In the middle of Wednesday’s criminal appeal decision by the High Court, The Queen v Dennis Bauer (a pseudonym)  HCA 40 is the following remarkable paragraph:
[P]revious decisions of this Court have left unclear when and if a complainant’s evidence of uncharged sexual and other acts is admissible as tendency evidence in proof of charged sexual offences. That is due in part to differences of opinion between members of the Court in HML – and in subsequent tendency evidence decisions, most recently IMM – as to the rationale of admissibility of tendency evidence in single complainant sexual offences cases. It is unsatisfactory that trial judges and intermediate courts of appeal should be faced with that problem. It is also unsatisfactory that the issue should continue to be attended by as many complexities as have thus far been thought to surround it. The admissibility of tendency evidence in single complainant sexual offences cases should be as straightforward as possible consistent with the need to ensure that the accused receives a fair trial. With that objective, the Court has resolved to put aside differences of opinion and speak with one voice on the subject.
And speak with one voice the seven justices did, issuing a unanimous joint judgment to resolve all of the many issues raised by the appeal. While unanimous joint judgments have become commonplace in the High Court of late, child sexual abuse appeals have been a notable exception, with narrowly divided decisions on the topic in 2001, 2006, 2008, 2012, 2016 and 2017, the last four with 4-3 splits.
Still more remarkable is that the Court’s new ‘one voice’ is at odds with the voices of five justices from just two years ago, including four current justices. On the much-litigated issue of the admissibility in a sexual abuse trial of other uncharged incidents of alleged abuse of the complainant, the Court declared:
Henceforth, it should be understood that a complainant’s evidence of an accused’s uncharged acts in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM…
Two years ago, in IMM (itself a blockbuster evidence law decision on the meaning of ‘probative value’ in the uniform evidence law), five judges (French CJ, Kiefel, Bell and Keane JJ, and Gageler J) had allowed the defendant’s appeal solely because they considered such evidence typically inadmissible, with the plurality observing:
Evidence from a complainant adduced to show an accused’s sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant’s account of the charged offences is true. It is difficult to see that one might reason rationally to conclude that X’s account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her.
The Court’s united rule was previously only supported by Nettle and Gordon JJ in IMM, who would have admitted that evidence on the basis that:
evidence of uncharged sexual acts is capable of having significant probative value in the proof of charged sexual acts even where the uncharged sexual acts and the charged sexual acts are of essentially different kinds. Such may be the nature of one human being’s sexual attraction to another, and the likelihood that a sexual attraction is fulfilled or sought to be fulfilled on different occasions by different sexual acts of different kinds, that evidence of uncharged sexual acts, although different from the charged sexual acts, has the capacity to show that the alleged offender had an ongoing sexual attraction to the complainant and endeavoured to gratify it in a variety of ways.
Yesterday’s judgment (including a majority who said otherwise in IMM) states that ‘despite the apparent generality of the dicta in IMM… IMM should be understood as confined to the particular, relatively exceptional circumstances of that case.’
And that isn’t all. The joint judgment also resolved a number of other issues that have previously bedevilled child sexual abuse trials, including:
- questions of possible contamination or concoction amongst witnesses are for the jury, unless the judge considers that the risk is so great that a jury could not rationally accept the evidence (confirming the legislative overruling of a 1988 High Court ruling that barred the admission of potentially contaminated evidence).
- jurors should be directed on the legitimate uses of the evidence of uncharged acts and of the need to be satisfied of guilt of the charged acts beyond reasonable doubt, but do not need to be satisfied beyond reasonable doubt about the uncharged acts (adopting Victoria’s legislative overruling of a 1990 High Court ruling arguably requiring such directions.)
- complaints of child abuse can remain ‘fresh in the memory’ even after many years have passed, and hence complaints to people other than the police can be used by the jury despite being hearsay (confirming the legislative overruling of a 1997 High Court decision that held that freshness was to be measured in weeks.)
- appeal courts must resolve questions of ‘significant probative value’ themselves, rather than merely deciding if the trial judge’s determination was ‘open’ (rejecting contrary views, especially in NSW.)
Notably, every new unanimous approach announced yesterday favours the prosecution in child sexual abuse trials. Coincidentally or otherwise, this follows recommendations along similar lines by the Royal Commission on Institutional Responses to Child Sexual Abuse issued shortly after the Court’s last ruling. The High Court’s new united stance reduces the urgency for such reforms and may even render them moot.
Great post, Jeremy. Shock and awe in the news from HC of A — that’s what your readers want.
The status of Hoch v R and how it is affected by s 97 Evidence Act (Vic) confuses me and the HC of A uniting in once voice now in Bauer confuses me all the more.
Hoch wasn’t a propensity case. The probative value or cogency of the accounts of the several complainants lay in the improbability that each would give sufficiently similar accounts of indecent acts unless these actually occurred — but that improbability is much less cogent and practically disappears, of course, when the complainants are an intra group, and one or more are shown ill disposed (apart from the alleged offending, presumably) toward the accused. The Hoch court said a bare possibility, which was expressed as something less than a “real chance”, of joint concoction eroded the basis for admissibility. But an offender’s “tendency” as such even if that is made out with significant probability by several similar stories isn’t really the point. And doesn’t s 97 speak only of the tendency of some individual personality as such — not real world, common sense, empirical reasoning about suggested events along the lines of, “What are the chances…?”
Perhaps you or readers will be able to explain how Bauer overrules or removes the trial be-devilling Hoch decision.
Thank you so much Professor Gans for this succinct summary. Much appreciated.