In September 2019 the Bar Association of Queensland will send another volunteer delegation to teach at the Legal Training Institute of Papua New Guinea in Port Moresby. The team will teach at the 7th Commercial Litigation Workshop, as part of the professional legal training course for law graduates and future lawyers of Papua New Guinea.

The five day Workshop has been conducted each year since 2013. This year, the workshop will be conducted between 2 September and 6 September 2019, with classes and exercises in commercial litigation over the first four days. The fifth day is devoted to criminal law and litigation.

The team has always been well received at the Legal Training Institute of PNG and the Association is grateful for this opportunity to share experiences in the law with the future legal practitioners of Papua New Guinea.

The team this year will be led by Andrew Crowe QC, and will be accompanied by three judges, including Justice Logan of the Federal Court of Australia, who has joined the delegation from the Queensland Bar each year. The full Queensland team is:

• Justice John Logan RFD
• Judge Richard Jones
• Judge Bernard Porter QC
• Andrew Crowe QC
• Peter Callaghan SC
• Mal Varitimos QC
• Karen Carmody
• Andrew Skoien
• Mark Steele
• Joseph Crowley
• Liam Dollar
• Holly Blattman

On Monday 5 August 2019 Carl Heaton QC, as the Bar Council representative of the Bar Association of Queensland, announced the new barristers to the Honourable Catherine Holmes, Chief Justice of the Supreme Court of Queensland.

“May it please the Court. I have the pleasure of announcing the following practitioners present in court today have become barristers of the Supreme Court of Queensland since 7 November 2018 to 2 July 2019.

Mr Philip Michael Nolan Ms Chau Bich Donnan Ms Rachael Claire Taylor Mr Thomas Frederic Ritchie Ms Iris Gajic-Pavlica Mr San-Joe Tan Ms Sophie Jane Gibson Mr James Anthony Hughes Mr Daniel David Steiner Mr Jason Jean Ternel Dudley Mr Justin Sebastian Byrne Ms Gillian Shepherd Mr Robert Gabriel Gallo Ms Danielle Lu En Tay Ms Halley Tenielle Robertson Mr William Robert Pike Prizeman

I am pleased to commend each of these barristers to the Court.”

Marshall Cooke RFD QC

Presented by Justin Byrne

Nelson “Marshall” Cooke, known to most simply as “Marshall”, was admitted as a barrister in 1962 — the year of the Cuban Missile Crisis and also the year of the tragic death of film icon Marilyn Monroe. Closer to home in 1962 the Honourable Sir Own Dixon sat as Chief Justice, Robert Menzies was Prime Minister and Rod Laver won the French, Australian and US Open Titles and Margaret Court, not to be outdone repeated those same feats, French, Australian and US Opens.

Remarkably that was some 57 years ago now, the year when Marshall Cooke first graced the Queensland Bar with his eloquent nature.

Marshall has, over time, developed something of a multi-practice in the areas of Constitutional and Administrative, Property, Planning and Environment, Commercial, and Criminal Law and Marshall was appointed Silk in 1980.

He was also an Officer in the Royal Australian Navy and retired having attained the Rank of Commander and obtained the honour of receiving the Reserve Forces Decoration for his service. He has appeared in many military tribunals (including courts-martial) and inquiries, and whilst serving was in fact appointed as both a Defence Force Magistrate and also as Judge-Advocate in the Australian Navy.

In the mid to late 1960’s Marshall was elected and served as Councillor with the Pine Rivers Shire Council and was then subsequently elected Federal Member of Australian Parliament (Petrie) in 1972, and thereafter, sat as a Member of Joint Committee on Self-Government for the Australian Capital Territory.

Amongst Marshall’s many other achievements are being appointed Commissioner to inquire into financial and electoral corruption in Queensland Trade Unions in the late 1980’s and then Chief Commissioner appointed to inquire into the Privatisation and Sale of Papua New Guinea Banking Corporation in 2002.

Marshall has also held many other professional positions over the years including:

• Was Chairman of Queensland Barristers’ Admission Board
• He served 2 terms on the Bar Association Committee
• Was Member of the University of Queensland Law Faculty Board
• Acted as Counsel for PNG Government at Sandline (Mercenaries) Inquiry
• Had several Constitutional References in the PNG Supreme Court including the reinstatement of a Government Minister and also the Manus Island Detention Centre matter.

Amongst Marshall’s many hobbies and interests, he has in a former life represented Queensland in a winning Debating team when he was at the University of Queensland, and also found time to represent Queensland as a water polo player in the National Championship.

He was the Treasurer and later Chaired the Queensland Swimming Association not long after coming to the Bar, and notably, for his long association with Queensland Water Polo, he was duly awarded a Life membership of the Queensland Water Polo Association.

Marshall has had a long and distinguished career at the Bar. He has seen many aspiring young barristers come and go in that time, and has seen many changes in how we perform our roles from an administrative perspective. Life may well appear to have become somewhat complicated at times in that respect, but the reality is that whether it be 1962 or present day, 2019, the barrister’s role still requires the same certain attributes including:

• Capacity to think on one’s feet and respond to changing situations;
• Ability to think strategically;
• Always remain calm under pressure (or at least not show your panic);
• Speak well and hopefully enjoy public speaking.

These are things that Marshall Cooke has now done well for more than half a century, truly remarkable!

Can you all please join me in recognising Marshall Cooke for his outstanding contribution to the Queensland Bar and the fact that he survived more than 50 years in that regard!

John Gallagher QC

Presented by Sophie Gibson

There is a simply stated theme in John’s time at the Bar, the message is that real friendship is precious and that the bedrock of friendship is loyalty. It is a short credo, but it takes a deal of discipline to act by it.

No biography of John, no matter how brief, could be complete, without mentioning that his nickname is well known as “the Crocodile” or to those affectionate to him, “the Croc”. It is said that he will bite and not bark.

John, also known as “Gall”, was admitted to the Bar in March 1964. Gall did not start in an elite building. He first practised from rooms that were dubbed “Outs of Court”, before he was then able to purchase a room that became available in the actual Inns of Court, but the reality was that the junior Bar was only a group of about 50 barristers at that time, most of whom had served in the second world war, in different theaters.

Junior members would regularly gather together in the common room of the Inns of Court for luncheon provided by Bruno and his wife. Judges would regularly join these lunches on a Friday. Every barrister was very welcome to attend and to sit and discuss the gossip and news of the day. It was a very collegiate place.

The old Supreme Court building burnt down in 1968. When the new courthouse was built it had the then very modern feature of air conditioning. Fees were calculated as a fee on brief with subsequent “refreshers”. Time charging did not exist.

John found that appearing with great Silks was a tremendous learning experience. He appeared with some greats, including Gerard Brennan QC, Cedric Hampson QC and Dan Casey. He remembers Cedric Hampson QC, not just as being the finest practitioner of his era, but as also being a great leader and a great man.

John suffered a deep sadness in the very sudden and unexpected death of his first wife, Wendy, at a time when they had four young children. He remembers and cherishes the friendship of many colleagues who took care of him at that time. One of these was Cedric, another was Ian Callinan, both of whom showed him true friendship by their conduct.

Cedric gave John an instruction about a principle of legal practice. It was that one should never start a fight, but that if someone started a fight with you, you had to finish it. While John adhered rigidly to that principle it is fair to say that he actually did not need any instruction from Cedric about it. He has never thought the Bar is a place for the faint hearted and he believes in fearless advocacy. He also believes that no one should expect a prize for working hard or being intelligent. These are “givens”, as he says.

After many years at the Bar it is friendship and character that remain as the only important values to him. He has seen many great barristers and Judges come and go but good friendships have endured. As John became more senior and took Silk a new chapter of his life at the Bar opened up. I am told that one characteristic of the later years of his career was his encouragement of younger barristers. He saw that encouragement as a natural and enjoyable responsibility of a senior barrister, and as the way the Bar is meant to work.

John eschews the practice of barristers telling war stories that only reflect well upon themselves. It is boring for one thing, and also leaves out the other half of reality, which can be amusing and instructive, namely the stories where things do not go well for us. One of the features of being a friend of John’s is enjoying his great sense of humour, self-deprecating remarks, and his philosophical insights, often delivered with the witty turn of phrase of a keen observer of human nature.

And despite his many happy years at the Bar, John has never been so happy as he is now in retirement, enjoying the love and company of his delightful wife Susan.

Please join with me on congratulating John Gallagher on more than 50 years as a practicing barrister.

Lister Harrison QC

Presented by Rachel Taylor

Lister was born on the 1st December 1944. The youngest of four children, his father had been at the Bar and then went on to become a lecturer in law at the University of Queensland. His mother had lectured there too, in the English Department.

Lister’s mother died in 1945, and his father then died in 1966, which in fact led to him marrying Gailene later that same year, rather earlier he says than would otherwise have happened, since he states that in those days it would have been scandalous for them to live together whilst unmarried.

Lister and Gailene went on to have three children and six grandchildren, all of whom still live in relatively close proximity to their parents. Lister himself attended Church of England Grammar School (now called the Anglican Church Grammar School) Brisbane. Between 1967 and 1968, Lister was Mr Justice Gibb’s associate. He followed his Honour Justice Gibbs from the Federal Court of Bankruptcy sitting in Sydney and Melbourne, to the Supreme Court of the Australian Capital Territory sitting, of course, in Canberra.

Whilst living in Sydney, Lister was able to take advantage of his dual residence to “straddle the dingo fence”, and get admitted in both Queensland and New South Wales. However, when Lister’s associateship finished and upon his return to Brisbane, he then developed a practice principally in crash and bash and legal aid maintenance.

Also, by the time of his return to the Queensland Bar, Lister had noticed that the Barristers seemed to make real money from trials and barristers had a disinterest (at least at that time) in writing opinions. So, he duly adopted the strategy of producing a satisfactorily profitable opinion practice. In 1983, he took Silk.

