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Key decisions

  • Hughes v The Queen [2017] HCA 20
  • Air New Zealand v Australian Competition and Consumer Commission; PT Garuda Indonesia v Australian Competition and Consumer Commission [2017] HCA 21
  • New South Wales v DC [2017] HCA 22
  • Rizeq v Western Australia [2017] HCA 23
  • The Queen v Dickman [2017] HCA 24
  • GAX v The Queen [2017] HCA 25


Tendency evidence – similarity of facts – ‘significant probative value’

In Hughes v The Queen [2017] HCA 20 (14 June 2017) the appellant was convicted of nine counts of sexual offences against five underage girls. A part of the case against the appellant was evidence said to show a tendency that the appellant had a sexual interest in females under 16, used his social and familial relationships to get access to children, and engaged in conduct including sexual activity in the vicinity of another adult.

Under s 97 of the Evidence Act 1995 (NSW), tendency evidence is to be excluded unless the court thinks it has ‘significant probative value’. The trial judge allowed the evidence in; the Court of Appeal dismissed an appeal.

Relying on Velkoski v The Queen (2014) 45 VR 680, the appellant argued that tendency evidence needs to have sufficient common or similar features with the conduct in the charge in issue before it will have significant probative value. The High Court rejected that approach.

The Court held, by majority, that the admission of tendency evidence is not conditioned upon the Court’s assessment of similarity between the evidence and the conduct in issue, though the probative value of such evidence will often depend on similarity. Where the occurrence of the offence charged is in issue, the assessment of probative value includes two considerations: whether the evidence supports proof of a tendency; and the extent to which the tendency supports the proof of a fact that makes up the offence charged.

The majority held that the tendency evidence in this case did have significant probative value because, when considered with other evidence, it tended to show that the appellant engaged opportunistically in sexual acts with underage girls, notwithstanding the evident risks of detection. That evidence was capable of removing doubt about the appellant’s conduct. Kiefel CJ, Bell, Keane, and Edelman JJ jointly; Gageler J, Nettle J and Gordon J separately dissenting. Appeal from the Court of Appeal (NSW) dismissed.

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