(The post was originally published on Amicus on 14 June 2017)
In a 4:3 decision, the High Court handed down judgement today in Hughes v R. In doing so it resolved a divergence between the VSCA and the NSWCCA regarding how to determine whether tendency evidence has significant probative value.
This post will outline the important aspects of the majority’s reasons. The dissenting judgments will be covered in later posts.
- For tendency evidence, assessing whether probative value is significant is a two-stage process:
- First, does the evidence, by itself or together with other evidence, strongly support proof of a tendency, and
- Second, does the tendency strongly support the proof of a fact that makes up the offence charged (i.e. a fact in issue).
- It is not (always) required to demonstrate commonality or substantial similarity between tendency evidence and the charged acts in order to demonstrate significant probative value.
- Where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.
- Assessing how significantly tendency evidence affects the probability of a fact in issue will depend on the specific tendency that is sought to be demonstrated, and the “well-known principles of logic and human experience.”
- In light of the “open-textured, evaluative task” involved in assessing significance and the consequences of getting it wrong, prosecutors may need to conservatively assess what tendency evidence they will rely on.
As a quick recap – tendency evidence – s 97 of the Evidence Act – is evidence that shows that a person tends do certain things or have certain states of mind. Note the “state of mind” bit – this is important to the majority’s reasoning.
To be admissible, tendency evidence must have significant probative value. That is to say, it must rationally affect the probability of a fact in issue to a significant extent. This can be either by itself or having regard to the other evidence in the trial.
(In case you were wondering – the higher threshold in s 101 of the Evidence Act – that the probative value must outweigh the (unfairly) prejudicial effect on an accused was not in issue in this appeal).
The NSWCCA had rejected an appeal from Zahra DCJ’s decision to admit certain evidence to show that the accused had “a sexual interest in female children under 16 years of age” and that he used “his social and familial relationships … to obtain access to female children under 16 years of age so that he could engage in sexual activities with them.”
In the NSWCCA, the appellant had argued that the evidence did not have “significant” probative value because the evidence relied upon to show the tendency was so varied. This was in part based on the Velkoski decision in the VSCA, which found that for tendency evidence to be admissible there needs to “sufficient common or similar features with the conduct in the charge in issue so as to demonstrate a pattern that cogently increases the likelihood of the occurrence of that conduct”. (Velkosi at ). In other words, the Velkoski test required the evidence adduced to show a tendency to be pretty similar to the conduct in issue in the trial.
The NSWCCA rejected this argument, and the reasoning in Velkoski. Instead, their Honours affirmed the approach taken in R v Ford, R v PWD and Saoud v The Queen and found that the evidence in question in Hughes made the commission of the offence significantly more likely (NSWCCA at  and ).
Grounds of appeal
The appellant was granted special leave to appeal on two grounds:
- That the Velkoski approach is the correct way of assessing whether evidence has significant probative value, and
- That the tendency evidence in this particular matter did not possess significant probative value.
The majority found that the Velkoski approach was “unduly restrictive” when it comes to Tendency Evidence (at ).
Their Honours started by discussing the reasoning process that operates where tendency evidence is used. First the trier of fact must be satisfied that the person in question tends to have a particular state of mind or act in a particular way. Then they need to to be satisfied that the person had that state of mind or acted in that way on the relevant occasion. The Court noted that “the starting point … requires identifying the tendency and the fact(s) in issue which that tendency is adduced to prove” (at ). In this context, the majority briefly – and approvingly – discussed the approach in Ford and PWD.
The High Court then reviewed and rejected the approach taken by the VCA in Velkoski. The Victorian judgment viewed similarity or commonality as “inherent in the notion of ‘significant probative value’ (Velkoski at ).
VSCA held that what the majority in the High Court described as “common law concepts of “underlying unity”, “pattern of conduct” and “modus operandi” [should] inform the assessment of whether evidence is capable of supporting tendency reasoning.” This was at least partially based on the idea that the provision seeks to prevent unfair trials. The majority rejected this basis – noting that the tendency provision applies in both criminal and civil matters, and that s 101 provides the relevant protection in the case of criminal matters.
So how should significant probative value be assessed?
There were two limbs to the majority’s rejection of the VSCA’s approach.