After a few years at level 17, of the then MLC, Lister set up chambers by himself on level 12 of that same building. When the accountant occupying the space next to him was sent to jail for tax fraud, and that space became vacant, Lister was approached by the now Australian High Commissioner to the UK and former Senator and Attorney General, George Brandis, amongst others, to establish a new group on that floor. These are the chambers that have continued in one form or another to become today’s Gibbs Chambers at No 95 North Quay. David Russell QC, a long-time member of that group and devoted fan of Lister’s, apologises for not being with Lister to celebrate tonight.

Lister’s practice at the Bar has taken him on many travels, including to Johannesburg — for the South African rebel cricket tour, in breach of anti-apartheid sanctions. In the inevitable litigation that followed, when the then Foreign Minister, Bill Hayden, refused Lister’s clients’ visas to come to Australia, Lister and the other lawyers (who included Stephen Charles QC and Peter Heerey of Melbourne) had to travel to Johannesburg to take instructions.

Again, although Lister was briefed extensively for one particular developer involved in the home unit litigation that fed the Bar in the earlier part of the 1980s, much to his consternation he had to return the brief for that client in order to fulfil a promise to Gailene’s mother to take her and the family on a Pacific cruise. But by doing that he avoided the indignity of having to tug the forelock to the representatives of a foreign power when that client’s litigation ultimately ended up before the Privy Council.

However, his attitude to the Crown is now somewhat similar to his attitude to his appendix, that is if it’s not playing up, then best leave it alone. Lister was offered a Centenary Medal in 2001 for “services to the law”, but politely declined the offer.

Lister’s wife tells us that he comes from a long line of spendthrifts to the extent that, for example, in Aesop’s fable of the ant and the grasshopper, he has always sided with the grasshopper. Nevertheless, he advises that he has promised faithfully that once he has paid his current tax bill, he will definitely start saving for his future retirement.

And perhaps consistently with his hopefully new-found frugality, tonight he is wearing a dinner jacket that his father had made for him by Christison and Burnett, High Class Tailors, of the Commercial Union Building, Eagle Street, the typed label in the inside pocket of which bears the date March 1963.

Please join me in congratulating Lister Harrison on his outstanding service as a barrister of more than 50 years standing.

Ian Hanger AM QC

Presented by San-Joe Tan

Ian was called to the Bar in December 1968.

It was an interesting bunch: Lister Harrison QC, Angus Innes, Justice Richard Chesterman, Justice Bob Douglas, Bob Hall, Judge Gary Forneau, Kevin Martin and Judge Philip Nase.

Ian spent 1969 and 1970 in London attending operas, plays, ballets and concerts, working in Lavender Hill, serving in the Royal Green Jacket Regiment and making the acquaintance of a certain Mr McKenzie — whom the world thinks — he befriended. He would deny that, but it resulted in a certain famous case.

After returning overland to Australia — doing some devilling in Hong Kong on the way — his first case was a dividing fences matter. Totally bamboozled by a subject that they didn’t teach in law school, he consulted his master soon to be Justice Bill Pincus — then a successful junior. Bill’s sound advice was that there was actually an Act of parliament called the Dividing Fences Act and perhaps it would be a good idea to start there. Ian did just that.

In those days he cut his teeth with Justices Fryberg, Chesterman, Harrison, and Spender valiantly fighting about $500 claims. Together, and headed by George Fryberg; Richard and Ian began Moore Chambers in the then Ansett Centre.

Subsequently they moved to the level 17 of the MLC Building with Harrison, Pincus, Thomas, Glen Williams, Richard and David Cooper, and David Robin, Jeff Spender and Brian O’Donnell

In 1976, Ian had the privilege of going to the Privy Council as junior to Bruce McPherson and appearing against John Macrossan leading Bill Carter leading Jonathan Sumption. Sometime thereafter, his wife tried to persuade him whilst they were in London, to look up his old client Mr McKenzie whom he had made famous but he didn’t seem inclined to do so.

In the seventies, he accepted and enjoyed doing a great deal of private prosecution work in the District Court and, as a prosecutor, referred in glowing terms to Jack Kimmins DCJ.

Ian enjoyed being in a number of matters with the Solicitor General for Australia Sir Maurice Byers and in that role worked with Bill Gummow and Bob French, both of whom of course went on to became Justices of the High Court. When Mabo was just a letter before action, Sir Maurice, Bob French and Ian spent a full week in conference discussing land rights cases in order to advise the then Commonwealth Attorney General.

Ian was also involved with Bill Pincus in advising on liability in the Agent Orange litigation and in respect of the Commonwealth’s liability arising out of the Maralinga Atomic bomb tests.

In one matter, Warman v Dwyer, he was soundly thrashed by Danny Gore in the High Court and his wife says she is still traumatised about it. This may account for any odd conduct you might have seen throughout the last 20 years.

In 1988 he was Chair of the Committee of Inquiry into the Industrial Relations System in Queensland and his report was praised by both unions and employers. He was senior counsel assisting both the Parliamentary Judges Commission of Inquiry and the Inquiry into the Criminal Justice Commission. As if those inquiries were not enough, he was the commissioner for the Royal Commission into the Home Insulation Program.

He has been an adjunct professor at the University of Queensland and has been made a permanent honorary professor at Bond University.

In 1990 he began mediating — 2,000 mediations later is where he is today. To be fair he is something of an expert, having led workshops in London, Edinburgh and Hong Kong and given talks in many other countries too. As recently as this month he was invited to give a paper at the Malaysian ADR conference. He is a mediator for the Court of Arbitration for Sport and an arbitrator for the Chinese International Economic and Trade Arbitration Commission and is conducting an arbitration in Beijing in November.

At the end of last year Griffith University conferred on him an Honorary Doctorate. He has not retired, and we are reliably informed that his wife won’t let him. She often reminds him of Bert Klug’s wise advice “Life is like riding a bicycle. If you stop pedalling, you will fall off”.

Please join with me in congratulating Ian Hanger on more than 50 years as a barrister in Queensland.

Several members of the Queensland Bar recently attended the Australian Bar Association’s international conference in Singapore on 11 and 12 July.

The program consisted of both plenary sessions and smaller streams exploring a diverse range of issues from consideration of the need for an international commercial court for Australia to cross-border insolvency and third-party litigation funding.

The conference was opened by a joint address by the Honourable Chief Justice Kiefel AC of the High Court of Australia and the Honourable Chief Justice Menon of the Supreme Court of Singapore. Their Honours spoke about the common legal heritage of Australia and Singapore as well as the developing institutional bonds between the courts and legal professions of both countries.  Engagement by the Bar as a whole with the broader profession and in the region was a focus of the conference. Sessions including a panel of senior in-house counsel, issues in international arbitration and the report prepared by the Honourable Roger Gyles AO QC on opportunities for Australian barristers in international arbitration. There was a strong feeling among presenters that Australian counsel were under-represented in international arbitration work compared to other overseas lawyers, and particularly members of the London bar.

Practical skills and practice development were also covered across the conference, including sessions on ‘the seven deadly sins of oral advocacy’, digital practice management and expert evidence. Junior members of the bar were particularly appreciative of the opportunity to sit down with senior counsel from around the country at a ‘meet the silks’ session.

Contributions by Queenslanders to the program were well received, with presentations by Peter Dunning QC (anti-suit injunctions), Cate Heyworth-Smith QC (a comparative discussion of ethics in advocacy) and Kathryn McMillan QC (expert evidence – 21st century challenges).

Convergence 2019 concluded with a black tie dinner (with big band) at the magnificent Clifford Pier, capping off a lively program of social events which also included arrival rooftop drinks and a welcome event at the National Gallery of Singapore.

Conference chair Dominique Hogan-Doran SC and her team deserve congratulations for putting together an engaging and comprehensive program. From Singapore, the ABA National Conference returns home, being co-hosted by the Queensland Bar in combination with our annual conference.

Save the date: 2020 BAQ ABA Conference, 5-7 March 2020, W Hotel Brisbane

Jules Moxon, Barrister 

The inaugural Indigenous Law Student Program commenced on 8 April 2019 with the successful student, Ms Charlotte Batterham, attending the first component of a three tiered internship scheme. The Program is designed as an introduction to life at the Bar, encompassing three weeks experience with the Courts and in Barristers’ chambers. A joint initiative of the Bar Association of Queensland in partnership with the Queensland and Federal Courts, the program provides an innovative and solid foundation to support Indigenous law students with the intention to increase the number of Indigenous Barristers at the Queensland Bar.

Ms Batterham spent her first week at the Federal Court under the guiding hand of the Honourable Justice Collier. An intensive schedule included an introduction to the Registry of the Federal Court and the Federal Circuit Court with case managers, involvement with the Federal Court Native Title team and time spent in Court with Justice Collier and Justice Jarrett. The program, structured by the Court, included an in-depth examination of how a case progresses through the Court system­—from new online e-lodgement to final judgement.

At the Supreme Court, Charlotte’s second week involved attending Court every day, including observing applications, a civil trial and a criminal trial. Each day the immersive experience concluded in a debrief with the Honourable Justice Phillipides, who provided context and insight into the day’s proceedings.

Ms Batterham described the program as an invaluable experience:

“It is often said, we don’t know what we don’t know until we know it, and how true it is after experiencing a week of seeing our Courts in action. Seeing behind the scenes of the Federal Court and the Supreme Court, along with attending Court, bought together all of the pieces of knowledge learnt while undertaking my law degree.”

The final component of the program, a week in Barristers’ chambers, will take place in the university break in September. The program aims to bring the theoretical learning of study to the real world, crossing a range of legal areas, dependent on the candidate’s interests. Access to the legal system, accompanied with the opportunity to meet and experience the everyday routine of Barristers and the Judiciary, provides the opportunity to break down barriers for Indigenous law students who may be considering life at the Bar.

Ms Batterham encourages other Indigenous law students to apply for the program. “I am grateful I had support to gently nudge me to apply for the opportunity,” she said.

