to resist the assaults alleged. That evidence has a significant probative value.

6. [39]

   To the extent that the evidence concerns the activities of others and the perpetration of sexual assaults upon the complainants by them, as opposed to earlier assaults by Mr Edwards, there seems to me to be little room for confusion or misuse of the evidence. The prospect of unfair prejudice to Mr Edwards also seems correspondingly remote. The evidence is conspicuously amenable to the formulation of appropriate directions to ensure that its purpose is understood by the jury and that the use they make of it is accordingly limited. In this respect I am entirely unable to understand Mr Edwards’ submission that the admission of evidence describing prior sexual activities of men other than Mr Edwards with the complainants is somehow unfairly prejudicial to him. The breadth and nature of the sexual abuse exposed by the evidence may arguably create sympathy for the complainants that would carry potential prejudice to Mr Edwards but it is not in my view likely to be unfairly prejudicial. The acts of sexual abuse specifically alleged against Mr Edwards are themselves not inconsiderable and the context in which the jury’s view of the complainants would be formed necessarily includes the acts charged. Finally, if the names or notoriety of these other men were thought to be of concern, their identities could be suppressed and reference to them by pseudonym could be ordered.

7. [40]

   His Honour in this way took into account plainly irrelevant matters. In my opinion he failed to take into account as a material consideration the legitimate use to which the evidence concerned could be put. His Honour also failed to give consideration to the prospect of directions to the jury to cure his concerns. His discretion miscarried as a result: House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-5.

8. [41]

   In my opinion, the evidence is admissible.

Tendency

1. [42]

   Section 97 of the Evidence Act provides relevantly as follows:

2. [43]

   The Crown gave a tendency notice in accordance with s 97 of the Evidence Act approximately two years prior to the commencement of the trial. The tendency sought to be proved was Mr Edwards’ tendency to act in a particular way. The notice listed the following twelve tendencies:

3. [44]

   His Honour permitted the Crown to lead evidence in relation to four categories of evidence, namely categories (iv), (v), (vii) and (ix). The Crown now seeks to challenge his Honour’s decision to reject categories (i), (ii), (vi) and (x).

4. [45]

   In my opinion, this aspect of the Crown’s appeal should be dealt with in the following way. There was placed before his Honour a very considerable amount of material, consisting of scores of statements, a wealth of photographic and other exhibits and over 700 pages of evidence received on a voir dire over a period of 18 days between 21 January 2014 and 27 February 2014.

5. [46]

   On the later of those two dates his Honour published his reasons for judgment. He embarked upon the not uncomplicated analysis and dissection of the evidence by comparison with the twelve tendency categories identified in the s 97 notice. His Honour’s conclusions were based upon identification by him of numerous bases upon which his Honour considered that the categories could be differentiated or distinguished. I have read and re-read his Honour’s reasons in order to appreciate the way in which his Honour did so.

6. [47]

   However, having done so, I am unable to accept that there is any easily discernible basis for distinguishing categories (iv), (v), (vii) and (ix), in respect of which his Honour permitted the Crown to lead evidence, and categories (ii), (vi) and (x), in respect of which he declined to do so. I accept that category (i) is similar to (xi) that his Honour rejected, and which is not pressed in this Court, and I would also reject it. The tendency categories (ii) and (vi) appear to me to be materially indistinguishable from the categories that his Honour allowed. Category (x) is, however, somewhat different..

7. [48]

   His Honour rejected tendency category (ii) in the following way:

8. [49]

   I disagree. The friendship network between Mr Edwards and other adult males is on the Crown case central to his operating procedure. It is arguably relevant and ought not to have been excluded.

9. [50]

   Tendency category (vi) relates to the alleged provision of alcohol and drugs to boys to facilitate their disinhibited cooperation in sexual activities. His Honour concluded that the evidence relating to both alcohol and marijuana was not of significant probative value. His Honour did not elaborate upon that conclusion and I am otherwise unable to agree with it. Once again I am unable to accept that there is any basis for distinguishing this tendency category from others that his Honour allowed, which allegedly demonstrate methods or practices adopted by Mr Edwards to induce the complainants to submit to sexual activity with him. Tendency category (vi) is in effect a continuation of tendency category (iv).

10. [51]

    Tendency category (x) is different. His Honour rejected this evidence as follows:

11. [52]

    I take his Honour’s reference to that case to be an adoption and application of the proposition that the conduct identified in tendency category (x) is an unremarkable circumstance that is common to sexual offences against children, or more particularly in this case to offences against boys. One of the difficulties for present purposes is that the evidence does not permit this Court to form a conclusion about whether or not the physical actions identified in this tendency category in fact amount to unremarkable circumstances common to offences with which Mr Edwards is charged or are on the contrary to some extent idiosyncratic.

12. [53]

    It seems to me that it is not possible to say whether or not the nominated tendency more likely than not falls outside the range of activities that are commonplace or unremarkable. To that extent it is therefore not possible to say that the activities in question have significant probative value. In my opinion his Honour was correct to reject this evidence.

