- In order to have ‘significant probative value’ it is not a requirement that tendency evidence be similar to the charged conduct.
- Identifying the facts in issue in each particular matter is a critical step when determining if tendency evidence is of ‘significant probative value’.
- Consider the tendency notice prepared by the Crown, the proposed tendency evidence, the entire Crown case and your instructions before identifying the facts in issue. Then determine whether or not the tendency evidence needs to be similar to the charged conduct at all, and if so, to what degree, in order to meet the test of ‘significant probative value’.
Between 1995 and 2014, there was an almost doubling in the reporting of child sexual abuse or child sexual assault offences in NSW. (The reports went from 2625 in 1995, to 5200 in 2014. See Cashmore et al, ‘The impact of Delayed Reporting on the Prosecution and Outcomes of Child Sexual Abuse Cases’, University of Sydney Law School, August 2016, 58.) Consequently, child sexual assault cases have become ‘essentially the bread and butter of most of the … intermediate court trials’ (Hughes v The Queen  HCATrans 016). These matters (along with adult sexual assault cases) generate particular evidentiary and procedural challenges, and over time both criminal law and trial procedure have developed and adapted accordingly. (See for example the Child Sexual Abuse Pilot Program; sexual assault communications privilege provisions in the Criminal Procedure Act 1986 (NSW) and clarification of the Murray direction in Ewen v R  NSWCCA 117). The most recent of these decisions is Hughes v The Queen  HCA 20 (‘Hughes’) which focuses on the criteria for ‘significant probative value’ in s 97(2)(b) of the Evidence Act 1995 (Cth) (‘the Act’).
The appellant, Robert Hughes, faced 11 counts of sexual offences committed against five female children aged between six and 15 years between 1984 and 1990. The sexual acts varied. For example, two counts involved digital penetration, another involved kissing and touching over clothing, some involved masturbation of the appellant by the victims, whereas others involved exposure by the appellant of his penis. Their contexts varied also: some offences occurred at the appellant’s home in his lounge room or daughter’s bedroom, others at the beach, some were at night, some were in the daytime.
The Crown gave notice that it would seek to adduce evidence from each victim and from other women as ‘tendency evidence’. (A detailed explanation of the tendency notice prepared by the Crown pursuant to s 97(1)(a) can be found in the judgment of Nettle J in Hughes). The uncharged tendency evidence came from two sources: women who, as children, were subjected to indecent touching by the appellant when in his care or at his home; and women, who, as adults, were employed to work in the costume department on the set of ‘Hey Dad’, and who asserted that they had been indecently touched or were subjected to indecent behaviour by the appellant. The appellant challenged the admissibility of the tendency evidence on the basis that the charged and uncharged tendency evidence lacked sufficient similarity to have ‘significant probative value’. The trial judge, Zahra DCJ, held that the probative value of the tendency evidence was significant in circumstances in which the fact in issue in each count was whether the charged sexual conduct occurred. In that context, Zahra DCJ found that there was a pattern of behaviour, which, if not striking, was manifest.