“The Judges and their associates are impressive people, dedicated, genuine and supportive. As Mark Twain says ‘It is noble to teach oneself, but still nobler to teach others’.”

Application for the 2020 Indigenous Law Student Program close on 30 September 2019.

The Association would like to express its thanks to Justice Collier and Justice Philippides for their Honours’ contribution and assistance in making the program such a success.

Nadine Davidson-Wall 

A.K.A. Mullenjaiwakka

6 April 2019 saw the passing of Australia’s first Indigenous barrister, Lloyd Clive McDermott, also known as Mullenjaiwakka. John Fraser wrote this tribute to Mullenjaiwakka after joining family, friends and colleagues at the celebration of Mullenjaiwakka’s life at Randwick Golf Club on 16 April 2019.

 

Mullenjaiwakka

11 November 1939 — 6 April 2019

It is with great sadness that I write this tribute to the great man, Lloyd McDermott, a.k.a. Mullenjaiwakka, who passed away on 6 April 2019.

Lloyd was born in Eidsvold in 1939. His father, Clive, worked as a farm labourer. His mother, ‘Aunty Vi’, instilled in Lloyd the need to apply himself.

In 1955 Lloyd’s parents, having saved the necessary money, were able to send Lloyd to Church of England Grammar School (Churchie). It should be noted that Lloyd’s parents were not people of means. Lloyd eventually was awarded an academic scholarship and so was able to finish his schooling at Churchie.

Lloyd was a brilliant sportsman, excelling in all sports, but particularly prominent in Rugby and Athletics. From Churchie, Lloyd went on to study at the University of Queensland. Again, he was prominent in Rugby and was a member of a very successful first-grade team that won a number of premierships. He represented Queensland and, in 1962, was selected to play for the Wallabies against the All Blacks. He was the first Indigenous man to achieve such selection.

In 1963 Lloyd was a certain selection to tour South Africa as a member of the Wallabies. However, Lloyd effectively ruled himself out of selection when he refused to accept “honorary white” status from the South African Government. The man of unfailing principle could not, and would not, accept such a title.

Lloyd later went on to study law and, in 1972, was admitted to practice as a Barrister. Lloyd was Australia’s first Indigenous person to be admitted as a Barrister.

Lloyd worked for a time at the Commonwealth Deputy Crown Solicitor’s office and then, in around 1976, went to the private Bar in Sydney. He practised mainly in criminal law and developed a very busy practice. In recent times, Lloyd was a member of the Mental Health Tribunal of NSW.

In addition to his legal work, Lloyd had a great love of music, reading and travel.

Another one of Lloyd’s great achievements was the establishment of the Lloyd McDermott Development Team, which has helped many young Indigenous men and women play Rugby and Netball. He also had a broader programme of supporting and encouraging young Indigenous persons in their educational pursuits.

Lloyd was a great family man. His two daughters, Phillipa and Judy, are testament to his love and warmth as a father.

I was fortunate enough to attend the Funeral Service for Lloyd on 16 April 2019. It was an inspiring occasion, which lasted about 3 hours and had as its backdrop the beautiful coastline around Malabar (Sydney).

It is very difficult to adequately sum up the life of someone such as Lloyd. He was a trailblazer, in many ways. He was highly successful, but always maintained an air of humility and kindness. His success was even more stunning given the times from which he emerged. As a sidenote, it is remarkable that Lloyd did not start school until he was 11 years old, as Aboriginal children were not allowed to attend school in his town.

Vale Lloyd McDermott, Barrister, activist, sportsman and family man. The world is a sadder place for your departure.

 

John Fraser, Barrister

The following is a selection of links to articles, papers and other items which may be of interest to readers.

Ceremonies

The President, Rebecca Treston QC, Welcome Ceremony for His Honour Judge Kenneth Barlow QC of the District Court of Queensland , delivered on behalf of the Bar Association on 26 July 2019.

The President, Rebecca Treston QC, Swearing-in Ceremony for His Honour Judge Terence Gardiner as Chief Magistrate of the Magistrates Court of Queensland , delivered on behalf of the Bar Association on 18 July 2019.

President’s Representative, Jim Murdoch QC, Swearing-in Ceremony for Commissioner John Dwyer, Commissioner Catherine Hartigan, Commissioner Jacqueline Power and Commissioner Roslyn McLennan , delivered on behalf of the Bar Association on 9 July 2019.

The President, Rebecca Treston QC, Swearing-in Ceremony for Magistrate Trinity McGarvie , delivered on behalf of the Bar Association on 5 July 2019.

The President, Rebecca Treston QC, Swearing-in Ceremony for Her Honour Magistrate Bronwyn Hartigan, His Honour Magistrate Kurt Fowler and His Honour Magistrate Peter Saggars , delivered on behalf of the Bar Association on 26 June 2019.

President’s Representative, Damien O’Brien QC, Valedictory Ceremony for Land Court Member Paul Smith , delivered on behalf of the Bar Association on 17 May 2019.

The President, Rebecca Treston QC, Valedictory Ceremony for the Deputy President Deirdre Swan of the Queensland Industrial Relations Commission delivered on behalf of the Bar Association on 10 May 2019.

The President, Rebecca Treston QC, farewell to the Honourable Justice Peter Murphy delivered on behalf of the Bar Association on 8 March 2019.

The President, Rebecca Treston QC, Welcome Ceremony for His Honour Judge John Allen QC and Her Honour Judge Vicki Loury QC delivered on behalf of the Bar Association on 8 February 2019.

The President, Rebecca Treston QC, Welcome Ceremony for Honourable Justice Wilson and the Honourable Justice Bradley delivered on behalf of the Bar Association on 8 February 2019.

The President, Rebecca Treston QC, Exchange of Christmas Greetings delivered on behalf of the Bar Association on 12 December 2018.

Judicial Speeches and Presentations

The Honourable Chief Justice Susan Kiefel AC, Convergence — the Courts of Singapore and Australia , joint keynote address with the Honourable Chief Justice Sundaresh Menon, Chief Justice of Singapore, ABA “Convergence 2019” Conference, Andaz Hotel, Singapore, 11 July 2019.

The Honourable Justice Peter Applegarth, Coverage and Criticism of Courts , Judicial Conference of Australia Colloquium, Darwin, 8 June 2019.

The Honourable Justice James Henry, his Honour Judge Dean Morzone QC, and his Honour Judge Gregory Lynham, Appellate Advocacy in Crime , 2019 NQLA Conference Townville, 24 May 2019.

His Honour Judge Bernard Porter QC, Forgiveness of Debt by Will: A Bone of Contention , STEP Australia National Conference, Brisbane, 17 May 2019.

His Honour Judge Paul Smith, Presentation on Sentencing , Magistrates Court Conference, Brisbane, 16 May 2019.

The Honourable Justice Virginia Bell AC, Cultural Change – The Shift from Party Autonomy to Court-Managed Litigation , Asia-Pacific Judicial Colloquium 2019, 28 May 2019.

The Honourable Chief Justice Allsop AO, The Foundation of Administrative Law , 12th Annual Whitmore Lecture, 4 April 2019.

The Honourable Justice Anthe Philippides, Repositioning the Arts in our Lives , keynote speech delivered at the launch of The Legal Forecast, Brisbane, 26 March 2019.

The Honourable Chief Justice Allsop AO, Technology and the Future of the Courts , TC Beirne School of Law, University of Queensland, Brisbane, 26 March 2019.

The Honourable Justice James Douglas, Sir Harry Gibbs and Papua New Guinea , Hellenic Australian Lawyers Association, Brisbane, 15 March 2019.

The Honourable Chief Justice Susan Kiefel AC, Aspects of the Relationship between the Law, Economic Development and Social Change and the Importance of Stability , 2019 Queensland Bar Association Conference, Brisbane, 2 March 2019

The Honourable Justice Anthe Philippides, speech delivered at the launch of the Asian Australian Lawyer’s Association Mentoring Program, Brisbane, 21 February 2019.

The Honourable Justice Sarah Derrington, Law Reform — Future Directions , Supreme Court and Federal Courts Judges’ Conference 2019, 21 January 2019.

2019 Supreme Court of Queensland Oration

Her Excellency Margaret Beazley AO QC, 100 years after Federation. Is it different? , Brisbane, 13 May 2019.

View Propensity Evidence Reform paper

View the Commentary of Benedict Power

By coincidence, the day after the Current Legal Issues Seminar on propensity evidence the Court of Appeal handed down R v Dewey [2019] QCA 161 which affirmed the correctness of the admission of certain propensity evidence. The decision is an illustration of the liberal application of the Pfennig test by the Court of Appeal of Queensland that Professor Hamer commented upon in his paper.

In R v Dewey , the indictment contained three counts of armed robbery of service station attendants that were alleged to have been committed by the appellant. Two of the robberies occurred on the one night two hours apart, one at Beenleigh and the other at Mt Gravatt. The third robbery was committed eight days later at Coorparoo.

The robberies were similar in that they all involved a man entering a service station late at night and then demanding money from the lone attendant at knife-point. The CCTV from each robbery showed that a similar looking person had committed each of the three robberies, but could do no more than that.

There were some differences in the robberies. In the first robbery, a bandana was used to disguise the robber’s face after he had initially entered the store. In the second robbery, the robber did have a bandana around his neck and was wearing similar clothing to the robber in count 1, but he did not attempt to disguise his face. In the third robbery, the robber did not have a bandana and he did not attempt to cover his face. The most unusual feature of the robberies was a blue coloured knife being used for robberies 1 and 3. That unusual knife was not observed in robbery 2.

The appellant had been caught soon after the third robbery in grey ute that was consistent with the getaway car for the third robbery. He was in possession of a significant quantity of cash, clothing that matched that used by the robber and a blue coloured knife. Therefore, there was a strong case in relation to the third robbery.

