The High Court has allowed an appeal against a conviction for child sexual abuse. The defendant, an acolyte at St Michael’s and St John’s Cathedral in Bathurst, was accused of sexually assaulting “A”, an altar boy under his supervision, on two occasions in 1995-1996 in the public toilets of the church. At the trial, the prosecution was permitted to call evidence from “B” and “C”, two students boarding at St Stanislaus’ College in Bathurst, that the defendant, their boarding master, assaulted them in school bedrooms while purporting to comfort them in 1985. The trial judge directed the jury that “If you find that [the appellant] had a sexual interest in male children in their early teenage years, who were under his supervision, and that he had such an interest in ‘A’, it may indicate that the particular allegations are true.” The jury convicted the defendant of the charges relating to “A” and a majority of the NSW Court of Criminal Appeal dismissed his appeal.
The Court (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) allowed the defendant’s appeal at the end of the oral hearing. In reasons for judgment published later, the joint judgment (Kiefel CJ, Bell, Keane and Nettle JJ) observed (at [26]) that ‘[t]he evidence of “B” and “C” was capable of establishing that the appellant had…a sexual interest in young teenage boys’ and that it was not disputed that the interest may endure from 1985 to 1995/6. However, while evidence of a sexual interest is relevant, its probative value generally turns on whether the evidence is of a tendency to act on that interest. Here, there was no evidence that the accused’s tendency to act on his interest in young teenage boys manifested itself in the decade between 1985 and 1995 ([27]). Absent that evidence, the probative value of the alleged tendency is weak ([30]).
As well, the joint judgment observed that, because the tendency evidence is based on acts against people other than the complainant, ‘it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together’. Here, ‘[t]he tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with “A”‘s account that the appellant followed him into a public toilet and molested him.’ ([31]).
In short, the evidence of ‘B’ and ‘C’ ‘rose no higher in effect than to insinuate that, because the appellant had sexually offended against “B” and “C” ten years before, in different circumstances, and without any evidence other than “A”‘s allegations that he had offended again, he was the kind of person who was more likely to have committed the offences that “A” alleged.’ The evidence did not satisfy the test of ‘significant probative value’ in s97 of the uniform evidence law. There was no need for the High Court to address the further test for the admissibility of such evidence in s101 of the uniform evidence law ([32]).
Writing separately with ‘brief additional reasons’, Edelman J noted (at [34]) that the joint judgment of Kiefel, Bell, Keane and Edelman JJ in the 2017 judgment, Hughes, held that the test of significant probative value required consideration of two separate but linked matters. In relation to the first matter, ‘the extent to which the evidence supports the tendency’, he observed that the evidence of ‘B’ and ‘C’ was not strong support of a tendency to have and act on a sexual interest in teenage boys , as they were only two witnesses of events a decade before those charged ([35]). In relation to the second matter, ‘the extent to which the tendency makes more likely the facts making up the charged offence’, the alleged tendency was expressed at a high level of generality, merely ‘acting’ on his sexual interest on teenage boys under his ‘supervision’ ([36]). Although the prosecution suggested a more specific tendency on appeal, the accused was not confronted with that at trial ([37]). In short, the combined weakness of each consideration meant that the evidence of ‘B’ and ‘C’ did not have significant probative value ([38]).
These reasons explain why the Court set aside the order of the NSW Court of Criminal Appeal dismissing the accused’s appeal, and instead quashed his convictions and ordered a new trial.
| High Court Judgment | [2018] HCA 52 | |
| Result | Appeal allowed | |
| High Court Documents | McPhillamy | |
| Full Court Hearing | [2018] HCATrans 141 | |
| Special Leave Hearing | [2018] HCATrans 73 | |
| Appeal from CA | [2017] NSWCCA 130 | |
| Trial Judgment |
[2015] NSWDC 423 |
On one reading of this decision, we really see nothing other than a retreat back to the common law of strikingly similar facts, underlying unity or distinctive modus operandi. After all, where there is a significant period of time between the tendency acts and the charges act, what else can the “link” be?? Otherwise, the tendency will always be described at a high level of generality.
On the other hand, it might be that some distinctive feature will provide the link even though it involves no striking similarity. For instance, if there is some “unity” in offending in that beyond merely being abuse of minors by a person having them in his care or under his supervision, he tends to exploit those showing signs of homesickness or poor adjustment to boarding school or residential care, that my be enough under the Uniform Evidence Act – even though not sufficient to show striking similarity at common law.
Edelman J makes an interesting observation at para [35]. His Honour said: “[The evidence concerning the earlier uncharged acts] assisted to establish that the appellant had a state of mind involving a sexual interest in early teenage male children under his supervision and a willingness to act upon that state of mind. But that support was not strong. Unlike in Hughes, where the tendency evidence was also expressed in reasonably general terms, the evidence in this case was given only by two witnesses. Their evidence involved two incidents that occurred a decade before the date of the alleged offences against ‘A’.”
Does this mean that there is some sort of calculus of cogency of tendency evidence? If there are 5-10 witnesses who give evidence providing only a link at high level of generality about uncharged events said to have occurred 10 years before the charged acts, that might be enough to get the tendency evidence in. If only 2 witnesses give evidence about uncharged events 10 years past, then there must be some peculiarity in the tendency evidence to cut the mustard. Preferably, the latter might involve something like an offender’s tendency to want sex whilst wearing the garb of a Red Indian Chief — to quote one the Lords in DPP v Boardman (I think) who gave this somewhat politically incorrect example. On the other hand, is generally similar but not strikingly similar evidence from 2 witnesses about uncharged events which are said to have occurred only 1 year before the charged event to be let in??
I can’t help thinking that there is something a bit dubious also in the assumption that sexual tendencies or orientations tend to be enduring or embedded in the human personality. It does seem to be the somewhat politically correct view nowadays entertained in respect of a homosexual tendency — yet it was not that many years ago that the more respectable view, which certainly would have been entertained by many middle class jurors, that homosexuality has a basis simply in immaturity, which many people would or could grow out of, especially with appropriate medical or psychiatric treatment or moral guidance. My point is that some of our ideas about human tendencies are subject to changes in fashion and variations in the climate of correctness or generally held views. Whether these ideas really should be what informs jury verdicts and their weighing of the cogency of tendency evidence seems to me doubtful.