In McPhillamy v The Queen, the High Court held that tendency evidence which related to acts committed ten years prior to the charged acts did not possess significant probative value and was therefore inadmissible. In essence, the evidence was flawed because of amount of time that had elapsed between the charged acts and the acts constituting the tendency, the lack of a similarity between them, and the way the tendency was characterized.
[Content warning: sexual offending]
McPhillamy was an appeal from the NSWCCA where a majority (Harrison and RA Hulme JJ, Meagher JA dissenting) had found that the evidence in question was both significantly probative, and that it outweighed any unfairly prejudicial effect that the evidence would have.
The Appellant was convicted for committing sexual offences against “A” sometime in either late 1995 or early 1996. “A” was 11 years old at the time. The conduct was alleged to have occurred in public toilets at Cathedral in Bathurst on two occasions. “A” was an alter boy under the supervision of the Appellant.
At trial, evidence from two other people, “B” and “C,” was admitted to show that the Appellant had a tendency to have a sexual interest in early teenage boys and to act on that interest.
The evidence from B and C described sexual offences committed by the Appellant in 1985 when they were both boarders at a college where the Appellant was an assistant house master.
The majority in the NSWCCA found that the evidence did have significant probative value because, despite the differences between the earlier incidents and the amount of time that had elapsed, there was still an “overriding similarity” between the three accounts. The majority concluded that it was open to the jury, applying “collective wisdom and common sense to reason that [the tendency was] unlikely to become attenuated over an interval of ten years” (at ). For Meagher JA, the probative value of the evidence was not significant because there was an “absence of sufficient similarity between the conduct relied on [to demonstrate the tendency] and the charged conduct” (at ).
Interestingly the majority in the NSWCCA did not consider in detail whether the probative value would outweigh any prejudicial effect, simply observing that such a submission “cannot be accepted for the reasons provided by Meagher JA.” However, as the High Court majority pointed out (at ), Meagher JA’s discussion at that paragraph was not addressing the s101(2) balancing test – and the ‘ordinary’ unfair prejudice occasioned by tendency evidence – but rather considering (and rejecting) additional factors that the Appellant said enhanced the unfair prejudice flowing from the evidence’s admission.
The High Court
In short, the majority (Kiefel CJ, Bell, Kean and Nettle JJ) agreed with Meagher JA. They found that while the evidence was relevant, it did not have significant probative value (at ).
Their Honours reiterated the two step process outlined in Hughes. First it is necessary to determine whether, and to what extent, the evidence is capable of proving the tendency. Then, second, the court needs to determine whether the tendency make it more likely that the offence was committed.
B’s and C’s evidence was capable of establishing that the Appellant tended to have a particular state of mind – namely a sexual interest in teenage boys. This needs to be differentiated from a tendency to act on such an interest, which, the majority held, is generally what give this kind of evidence its probative value.
At trial, the prosecution had characterized the evidence as being a tendency to act on the relevant sexual interest. Thus the necessary inference would have to be that, not only did he still have the sexual interest (which may well be the case), but that he still tended to act on it. Such an inference was, as the majority put it, “weak” because it was evidence of conduct from ten years ago, and there was no evidence of similar conduct in the intervening years (at ).
Citing Hughes and Bauer, the majority also observed “where … the tendency evidence relates to sexual misconduct with [someone] other than the complainant, it will usually be necessary to identify some feature of the … sexual misconduct … which serves to link the two together” (at ). Here, the asserted link was that all the boys were under the Appellant’s supervision.
However, the majority differentiated between the circumstances of the tendency evidence and the charged conduct. Their Honours observed (at ) “[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 [the complainant’s] account that the appellant followed him into a public toilet and molested him.”
Edelman J concurred with the reasons of the majority but fleshed out why, on his view, the two step process in Hughes meant that the evidence was inadmissible. As for the first step, his Honour found that B’s and C’s evidence did not provide strong support for the tendency. The situation here was unlike that in Hughes because here, the evidence was from only two witnesses whereas in Hughes there were five complainants, and six other witnesses.
His Honour then found that the tendency did not make it more likely that the fact in issue had occurred. For his Honour, this was because of the high level of generality with which the tendency was characterized, and the lack of similarity between the conduct described in the tendency evidence and the charged acts.
New admissibility rules for evidence
The NSW Parliament has just passed an amendment to the Criminal Procedure Act which has broadened the circumstances in which evidence of the kind considered in this case. The new s 294CA allows the prosecution to admit the evidence given by a complainant in one trial for certain sexual offences to be admitted as evidence against the same defendant in another trial with different complainant. Section 294CA(4) provides that this evidence is admissible “despite anything contrary to the Evidence Act.”
While it seems that the Appellant was charged for the the conduct described by B and C, its not made clear whether these allegations made it to trial. If they did, and subject to the Court’s exclusionary discretion in s 294CA(8), then it would seem that under this new regime the evidence would be prima facie admissible.
If this evidence was determinative in the jury’s reasoning process, then it would seem that the new legislative regime would allow the admissibility of evidence that lacks significant probative value, and for the reasons outlined by the High Court, unreliable.
(this post was originally published on Amicus on 23 November 2018)