The Crown case at trial was if the jury were satisfied of the appellant’s guilt on count 3, then they could use evidence of the appellant’s commission of that armed robbery, in combination with the cross-over of similar features between the robberies to determine that the appellant had also committed the other two robberies eight days earlier.

McMurdo JA (with whom Gotterson JA and Douglas J agreed) held that a proper application of the Pfennig test permitted the jury to use the evidence of the three robberies in that way. McMurdo JA also noted that the model directions in Bench Book direction 52 had not been given. The absence of that direction was not an appeal ground and the Court held that defence counsel had made a considered forensic choice not to seek such a direction and no miscarriage of justice arose.

Benedict Power, Barrister

The following commentary was delivered by Benedict Power, Barrister-at-Law, in response to the paper delivered by Professor David Hamer of the University of Sydney. Professor Hamer presented at the Current Legal Issues Seminar Series, Criminal Law — “Current issues in Propensity Evidence” on Thursday 22 August 2019 at the Banco Court. The seminar was chaired by the Honourable Justice Soraya Ryan of the Supreme Court.

View Propensity Evidence Reform paper

View note on R v Dewey [2019] QCA 161

Professor Hamer’s paper is a great resource for practitioners. I have it saved on my computer and plan to turn to it whenever a propensity evidence issue arises.

The paper provides context to the development of the common law position (now Queensland’s alone), the Uniform Evidence Legislation (UEL) position and importantly also discusses the likely development of the law in this area.

There are three parts of Professor Hamer’s paper that I wanted to highlight from a practitioner’s perspective.

They are:

1. The difficulty of predicting an outcome under the Pfennig test and the UEL;
2. What standard of proof applies to propensity evidence before it can be acted upon— particularly given the comments in Bauer; and
3. The likely changes to the law on propensity evidence arising from the Royal Commission into Institutional Responses into Child Sexual Abuse.

1. Uncertainty in predicting outcomes under the Pfennig test and the UEL

The admission of propensity evidence is the application of a rule of evidence, not an exercise of discretion.

Lawyers should be able to consider a set of facts and predict an outcome, but in the area of propensity evidence that is a very difficult task.

By contrasting the different outcomes in cases with seemingly similar facts, Professor Hamer’s paper demonstrates the difficulty in being able to predict the admissibility of propensity evidence.

No real differentiation can be discerned between outcomes under the apparently less onerous UEL regime and the common law. At page 20 of his paper Professor Hamer states that his review of cases across jurisdictions “… suggests that the precise details of the test don’t matter”.

Professor Hamer describes Queensland cases where propensity evidence has been admitted under the common law Pfennig test, and it would appear that the Court of Appeal took a robust approach to the application of the Pfennig test.

To the cases mentioned by Professor Hamer can be added the case of R v Brown [2011] QCA 16.

In Brown the defendant’s prior conviction for common assault (albeit with a sexual overtone) against another person two years earlier was admitted as evidence to prove identity in a burglary and rape case.

A legal test is of little utility if it does not allow you to predict the outcome of the application of that test with any degree of confidence.

Do any of the current tests allow us to predict what common features between offending are sufficient to show a special, particular or unusual feature allowing the admission of the evidence?

The case of Hughes case in the High Court is a good example of that — the majority found that the preparedness to take risks and act brazenly was a compelling unifying factor for the quite different offences against various complainants. Yet Nettle J found that feature to be of no significance at all. [1]

From this analysis, Professor Hamer sets up what might be seen as his ultimate proposition — if the precise nature of the test used makes so little difference to the outcome, do we need such complex tests under the common law or under the UEL.

2. Standard of proof — Bauer

The Queensland Supreme and District Court Benchbook (Direction 70) states that in single complainant cases that unless a jury is satisfied of the uncharged evidence (relied upon to show sexual interest) they must not use it to reason towards guilt.

The Benchbook makes this statement:

“The better view would seem to be that the jury should be instructed not to act upon evidence of a sexual interest unless they are satisfied of that fact beyond reasonable doubt.” [2]

Similar (although much more involved) model directions are given relation to the use of propensity evidence in multiple complainant cases. [3]

As noted at page 17 of Professor Hamer’s paper in the context of a single complainant case, the High Court in Bauer [2018] HCA 40 [86] was critical of such directions. In the UEL context, the HCA stated that “ordinarily” it should not be given.

The High Court in Bauer stated at the end of [86]:

Contrary to the practice which has operated for some time in New South Wales [4] , trial judges in that State should not ordinarily direct a jury that, before they may act on evidence of uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt. Such a direction should not be necessary or desirable unless it is apprehended that, in the particular circumstances of the case, there is a significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt. [5]   And, as explained earlier in these reasons, a trial judge is precluded from giving such a direction in Victoria. [6]

(footnotes as in the original)

What then does that comment in Bauer mean for directions about propensity evidence under the common law of Queensland. To answer that there seems to be three separate considerations:

1. Bauer was under the UEL — Bauer itself did note at [52] the distinction between the UEL and more stringent test under the common law — that may make the circumstances in Queensland different (and our Benchbook committee has considered that to be the case even post-Bauer)
2. Bauer was a single complainant case — the comment in Bauer at [86] was made in that context and under the heading of “Jury directions in single complainant sexual offences cases”;
3. Finally, the comment in Bauer was qualified by the stating that this was “ordinarily” the case.

Professor Hamer has observed that the ordinary conception of proof being built cumulatively by all the evidence in a case meant that a direction that individual facts (as opposed to elements of an offence) having to prove beyond reasonable doubt was generally wrong. Professor Hamer cited Shepherd (1990) 170 CLR 573 at 584-585 (as was also cited by the High Court in Bauer on this point).

That would also seem to be common sense in a single complainant case where all the evidence comes from the complainant. If the complainant gives evidence of an uncharged act relied upon to show sexual interest — it would seem artificial for a jury to determine if they accept that allegation beyond reasonable doubt before they can use that evidence to determine the charged offences. After all, there is no similar direction that the jury cannot use the complainant’s evidence of charged acts to determine whether the other charged act or acts occurred without first finding it proved beyond reasonable doubt.

In a multiple complainant case where the evidence has been ruled to be cross- admissible it would be contrary to the cross-admissibility ruling to require that the jury determine if they accept complainant 1 beyond reasonable doubt without considering the totality of the evidence which includes the evidence of complainants 2 and 3 before the evidence about complainant 1 can be used for complainant 2 and 3.

However, there may be circumstances where the evidence does stand sufficiently separately from the other evidence that it could logically be considered on a stand- alone basis. The question then would be — is it necessary for it to be considered that way — accepting that to do so would not be the ordinary way that evidence is considered collectively to determine guilt?

Before answering that, a second and related question should be considered. If a juror is satisfied that an act towards a complainant occurred which is not unequivocally sexual — is the character of the act to be assessed in isolation from the other evidence before it can be used to show sexual interest?

This is primarily a question for a judge to determine – as the gate-keeper for the admission of such evidence. However, should the jury also be directed to consider this issue separately from the other evidence in the case and beyond reasonable doubt?

If the nature of an act relied upon as propensity evidence is in question, then there is a risk of circular reasoning if a direct allegation of sexual misconduct has been made and that allegation is then used to determine the character of some unrelated act, which in turn is then used to support the truth of the direct allegation of sexual misconduct.

The issue of what basis the ‘sexual interest characterisation’ of an act should be considered has not been resolved — at least with regard to the judge’s determination of the admissibility of evidence.

In R v Douglas [2018] QCA 69 McMurdo JA (with whom Sofronoff P and Brown J agreed) at [56] — [57] noted that as yet, there was no majority view in the High Court as to whether evidence could be probative of a sexual interest if its interpretation in that way was dependent upon the acceptance of other evidence in the prosecution case.

McMurdo JA said at [56] — [57] of Douglas:

[56] As to the second of those instructions, in BBH there was a division of opinion as to how a certain piece of evidence, said to be probative of a sexual interest by the accused in the complainant, was to be assessed. The evidence was from the complainant’s brother, who said that he had witnessed an incident involving his sister and the appellant (who was their father), which the prosecution said was probative of a sexual interest by the father in his daughter, and in turn, of his guilt on a charge of maintaining a sexual relationship with her. The appellant argued that the brother’s evidence was equivocal, in that the event which he described could have been something which had no sexual character. Hayne J, with whom Gummow J agreed, said that the evidence of the brother itself had to show that the accused had a sexual interest. Their Honours’ view was unchanged from HML, where Hayne J had said that the evidence of uncharged conduct is not admissible to prove a sexual interest if its interpretation of showing a sexual interest “depends upon the prior acceptance of other evidence of separate events demonstrating that interest”. In BBH, French CJ said that the brother’s evidence was not to be interpreted by “reference to evidence which the brother’s testimony was adduced to support”. French CJ, Gummow and Hayne JJ were in dissent, in holding that the brother’s evidence was inadmissible as propensity evidence.

[57] Of the majority in BBH, Crennan and Kiefel JJ (in a joint judgment) and Bell J held that the brother’s evidence was not equivocal, when it was viewed, not in isolation, but in conjunction with other evidence in the prosecution case. The other majority judgment was that of Heydon J. In his Honour’s view, the brother’s evidence had the capacity, taken by itself, to support a finding beyond reasonable doubt that, in the incident witnessed by the brother, the accused had either committed an offence of a sexual nature, or carried out other conduct, in either way revealing his sexual passion for the complainant. Consequently, in BBH, there was no majority view as to whether evidence could be probative of a sexual interest if its interpretation in that way was dependent upon the acceptance of other evidence in the prosecution case.