First, importing a requirement of commonality is not consistent with the language of the section. As the majority put it (at ), “[t]he omission of these familiar common law concepts is eloquent of the intention that evidence which may be significantly probative for the purposes of s 97(1)(b) should not be [so] limited.”
Second, the strength of evidence – i.e. the extent to which it will rationally affect a fact in issue – depends very much on what the fact in issue actually is. If the fact in issue is the identity of the offender where there is no doubt that the offence took place – the tendency evidence will usually need to show close similarity to the charged offence:
 The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence (see also ).
However, the position is different where it is disputed that the offence took place at all. In such cases, the majority observed that:
 The assessment of whether evidence has significant probative value … involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi“. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
“…the court thinks”
In outlining the approach for determining whether the probative value of tendency evidence is significant, the majority noted that this is something upon which reasonable minds may differ. The majority acknowledged that this creates problems in marginal cases where witnesses don’t come up to proof or where appellate courts disagree about significance. Furthermore, it should be apparent that the admissibility of tendency evidence will turn in large part on the tendency particularised in the s 91(1)(a) notice. In this respect, the majority cited DKA v The State of Western Australia approvingly, observing that:
… the potential consequence of a new trial in cases where a conviction is overturned due to the wrongful admission of tendency evidence which was borderline should be a matter taken into account by the prosecution in assessing, perhaps conservatively, what tendency evidence it will rely upon.
And that the:
 … open-textured, evaluative task remains one for the court to undertake by application of the same well-known principles of logic and human experience as are used in an assessment of whether evidence is relevant.
So did the evidence in question have significant probative value?
In a word, yes.
The majority recounted the evidence of the various complainants, which I won’t go into here. Suffice to say that it involved sexual abuse of a number of children, of varying ages and in varying circumstances. Much of this evidence came from complainants, and formed the basis of the eleven counts against the appellant. There was also evidence of uncharged acts from both complainants and other witness.
Without getting too much into the intricacies, the gist of the appellant’s argument was that the dissimilarity of the acts undermined the probative force of the evidence. In other words, the commission of one act, with its own unique circumstances could not (rationally) make it more probable that another act, alleged to have occurred in significantly different circumstances, had actually occurred.
The majority disagreed, observing that this argument ignored the tendency that the prosecution had alleged in the tendency notice (cf s 97(1)(a)), namely that the accused had a tendency “to act on his sexual interest in underage girls despite the evident danger of detection” (at ). Thus, for the majority, “The evidence as a whole was capable of proving that the appellant was a person with a tendency to engage in sexually predatory conduct with underage girls as and when an opportunity presented itself in order to obtain fleeting gratification, notwithstanding the high risk of detection.” (at ).
The majority illustrated this point “by hypothesising separate trials in respect of each complainant” in the absence of the tendency evidence and in light of the predatory and opportunistic nature of the appellant’s offending. Their Honours observed that
 [c]onsidered in isolation, JP’s evidence might have seemed inherently unlikely: the appellant, a family friend, at dinner in JP’s home, absented himself from the party and came into her bedroom, and without making any attempt to ensure her silence, commenced to invasively sexually assault her while his daughter lay sleeping in the same bed. The jury might well be disinclined to accept JP’s evidence as satisfying it, beyond a reasonable doubt, that the appellant had, in fact, engaged in conduct which was so much at odds with the jury’s experience of the probabilities of ordinary human behaviour. Proof of the appellant’s tendency to engage in sexual activity with underage girls opportunistically, notwithstanding the evident risk, was capable of removing a doubt which the brazenness of the appellant’s conduct might otherwise have raised.
 The force of the tendency evidence as significantly probative of the appellant’s guilt was not that it gave rise to a likelihood that the appellant, having offended once, was likely to offend again. Rather, its force was that, in the case of this individual accused, the complaint of misconduct on his part should not be rejected as unworthy of belief because it appeared improbable having regard to ordinary human experience.
This case gives some clear guidance on the admissibility of tendency evidence in certain matters. The guidance will be particularly relevant to child sexual assault matters. However, it is important to note that this was a bare majority: Nettle Gageler and Gordon JJ all wrote their own dissenting judgments.