13. [54]

    In the circumstances I would also allow the Crown to lead evidence with respect to the tendency categories (ii) and (vi).

Coincidence

1. [55]

   The Crown served a coincidence notice dated 17 January 2014. The only coincidence calling for consideration here is coincidence B, which is also tendency category (x). His Honour dealt with this matter in his reasons for judgment as follows:

2. [56]

   Section 98 of the Evidence Act is relevantly in these terms:

3. [57]

   The Crown contended that his Honour appears to have limited his consideration of the evidence in question to an assessment of its probative value. He did not consider the question of whether it was improbable that five young complainants would otherwise be aware of such sexual conduct, and appears implicitly at least to have proceeded upon the basis that the physical acts under consideration were unremarkable or commonplace features of child sexual assault. There is no evidence to support the latter proposition.

4. [58]

   The issue of how the section should be approached and what matters should be considered in order to determine or assess significant probative value was considered in DSJ v R; NS v R [2012] NSWCCA 9 at [10] as follows:

5. [59]

   The Crown contended in this Court that his Honour did not, either by reference to the evidence itself or other evidence to be adduced by the prosecution, consider whether there was a real possibility of an alternative explanation. On the contrary, his Honour dismissed the evidence as commonplace and concluded accordingly that it had no significant probative value.

6. [60]

   In R v Burton [2013] NSWCCA 335 at [182]-[184], [197]-[198], Simpson J said this:

7. [61]

   Mr Edwards took issue with the proposition that his conduct was more than commonplace. He contested the suggestion that the act of thrusting a penis between the thighs of young male sexual assault victims, the complainants in these cases, was not commonplace or was out of the ordinary. He maintained that there was a real possibility of an alternative explanation (see DSJ v R; NS v R at [78]-[81]) in the sense that there was evidence that demonstrated that the others, including others known to the complainant, had engaged in the alleged act. Contrary to the Crown’s submission, there was no need for Mr Edwards to advance an alternative explanation because it was already part of the prosecution case. The evidence did not support a finding that it is improbable that the events occurred coincidentally.

8. [62]

   Disposition of this ground of appeal is burdened with at least the following difficulty. The extent to which the physical activity in question is either out of the ordinary on the one hand or commonplace on the other hand is not a matter that is notorious as a well-known fact or something that this Court can determine from experiences that influence or inform all members of society in the same way. In order to give any content to the expression “improbable that the events occurred coincidentally”, there needs necessarily to be some experiential or evidential framework against which to assess the probability concerned. The behaviour may, for all that this Court knows, or for all that the evidence reveals, be completely idiosyncratic, thus enhancing the probability that its repetition was no mere coincidence, or it may be so usual and widespread that its identification by a series of otherwise unrelated complainants entirely fails to explain the likelihood of its replication or repetition in unconnected circumstances.

9. [63]

   The answer to this obvious difficulty may lie in the approach indicated by Simpson J in Burton. For the purposes of s 98 the Court looks at the whole of the case of (here) the Crown as the tendering party in order to assess the significance of the evidence. The Court is not required to balance the potential probative value of the evidence measured in that way against any other consideration. However, coincidence evidence cannot be used against an accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused: s 101(2) of the Evidence Act. That inquiry seems to me to reignite the unanswerable concern about whether the activity in question is commonplace or atypical.

10. [64]

    This appeal does not, however, call for a consideration of s 101(2) of that Act. As Simpson J said in R v Nassif [2004] NSWCCA 433 at [46]-[47]:

11. [65]

    In my opinion the evidence that Mr Edwards would thrust his penis between the thighs of the complainants as some form of prelude to anal penetration, having regard to the similarities in the events in the case of the several complainants and the circumstances in which they occurred, does not reliably inform the question of whether or not it is improbable that the events occurred coincidentally. The issue requiring an answer is whether this evidence has significant probative value. That question has to be evaluated in the context of understanding what it is the Crown is attempting to prove by adducing the evidence, or in other words, of what fact in issue in the Crown case is this evidence said to be probative? That is not clear at all. It does not seem to me that the alleged activity is so enigmatic or unusual that its occurrence says anything about, or informs an understanding of, any identified issue in the proceedings.

12. [66]

    I observe that, as earlier discussed, his Honour disallowed the evidence in question as tendency evidence. That decision was challenged by the Crown but I rejected that challenge. His Honour’s rejection of the category (x) evidence as coincidence evidence is equally comprehensible. I consider that the evidence is not admissible to prove that it is improbable that the events occurred coincidentally. The evidence does not appear to me to have significant probative value.

Separate trial - Damien Leonard

1. [67]

   His Honour’s ruling in this respect was in these terms:

2. [68]

   The complainant Damien Leonard had no prior sexual experience. Mr Edwards was his football coach. He took him for drives and had him sit on his lap. Mr Edwards supplied cigarettes and alcohol and showed him pornographic material.