(Emphasis added and footnotes removed)

Based on Professor Hamer’s paper, it does seem that although Bauer was a UEL case, it does require a re-consideration of the circumstances of when a direction that uncharged acts must be proved beyond reasonable doubt is appropriate, even under the common law. However, given the nature of propensity evidence under the common law — it may remain appropriate in certain cases:

1. Cases where the evidence about other offending, or acts alleged to show sexual interest, arise sufficiently separately from the other evidence in the case, so that that evidence can logically be considered separately;
2. Cases where the acts relied upon to show sexual interest are equivocal — such that the risk of circular reasoning arises in determining their nature; and
3. Cases where the propensity evidence is so important that it is truly a link in a chain rather than a strand in a rope — i.e. a true ‘Shepherd point.’ This last point would require the trial judge to determine the importance of the propensity evidence in the context of the other evidence in the case and whether in a practical sense it could be considered separately from the other evidence. Importantly, the comments in Bauer acknowledge that such circumstances may arise.

3. The likely changes to propensity evidence from the Royal Commission

Professor Hamer has been involved in advising both the Royal Commission and the CAG — the paper is a very good primer on the likely changes.

Professor Hamer’s paper discusses the tension between the awareness by lawyers that CSO are a not uncommon allegation in our courts and the fact that CSO are very unusual amongst the broader population.

Professor Hamer quotes from the Royal Commission’s report where it was said in relation to propensity evidence in CSO cases— ‘The two most important similarities are already present — sexual offending against a child”. [8]

It seems likely that at least some States will move to a presumption of admissibility of prior CSO convictions in trials for CSO.

That gives rise to the question — if changes to the rules of propensity evidence were to apply to CSO — logically shouldn’t these changes apply more broadly.

To put it another way — by applying changes only to CSO — would this be a sign that we giving way to ‘moral panic’ about CSO — or would this be the appropriately cautious approach, restricting the changes to a class of offence where circumstances (and perhaps legitimate societal pressure) demand those changes.

Professor Hamer’s ultimate suggestion for reform is for a very simple test of more probative than prejudicial — although combined with a set of judicial guidelines.

This is a challenging suggestion as the test has the appearance of a discretion to admit evidence rather than a test under which the admissibility of evidence was ruled upon. However, as Professor Hamer has pointed out, a review of cases over time and under different regimes “… suggests that the precise details of the test don’t matter” [9]

It is important to recognise that not all lawyers will see the prospect of change to the law on propensity evidence the same way. There may not be a majority view towards dramatic change, minor change or no change at all.

In conclusion, I think Professor Hamer’s paper and the parts of the Royal Commission’s report dealing with propensity evidence [10] are critical reading for those interested in this area of criminal law and evidence.

Change in this difficult area of the law appears inevitable — whether the law will become more or less certain in its application is much less clear.

Benedict Power, Barrister 

[1] Hughes (2017) 344 ALR 187; discussed in Professor Hamer’s paper at pages 15 and 24.

[2] Benchbook Direction 70 – Evidence of Other Sexual or Discreditable Conduct of the Defendant. The passage quoted above is footnoted (fn 7) as follows:

That being the majority view in HML (see, particularly, at [247]); cf Bauer at 869 [86], which referred to the position in New South Wales where “tendency” evidence of this kind is admissible on a less demanding test than common law test according to Pfennig. In HML, Hayne J (Gummow and Kirby JJ agreeing) held that the standard of beyond reasonable doubt had to be applied in order to “reflect the legal basis for … admission [of the evidence]”: at [132].

[3] Benchbook Direction 52 – Similar Fact Evidence (although the degree of satisfaction is not specified as being “beyond reasonable doubt”).

[4] See for example DJV v The Queen [2008] NSWCCA 272 ; (2008) 200 A Crim R 206 at 217 [30] per McClellan CJ at CL (Hidden J and Fullerton J agreeing at 227 [58], [59]); R v FDP [2008] NSWCCA 317 ; (2008) 74 NSWLR 645 at 654 [38] ; DJS v The Queen [2010] NSWCCA 200 at [54] – [55] per Hodgson JA (Kirby J and Whealy J agreeing at [86], [87]).

[5] Shepherd v The Queen [1990] HCA 56 ; (1990) 170 CLR 573 at 584-585 per Dawson J; Gipp v The Queen (1998) 194 CLR 106 at 133 [79] per McHugh and Hayne JJ; [1998] HCA 21; HML v The Queen [2008] HCA 16 ; (2008) 235 CLR 334 at 360-361 [31] – [32] per Gleeson CJ in diss on point, 490 [477] per Crennan J in diss on point.

[6] See Jury Directions Act , ss 61 , 62 ; Beqiri v The Queen [2017] VSCA 112 at [121] , [130].

[7] Professor Hamer’s paper at page 12

[8] Professor Hamer’s paper at page 22, fn 153

[9] Professor Hamer’s paper at page 20

[10] Royal Commission, Criminal Justice Report (Cth of Australia, 2017), Parts III-VI – https://www.childabuseroyalcommission.gov.au/sites/default/files/file-list/final_report_- _criminal_justice_report_-_parts_iii_to_vi.pdf

Introduction

Thank you very much for the invitation to contribute again to the Current Legal Issues seminar series. I am a strong believer in the benefits of a dialogue between the academy, the profession and the judiciary.

My focus today will be on reform in the regulation of prosecution propensity evidence in the criminal trial. (I use the term ‘propensity evidence’ as a general term to include similar fact evidence, tendency and coincidence evidence.) The typical scenario involves the prosecution adducing evidence of a defendant’s other misconduct with the intention of inviting the jury to reason that, the fact that the defendant did this kind of thing before suggests that the defendant has a tendency to do this kind of thing and makes it more likely that the defendant committed the charged offence. Actually this is not too distant from the previous times I talked in this venue, regarding Phillips [1] and HML [2] respectively. Despite (I won’t say ‘because of’) the High Court’s repeated efforts, the area raises a lot of difficult questions. This time, while I will mention several recent HCA decisions, I want to focus on the prospects for legislative reform. This topic is timely given that the Council of Attorneys General is currently working on propensity evidence reform in the wake of the Royal Commission into Institutional Responses to Child Sexual Abuse. [3] I have provided advice to both the Royal Commission and CAG.

I will talk about the direction of reform being pursued by the CAG, against the backdrop of the current treatment of propensity evidence at common law and in the uniform evidence law (UEL). The regulation of propensity evidence has already been the subject of considerable legislative intervention over the last few decades. These days the UEL applies in the Cth, NSW, Victoria, Tasmania, and the Territories. In the area of propensity evidence, WA and SA have their own statutory provisions which bear some resemblance to the UEL. [4] Only Queensland still has the common law, albeit slightly modified. [5] While my focus here is on child sexual assault cases, the discussion has implications for tendency evidence generally.

While a degree of legal technicality will be unavoidable, I want to address the fundamental underlying issue — the potential of propensity evidence to contribute to ‘the effectiveness of the criminal justice system … in securing the conviction of those guilty of criminal offences and the acquittal of those who are innocent’. [6] This broader focus requires us to stray beyond matters beyond legal doctrine into a consideration of criminology and the logic and psychology of proof. So there is quite a lot to cover.

Exclusionary rules and admission tests — common law and UEL

I’ll begin by briefly outlining the admissibility of propensity evidence under current common law and the uniform evidence law provisions. Where this kind of reasoning is relied upon the evidence will be subject to an exclusionary rule both at common law and under the UEL. However, despite the exclusionary rule, the evidence may gain admission if it satisfies certain requirements.

Common law

The common law has evolved a great deal over the last hundred or so years. At one point, on one view, propensity reasoning was absolutely ‘forbidden’ and evidence revealing a defendant’s misconduct could only admitted for non-propensity purposes. [7] US law still appears to be expressed this way. [8] However, as the law moved into the second half and fourth quarter of the previous century, it became increasingly recognised that many of the supposed non-propensity purposes were fictions. Propensity evidence could be admitted to support propensity reasoning. However, where this was its intended function the evidence must have sufficient probative value to gain admission. As I’ll mention below, there are still lingering traces of the old fiction that propensity reasoning is absolutely forbidden. [9] Sometimes evidence is admitted for a propensity purpose while, at the same time, juries are instructed not to reason that the defendant may be guilty because they did this kind of thing before and are the kind of person who does this kind of thing.

What level of probative value was required? The simple answer, at one point, appeared to be that probative value must outweigh the risk of prejudice. [10] This basic cost-benefit assessment made good sense as a matter of principle. Of course, application could be an issue. Probative value has a reasonably clear meaning — it is defined in the UEL as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. [11] However, as I will discuss later, courts and commentators often have difficulty grasping this concept, conflating it with the related notion of proof. Further, even when probative value is properly understood, assessment can be anything but straightforward.

In some respects, figuring out the prejudicial risk appears even more difficult. The concept of prejudice may be more complex and less well understood than that of probative value. The dominant meaning risk of erroneous reasoning leading to factual error. Ultimately, the concern with prejudicial prosecution evidence is that it will cause an innocent defendant to be wrongfully conficted. Traditional jurisprudence has suggested that propensity evidence may lead the jury into error in two different respects. [12] First, the jury may apply propensity reasoning more strongly than is warranted. The jury may disregard the weaknesses with the propensity evidence and reason that since the defendant has committed this kind of offence previously, the defendant must be guilt. The second risk is that the propensity evidence may deflect the jury from carrying out their job properly. In particular, having learnt that the defendant has committed other misconduct, and is a bad person, the jury fails to give the defendant the benefit of a reasonable doubt. Whereas the first risk may be open for all propensity evidence, the second risk may depend upon the nature of the evidence, increasing where the other misconduct is particularly reprehensible — extreme physical and sexual violence.

