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 ) 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 (). Absent that evidence, the probative value of the alleged tendency is weak ().
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.’ ().
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 ().
Writing separately with ‘brief additional reasons’, Edelman J noted (at ) 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 (). 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’ (). Although the prosecution suggested a more specific tendency on appeal, the accused was not confronted with that at trial (). In short, the combined weakness of each consideration meant that the evidence of ‘B’ and ‘C’ did not have significant probative value ().
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|| HCA 52|
|High Court Documents||McPhillamy|
|Full Court Hearing|| HCATrans 141|
|Special Leave Hearing|| HCATrans 73|
|Appeal from CA|| NSWCCA 130|
|| NSWDC 423|