3. [69]

   The evidence concerning Damien Leonard is also brief. He only visited Mr Edwards’ home on one occasion. There is no evidence of sexual intercourse. The only allegations of sexual conduct consist of Mr Edwards and this complainant masturbating in the presence of each other, after which they slept together in the same bed. This complainant did not see Mr Edwards after the end of the football season. Mr Edwards was not the coach of any other complainant.

4. [70]

   It is the Crown case that Mr Edwards was attempting to groom Damien Leonard for further sexual activities but that they did not eventuate.

5. [71]

   His Honour separated the trial upon the basis that he excluded evidence in tendency categories (i) and (vi). I have excluded (i) but allowed (vi). There is a similarity between tendency categories (iv) and (vi). The Crown contends in these circumstances that there is no remaining reason to separate the trial of Mr Edwards based on the Damien Leonard complaints.

6. [72]

   Mr Edwards’ response proceeds upon the basis that the way in which the Crown proposes to use this evidence exposes a line of impermissible reasoning that would result in an unfair trial. That is said to be because it improperly directs the jury’s attention away from the critical question of whether Mr Edwards committed the offence alleged and invites the jury to infer that Mr Edwards was clearly intent on committing other offences against Damien Leonard and that he must therefore be guilty of the offence charged. Mr Edwards contends that there is a significant difference between the modus operandi alleged concerning Damien Leonard and that suggested with respect to the other four complainants. Moreover, the acts charged are different, the circumstances in which the other offences are said to have been committed are different and the nature of the individual relationship with Damien Leonard is different to the relationship with the other complainants. Mr Edwards contends in the circumstances that there is a real risk that the tendency evidence in relation to the other four complainants would be used inappropriately to reason towards proof of guilt in this matter.

7. [73]

   Although not without some doubt, I think that his Honour’s decision was correct. The Damien Leonard allegations are arguably different to those of the other complainants. There is in my view a risk that the weight of the other cases could spill into the Damien Leonard allegations and swamp the limited nature of those allegations in an unfair and prejudicial way. Mr Edwards is entitled to the presumption of innocence and this application must not be decided upon the basis of an unestablished predisposition or anticipation about the possible or probable outcome of the trials or any of them. There is a possibility that if the trials were not separated, the jury might erroneously be inclined to determine guilt on the basis of an impression that Mr Edwards had a general sexual interest in young males rather than focussing upon the need for proof of the actual count on the indictment.

Conclusions and orders

1. [74]

   For those reasons, I am persuaded that error is established in respect of the ruling given on 10 February 2014 relating to the evidence objected to under s293 of the Criminal Procedure Act and the ruling given on 27 February 2014 relating to tendency evidence so far as it concerned categories (ii) and (vi). However, the Crown's right of appeal under s 5F (3A) is limited to the circumstance where "the decision or ruling eliminates or substantially weakens the prosecution's case". While that is an issue going to jurisdiction, it is not intended to involve an inquiry into the weight to be given to the evidence excluded: the section directs attention to "the prosecution’s case", to be considered as a "case": R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [39] per Spigelman CJ, Simpson and Adams JJ agreeing at [81] and [82].

2. [75]

   It has been accepted that, when there are a number of rulings on evidence which are sought to be challenged together, this court can consider the combined effect of the rulings in determining the jurisdictional question: R v Nguyen [2010] NSWCCA 97 at [4] per Hodgson JA; Johnson and Latham JJ agreeing at [24] and [30]. In the present case, the respondent questioned the correctness of that decision but the point was not foreshadowed so as to enable the matter to be argued before an enlarged bench. The same issue potentially arose in R v Burton [2013] NSWCCA 335 but the need to address it was obviated by the Court's conclusion that each of the challenged rulings individually overcame the jurisdictional hurdle: at [6]-[8] and [202]-[216] per Simpson J, R A Hulme J and Barr AJ agreeing at [219] and [220].

3. [76]

   In my view, the ruling excluding evidence of sexual activity under s 293 plainly substantially weakens the prosecution case. The ruling as to tendency evidence raises a more difficult question. The two categories of tendency evidence wrongly excluded are not, of themselves, central to the Crown case. In my view, however, they form an integral part of the course of conduct relied upon by the Crown. If the erroneous ruling is allowed to stand, the result will be that a complex series of directions will have to be given as to the differential use which may be made of many individual items of evidence, some being properly relied upon for a tendency purpose and others not. That will contribute, unnecessarily, to the complexity of the Crown case and, in my view, substantially weaken it.

4. [77]

   Accordingly, I am satisfied that this Court has jurisdiction to determine the appeal in respect of each impugned ruling.

5. [78]

   In the circumstances I propose the following orders:

   1. (1)

      Allow the appeal in part.

   2. (2)

      Vacate the ruling given on 10 February 2014 relating to the evidence objected to under s293 of the Criminal Procedure Act.

   3. (3)

      Vacate the ruling given on 27 February 2014 relating to tendency evidence so far as it concerns categories (ii) and (vi).

   4. (4)

      Otherwise dismiss the appeal.

6. [79]

   McCALLUM J: I agree with Harrison J.