The epistemic risk of erroneous reasoning appears to be viewed as the dominant form of prejudice. However, less commonly, policy-based non-epistemic objections to the use of propensity evidence have also been raised. It has been suggested that propensity reasoning — because the defendant has done this before, it is likely that the defendant committed the charged offence — is inconsistent with notions of rehabilitation [13] and individual autonomy. [14] Even if the evidence is probative and presents no risk of being misused, it should be prohibited on these policy grounds. [15]

Here, I will focus on the dominant form of prejudice — the epistemic risk that propensity reasoning poses, either through inflating the weight of the evidence, or discounting the criminal standard of proof. In both cases the probability of guilt flowing from the propensity evidence is wrongly treated as exceeding the criminal standard of proof. Further, it appears that expressions of concern about the risk of epistemic prejudice are premised on propensity evidence having limited probative value. If propensity evidence was viewed by the legal system as highly valuable, concerns about overvaluation would be less likely to arise, and the exclusionary rule may not have developed. In Pfennig McHugh J suggested that probative value and prejudicial risk are incommensurable. [16] In fact, in the case of epistemic prejudice, they are quite closely related. [17]

The risk of epistemic prejudice can be linked with the one of the ultimate concerns of the criminal trial — to avoid wrongful conviction. On this view, the concern is that the evidence will be misused resulting in conviction whereas, properly assessed, the evidence would leave a reasonable doubt. The scope for epistemic prejudice is related to the gap between the supposedly lowish probative value of the evidence and the probative value that may be required by the evidence for the prosecution to meet the elevated criminal standard of proof.

It is this relationship between probative value and prejudicial risk that led a majority of the HCA in Pfennig [18] to modify the admissibility test. The majority expressed concern with the flexible discretionary nature of the balancing test and sought to fix the level of the probative value required for admissibility. [19] Because they viewed propensity evidence as carrying a very high risk of prejudice they fixed the required level of probative value at a very high level. In fact, they drew the admissibility threshold from the criminal standard of proof — to gain admission, the evidence must be so strong that there is no reasonable view of it consistent with the innocence of the accused. [20] If evidence has this much probative value there is virtually no room left for prejudice to operate.

The Pfennig test is open to conceptual and practical criticisms. Conceptually, the Pfennig test conflates probative value and proof. It fashions an admissibility test for a single piece of evidence out of the criminal standard of proof which, [21] of course, ultimately has application to the entire prosecution case. [22] The conceptual conflation carries a related practical problem. It is difficult to make sense of the test. The most obvious interpretation — propensity evidence must be sufficiently strong by itself to prove the defendant’s guilt beyond reasonable doubt — appears so demanding as to be virtually impossible to satisfy. [23] As I’ll discuss in a moment, the HCA has provided a response to this concern, but this still fails to address the underlying concern — the conflation of probative value and proof.

UEL

I will return to the problems with Pfennig later, as they are symptomatic of some broader problems. But at this point I want to move on and introduce the admissibility tests in the UEL. The original UEL, the NSW and Cth Acts, became law in 1995, the same year as Pfennig. In some areas, the UEL deliberately and dramatically departed from the common law, particularly with regards to hearsay evidence. With regards to propensity evidence, my impression is that the common law was viewed as being in a state of flux and unclear, and the UEL just sought to bring greater clarity. [24]

Unfortunately, the admissibility tests in the UEL are scarcely less problematic than Pfennig. In some respects the UEL tests are more complex. Whereas Pfennig treats propensity evidence as a single category, the UEL unnecessarily and unhelpfully distinguishes tendency evidence and coincidence evidence in ss 97 and 98. These are very closely related variants of propensity evidence and the UEL applies the same admissibility test to both varieties, so it is difficult to see the point of the distinction. Also, whereas Pfennig requires propensity evidence to meet a single admissibility threshold, the UEL requires tendency and coincidence evidence to meet two different thresholds. It must meet the fixed threshold of ‘significant probative value’ (ss 97, 98), and further it must satisfy a variable threshold — probative value must substantially outweigh prejudicial risk (s 101). This is an asymmetrical balancing test which lacks the simple logic of the symmetrical balancing test. This test will require exclusion where the benefit of admission (probative value) exceeds the cost (prejudicial risk) but not by a substantial margin.

Despite identical wording being used for tendency and coincidence evidence, a line of authority applies a more demanding ‘significant probative value’ threshold to coincidence evidence. This differentiation is the result of some fairly weak statutory interpretation — the appearance of the word ‘similarities’ in the coincidence rule. As a matter of principle it is difficult to understand. Evidence that would invite tendency reasoning rather than coincidence reasoning is often more damning of the defendant on its face — eg, a prior conviction or uncontested evidence of another victim. The defendant did do this other misconduct and has demonstrated his bad tendency. Coincidence reasoning applies more naturally to a contested allegation or evidence merely linking the defendant to other harms. What is the chance that this evidence would mount against an innocent defendant? Coincidence evidence leaves open the possibility that the defendant has been falsely implicated. Tendency evidence then would appear to pose greater risks of prejudice. If anything, it should require a more stringent standard. Because tendency evidence now comes in more readily, prosecutors are increasingly fitting other misconduct evidence into the tendency category, even if it would support coincidence reasoning more naturally. This can only present problems the jury’s comprehension of the evidence and the arguments, and problems for the judge in trying to manage this.

The tests in operation

Common law — HCA

Probative value

 As discussed above, in Pfennig, a majority of the High Court sought to replace the flexible balancing admissibility test — probative value versus prejudicial risk — with a fixed admissibility threshold – the evidence must be so probative as to exclude innocence as a reasonable possibility. As I mentioned, this test, based upon the criminal standard of proof, conflates proof and probative value. The conceptual problem generates practical problems. On its face appears impossible for an individual item of evidence to satisfy a standard of proof that is demanding when applied to an entire body of prosecution evidence.

Various strategies were developed by state courts in an attempt to make the test workable. These varied in their details, but had a common theme. Essentially, because the admissibility threshold is a proof threshold, it should not be applied to the propensity evidence in isolation, but should be applied to the prosecution case as a whole. Dyson Heydon extrajudicially endorsed Hodgson JA’s proposal along these lines in NSWCCA in WRC and Joiner, [25] endorsement subsequently repeated by the High Court. [26] The QCA developed a similar strategy in O’Keefe [27] only to be criticised by the High Court in Phillips, an appeal from Queensland, for endorsing a test that is ‘expressed differently’ to, [28] ‘qualifying or ignoring a rule established by a decision of this court’, contrary to the rules of precedent. [29]

This criticism of the QCA by the HCA seems a little harsh in a couple of respects. First, it is not as though the HCA’s admissibility test has the fixed expression of legislation. In fact, in Phillips, the High Court provided more than half a dozen different formulations of

the need for similar fact evidence to possess some particular probative quality. The “admission of similar fact evidence … is exceptional and requires a strong degree of probative force”[18]. It must have “a really material bearing on the issues to be decided”[19]. It is only admissible where its probative force “clearly transcends its merely prejudicial effect”[20]. “[I]ts probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind.”[21] The criterion of admissibility for similar fact evidence is “the strength of its probative force”[22]. It is necessary to find “a sufficient nexus” between the primary evidence on a particular charge and the similar fact evidence[23]. The probative force must be “sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused”[24]. Admissible similar fact evidence must have “some specific connexion with or relation to the issues for decision in the subject case”[25]. [30]

Interestingly, the HCA itself, in Phillips de-emphasised the ‘no reasonable view’ version of the test from Pfennig. [31]

Second, the High Court developed its own contextual strategy along similar lines to that advanced in O’Keefe (and similar also to the one developed in NSW by Hodgson JA). ‘Pfennig v The Queen does not require the judge to conclude that the similar fact evidence, standing alone, would demonstrate the guilt of the accused of the offence or offences with which he or she is charged’; ‘due weight must be given to the necessity to view the similar fact evidence in the context of the prosecution case’. [32]

This contextual approach to testing probative value is understandable as a response to Pfennig’s conflation of probative value and proof. However, it is not a solution. If the assessment is fully contextual, then the demands placed on the propensity evidence will depend upon the strength of the prosecution’s other evidence. Weakly probative, highly prejudicial propensity evidence could gain admission on the back of other evidence. And vice versa; highly probative propensity evidence may be excluded because of other perceived failures in the prosecution case. This doesn’t seem to be a sensible approach to the risk of prejudice.

The contextual approach also appears at odds with other measures of probative value — ‘influence’, [33] and the ‘need principle’. [34] The stronger the other prosecution evidence the less the need for the propensity evidence, and the less the scope for propensity evidence to influence the result. These other perspectives can present something of a paradox for the contextual approach. As the probative value of the other evidence increases, the probative value of the propensity evidence assessed contextually increases. However, there comes a point where the other evidence proves guilt without the propensity evidence, at which point the propensity evidence becomes irrelevant. ‘ Just as the evidence is about to reach the probative value summit, it falls off a cliff.’ [35]

In Phillips itself, the High Court showed that, despite the potential for the contextual approach to temper the exclusionary rule, the Pfennig test can remain extremely stringent. The defendant was charged over a series of sexual offences against six young women. The trial judge had joined the charges with cross admissibility, noting the similarities between the allegations, including that each assault had taken place at a social gathering, the defendant had engineered an opportunity to be alone with her, he had first sought consent and failing that had used threats of violence. Further, the alleged offences all took place within the space of a couple of years. [36] There was no real suggestion of joint concoction. The trial judge considered the evidence highly probative — what would be the chance of such similar allegations being made if they weren’t true? The defendant’s appeal was dismissed by the QCA, but a further appeal to the High Court was upheld. The defendant, released on bail, promptly committed further similar offences.

There are actually two bases to the HCA’s decision, both deeply problematic. To the extent that commission or the defendant’s conduct was in issue, the HCA held that the allegations of other misconduct was insufficiently probative. The Court said ‘The similarities relied upon were not merely not “striking”, they were entirely unremarkable.’ [37] This highlights a key connection long drawn between the probative value of propensity evidence and the degree to which it shares similarities with the charged offence. This focus on similarities is heightened further by a second point that the HCA made about assessing probative value. The assessment assumes that the evidence will be accepted. [38] Doubts about a propensity witness’s credibility should not diminish probative value at the admissibility stage. The relationship between probative value and similarity is key and I’ll return to it later.

Relevance

The second basis of the HCA’s decision in Phillips is directed to offences where consent was in issue. Here, the HCA made an even stronger and more dubious finding. The other allegations were not only insufficiently probative. They were irrelevant! Evidence of other complainants’ lack of consent ‘proves only what mental state each of the other complainants had on a particular occasion affecting them, and that can say nothing about the mental state of the first complainant on a particular occasion affecting her’. [39] This argument is fundamentally flawed. Of course there is a connection between the different complainants having non-consensual sex with the defendant — the defendant’s conduct. He forced them. Why else would they do something that they didn’t consent to? The defendant’s conduct is the common thread. The fact that one woman (was forced to have) had non-consensual sex with the defendant lends support to another woman’s claim to have (been forced to have) had non-consensual sex with the defendant in similar circumstances.

Common law — QCA

Relevance

I think that Phillips, on the consent/relevance point, should not be considered to establish a precedent. As a matter of principle, evidence is relevant if it impacts on the probability of a fact in issue. Whether or not evidence is relevant in a particular case is very much tied to the facts of that case and is a question for the trial judge. [40]

Phillips could be avoided on the basis that consent is never an isolated issue. The defendant’s conduct — how it came about that the complainants had non-consensual sex with the defendant — will also be in issue. The QCA adopted this approach in Little. [41] The Court noted that ‘the only real issue about the elements of these offences’ was consent. [42] However, there was another factual issue which ‘was important for the resolution’ of the consent issue — ‘whether the appellant’s sexual acts occurred in the circumstances and in the manner described by the complainant in her evidence, which the appellant challenged by defence counsel’s cross-examination’. [43] The prosecution case was that the defendant used force — including threats with a knife — while the defence claimed sex was entirely consensual. The propensity evidence in that case ‘was relevant and admissible at the trial because of its probative force as support for the complainant’s evidence that the appellant disguised himself, forced entry into the complainant’s room, and assaulted, threatened, and bound the complainant to facilitate his sexual conduct’. [44] Phillips was distinguished on the basis that ‘[i]n that case, unlike in this case, the similar fact evidence was not tendered for the purpose of proving that the defendant engaged in any conduct. It appears that the similar fact evidence was tendered to prove only that the complainant did not consent. … [T]he similar fact evidence is not rendered inadmissible merely because it indirectly proves that the complainant did not consent to the sexual acts permitted by the appellant.’ Actually, in Phillips, the same kind of argument could, and should, have been adopted by the HCA, but wasn’t.

Strangely, Little [45] sought support from Collins, [46] a case in which Phillips was followed uncritically. In Collins the prosecution ‘accepted that joinder was impermissible to prove lack of consent’. [47] The QCA accepted ‘evidence of each complainant as to lack of consent is irrelevant as to whether any other complainant consented’. [48] The force and other strategies of the defendant alleged in Collins were less extreme than in Little, but they still served as a common connection between different complainants’ claims of non-consent.

Probative value

Putting consent to one side, there has also been variability in the extent to which the QCA has accepted the stringency of the admissibility test under Pfennig and Phillips. In Phillips the HCA criticised the QCA from straying from the HCA’s language. In subsequent decisions the QCA has been careful to adopt the HCA’s language but has applied the HCA test in some cases with less stringency than in other cases.

The claim that the Pfennig/Phillips test has been applied inconsistently is difficult to establish definitively. The test has been formulated in various different ways, and even with a single formulation, would not be mechanically applicable. Even with a fixed identifiable probative value threshold, there would be a great deal of judgment involved in determining whether the evidence meets that threshold. Each case is decided on its facts. But this is not entirely a case of comparing apples and oranges. While probative value assessments are based on a wide range of factors, they still end up on the same scale. And sometimes evidence that seems to lie lower on the scale has gained admission while evidence that seems to lie higher on the same scale has been excluded.

Gregory [49] provides a clear example of a more lenient application of the Pfennig/Phillips test. The defendant was charged with sexual offences against a 14-year-old boy relating to 2009 events. The prosecution adduced evidence of convictions for sexual offences against an 11-year-old boy from 16 years earlier. There was just one other victim with a considerable time gap. In addition, defence counsel, pointed out other differences between the offences, including that the complainant was a streetwise teenager who the defendant met on the street, whereas the defendant had a social connection with the other boy, through his parents. Also, the earlier victim was alone, whereas the offences against the complainant were committed with someone else present, Ms Smith (a slightly older friend of the complainant). [50] However, the court still found sufficient ‘striking similarities’, ‘pattern’ or ‘unusual features’. [51] In both cases the defendant struck up a friendship with a male child and engineered things so that the child very rapidly shared his bed in the evening. [52] Massage was used as a pretext, as part of the sexual grooming process. The court actually used one difference — the presence of Ms Smith — to explain another difference — the fact that coercion could not be used as directly with the complainant. [53]

Another example of relatively lenient application of Phillips is Little, [54] discussed above on the consent point. The defendant was charged with offences including a sexual assault. The complainant’s evidence was that he had forced his way in to her hotel room and raped her. The prosecution adduced evidence that the defendant had pleaded guilty to offences relating to three incidents 16, 17 and 21 years earlier similar to that related by the complainant. He had broken into women’s homes wearing a balaclava, threatened them with a knife, bound their hands and feet (except in one of the earlier incidents) and sexually assaulted them. [55] The defendant admitted to having had sex with the complainant but disputed the circumstances and said it was consensual. The two had ‘recently had many intimate encounters’. [56] While the shared features might be described as ‘striking’, there was the significant time gap following the other offences, and one major difference — in the earlier offences the defendant did not know the victims (and identity was in issue) whereas he knew the complainant well (and consent was in issue). The Court nevertheless upheld admissibility, commenting ‘[i]t is not ordinarily to be expected that a modus operandi will involve behaviour by an offender which is identical in every single respect upon each occasion of offending. Some changes are virtually inevitable as a result of differing circumstances’. [57]

Gregory and Little are cases where admissibility was upheld. However, given the nature of the evidence, had the admissibility test been applied as stringently as in Phillips, the Court might have been expected to go the other way. Recall that, in Phillips, there were half a dozen complainants with similar accounts of the defendants’ serial sexual assaults committed over a short period of time. In the QCA’s very recent decision in Davidson, [58] the evidence appears more probative than in Gregory and Little; there were nine alleged victims over a far more concentrated time-frame. Joinder and cross-admissibility was upheld but the court split.

Interestingly, McMurdo JA, delivering the leading judgment for the majority, quoted from Bauer, [59] a recent appeal HCA appeal regarding UEL admissibility from Victoria: ‘the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together’. [60] As I discuss below, Bauer may be viewed as adopting a stringent interpretation of the UEL test. However, McMurdo JA found the admissibility test satisfied. There were many common features across the numerous alleged offences. All women attended the defendant in his capacity as masseur. They were rendered vulnerable by this context — they were isolated and in a state of undress. The way in which the defendant offended was broadly similar in each case and his actions were accompanied by inappropriate or suggestive comments. In some cases he went quite a bit further than in other cases, but it was held ‘[a]ll were committed in relevantly identical circumstances’ and admissibility upheld.

Dissenting, Boddice J, like McMurdo JA, drew upon the HCA’s reaffirmed demand in Bauer for ‘sufficient nexus … common linkage … specific connection … [which] requires an assessment of the similarities in the evidence’. [61] However, unlike the majority, Boddice J placed weight on differences between the offences in terms of the parts of the body being touched, and the degree of sexual touching. He held that, by reference to these differences, some of the counts should be severed without cross-admissibility.

In other recent QCA cases the Court has been unanimous in applying the exclusionary rule with greater stringency. As in Phillips and like Boddice J in Davidson, the QCA has, in some cases, been unpersuaded by a catalogue of similarities among an entire series of alleged assaults, and has given weight to differences in detail. Collins is the case discussed earlier where the QCA uncritically applied the Phillips notion that propensity evidence is irrelevant to consent. In Collins the QCA also drew on the stringency of Phillips where commission was in issue. The defendant was charged with a series of sexual offences against seven young women while they were on his yacht. The prosecution relied upon the fact they’d all been lured there by him offering them employment. He then took advantage of their isolation and vulnerability. The Court, however, gave emphasis to a relatively fine distinction — while in all cases they had been offered a drink, only in some cases did the complainants testify that they felt stupefied by the drink, suggesting it was spiked. The QCA drew a distinction between the two classes of complainants on this basis. [62] Only those counts with the striking similarity of a stupefying drink could be joined. [63]

In Collins President McMurdo, giving the leading judgment, said she found Gregory unhelpful. These cases ‘necessarily turn on their own facts’. [64] Of course, assessing probative value does require a detailed consideration of the facts, and this makes it difficult to compare approaches between cases. Nevertheless, like Phillips, the approach in Collins is very much towards the stringent end of the spectrum.

A relatively strict approach was also taken in Nibigira [65] although, admittedly, the evidence in this case appears weaker than in Phillips and Collins. The defendant was convicted of CSOs against four complainants. The counts had been joined with cross-admissibility. On appeal Gotterson JA giving the leading judgment held the evidence was not cross-admissible and the charges should have been severed. The prosecution had relied on an ‘underlying pattern’. [66] In each case the defendant was alleged to have taken advantage of his position of trust and authority as a church leader; the offences occurred in connection with choir practice and other church related events; the victims were girls of similar age around 10, members of the choir; and the offences all occurred around the same time. However, the Court accepted the defence argument that there were differences in the seriousness of the acts, from indecent touching to penetration; locations, whether a car or at the defendant’s house; riskiness, in terms of the proximity of other people; some differences in the ages of the complainants; and wide variation in the extent to which the complainants were groomed. [67] The QCA quoted extensively from Phillips with emphasis on the stringency that the HCA gave the admissibility test in principle and in application. [68]

The QCA in Nibigira also relied upon MAP, [69] decided shortly after Phillips. That case involved two counts of digital rape of two 15-year-old females, known to him, in the same beachside holiday house a year apart, with others nearby (resulting in one conviction and one acquittal). The QCA in MAP held that, despite these similarities, there were also differences — whether the offences were accompanied by drinking and physical threats — and as a result there was no ‘underlying pattern’. [70] The QCA held that the same reasoning applied in Nibigira. Because of the differences there was no ‘underlying unity’ [71] or ‘pattern’. [72] The similarities were only at ‘a rather generalised level’. [73] The counts in Nibigira were ordered to be split. However, it held the counts involving complainants A and D could be joined with cross admissibility, as could the counts involving complainants B and C. In Davidson just a year later, the majority upheld admissibility and Gotterson JA said Nigibira is ‘clearly distinguishable’. Perhaps that is correct — there were more complainants in Nigibira with more distinctive similarities among their allegations. However, it is more difficult to distinguish Davidson from Gregory and Little. There are points of difference, of course, however on balance, the evidence in Gregory in particular appears no stronger.

Judicial directions

While considering the QCA decisions it is worth noting couple of further points. And this is with regard to the directions that trial judges give juries where propensity evidence is admitted. Trial judges continue to warn the jury against ‘pure propensity reasoning’. [74] The jury ‘must not reason that because the defendant committed those offences [on a prior occasion], he is therefore the kind of person who would or might commit the offences that have been charged’. [75] These directions were apparently not challenged by the prosecution — indeed, they are endorsed in the Benchbook. [76] However, they are problematic. They show signs of the lingering notion, mentioned earlier, that propensity reasoning is prohibited absolutely. Propensity reasoning is now recognised as acceptable, provided the evidence satisfies the admissibility tests. It is absurd to allow the evidence in for a propensity purpose and then warn the jury not to engage in propensity reasoning.

Standard Queensland jury directions are problematic in another respect. They embody the Pfennig admissibility test. Juries are being directed to only use propensity evidence if the evidence is so probative (or ‘strikingly similar’) that there is no reasonable explanation for it other than the defendant’s guilt. [77] Again, this direction was given in several of the cases discussed, apparently without objection, and it appears in the Benchbook. [78] This direction, like the Pfennig test conflates probative value and proof, applying the criminal standard to the propensity evidence in isolation. To suggest that the jury can only use the propensity evidence if it is sufficient to exclude innocence as a reasonable possibility is contrary to the cumulative operation of proof. As I’ll mention later, UEL jurisdictions have also experienced this conflation and slippage, long after having got rid of the Pfennig test. But there are recent signs that the problem is being remedied in the UEL jurisdictions.

UEL

Probative value

As with the common law tests, the UEL admissibility tests are inherently flexible. This is obviously the case with the asymmetric balancing test in s 101 — the required level of probative value varies depending upon the assessed prejudicial risk which is variable. Moreover, while some courts have accepted that the risk of prejudice can be addressed through judicial direction,[79] others have made the point that this simplistic assumption may, in effect, render s 101 inoperable.[80]

The ‘significant probative value’ test of ss 97 and 98 has received more attention than the s 101 test. While ‘significant probative value’ is fixed rather than variable, the expression is a little indeterminate. The High Court in Hughes recently sought to provide clarification. Gageler J observed that ‘significant probative value … is lower than … “substantial” probative value; but, to meet the threshold of significant probative value, evidence must still be “important” or “of consequence” to the assessment of the probability of the existence of a fact in issue.’[81] Gordon J and the majority added a further synonym: ‘the evidence must be influential in the context of fact-finding’.[82] Of course, much indeterminacy remains. And even if ‘significant probative value’ could be pinpointed on some kind of scale, its assessment would depend upon a range of factors and would be open to different approaches.

Within each UEL jurisdiction, as with the common law in Queensland, courts have interpreted the ‘significant probative value’ requirement with varying degrees of stringency. [83] As well as this intra-jurisdiction variation, a split recently emerged between Victorian courts, maintaining a fairly strict exclusion, and NSW courts, which liberalised admissibility. In Velkoski v The Queen [84] the Victorian Court of Appeal (VCA) suggested that ‘sufficient similarity or distinctiveness in the features of the proposed tendency evidence’ may require something ‘“remarkable”, “unusual”, “improbable” [or] “peculiar”’. [85] The Victorian Court criticised statements of the NSWCCA, that the other misconduct need not be ‘closely similar’ [86] with the charged offence, for lowering the admissibility threshold ‘too far’. [87]

Shortly after the VCA decision in Velkoski, the NSWCCA in Hughes v The Queen indicated it did ‘not accept that the language used by the VCA represents the law in New South Wales’. [88] Robert Hughes, the 1980s ‘Hey Dad..!’ TV star was convicted for a series of child sex offences against five complainants. The prosecution had relied heavily on tendency evidence. It argued that the complainants’ allegations were cross-admissible — that each charge derived support from evidence of similar misconduct provided by the other four complainants. Further tendency evidence of uncharged misconduct from six other witnesses was also admitted. [89] The NSWCCA upheld the admissibility and cross-admissibility of the allegations of complainants and other tendency witnesses, notwithstanding that the complainants’ ages ranged from six to 15 with another alleged victim in her early twenties, that they were in a variety of social and professional relationships with the defendant, and they gave evidence of various sexual touching and exposure behaviours, and in various contexts.

The defendant appealed to the High Court arguing that the Court should adopt the Victorian demand for specificity in Velkoski and recognise that the alleged behaviours were too ‘dissimilar’ [90] and the alleged tendency at too high a level of ‘generality’ [91] for the evidence to acquire significant probative value and gain admissibility. [92] For example, the defendant argued

there was a ‘world of difference’ between the evidence concerning EE (count 10), who was 15 years old and whom the appellant encouraged to commit indecent acts in a park and in a driveway, and the evidence concerning SH (counts 3 to 6), which involved intrusive acts ‘in a darkened bedroom, in her bed, when she was only six, seven or eight’. [93]

The appeal was dismissed by a narrow 4:3 margin. The majority judgment of Kiefel CJ, Bell, Keane and Edelman JJ upheld the admissibility determinations of the trial judge and NSWCCA, expressly disapproving Velkoski as ‘unduly restrictive’ [94] and inconsistent with the legislative scheme. [95] There were three dissenting judgments. Gageler J was not that far from the majority in approach; he interpreted the facts differently with regard to one count. Nettle J, in the longest judgment, appeared to diverge far more sharply. He defended the VCA’s approach as orthodox [96] and criticised the NSW ‘for so lowering the bar’ without ‘justification in principle or as a matter of statutory interpretation’. [97] Gordon J agreed with Nettle J.

It should be noted that, to the extent the majority did endorse of a more liberal approach to admissibility, this was limited to commission cases. The majority suggested that more would be required of tendency evidence ‘to prove the identity of the offender for a known offence [than] where the fact in issue is the occurrence of the offence’. [98] In relation to identity, ‘the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence’. [99] Similar suggestions can be found in Gageler J’s judgment [100] and elsewhere, [101] including the Royal Commission’s work. [102] But, despite this widespread support, the distinction has not been properly substantiated. As I’ve argued elsewhere, [103] this distinction appears to reflect the heavily contextualised approach to probative value. In commission cases the propensity evidence operates in conjunction with the complainant’s evidence, whereas in identity cases it may have to do all the work itself. However, as I’ve mentioned this heavily contextualised approach seems to conflate probative value and proof. The better view is that ‘there is no special rule for identification cases’. [104]

In Hughes, a commission case, the majority upheld admissibility despite several dimensions of variability among the charged and uncharged sexual misconduct. It held significant probative value does not require ‘operative features of similarity with the conduct in issue’. [105] Having said that, it is unclear how liberal the majority decision is. The majority accepted that the probative value of a tendency is in proportion with the ‘particularity’ [106] or ‘specificity’ [107] with which it can be expressed. The majority doubted whether it would be sufficient if ‘the evidence does no more than prove a disposition to commit crimes of the kind in question’. [108] And, in Hughes, in finding significant probative value the majority emphasised two additional factors which it saw as common to all the offences. As well as displaying the defendant’s ‘sexual interest in … underage girls’, the evidence revealed that the defendant had ‘a tendency to act on that interest by engaging in sexual activity with underage girls opportunistically, notwithstanding the risk of detection’. [109]

Nettle J used stronger language in identifying the requirement for admissibility. He indicated that there must be ‘ some logically significant underlying unity or commonality’. [110] This ‘logically significant connection’ [111] may be found in ‘similarity in the relationship of the accused to each complainant; … between the details of each offence or the circumstances in which each offence was committed; [or in the] modus operandi or system of offending’. [112] And his application of this requirement was quite stringent. He expressly held that the shared features of opportunism and riskiness did not amount to a sufficient connection between the offences. [113]

Hughes was decided only two years ago. But since then the High Court has handed down two further decisions regarding the admissibility of tendency evidence under the UEL, Bauer [114] and McPhillamy. [115] These are all but unanimous decisions (in McPhillamy Edelman J agreed with the majority in a short separate judgment) and while the composition of the HCA has not changed, these decisions seem more aligned with Nettle J’s dissenting decision in Hughes and the more restrictive Victorian approach than with the more liberal approach of the NSWCCA which the Hughes majority appeared to approve. Admittedly, the difference in language between the majority and Nettle J in Hughes is relatively subtle, and the difference in decision turned upon the significance to be attached to a couple of specific features of offending — opportunism and riskiness. Nevetheless, the language used in Bauer and McPhillamy is more in line with that of Nettle J in Hughes and these more recent cases may mark a more demanding approach to tendency evidence.

In Bauer, a prosecution appeal from the VCA, the High Court spoke of the need for a ‘special, particular or unusual feature’, [116] ‘some feature of or about the offending which links the two together’. [117] Without this, ‘evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant’. [118] In Bauer, the tendency evidence was held to be cross-admissible, and the counts correctly joined, but the Court placed emphasis on a special feature. All the offences were against the same complainant. This provided the necessary link. [119]

In McPhillamy, on appeal from the NSWCCA, the tendency evidence was ultimately held to be inadmissible. The defendant was charged with sexual offences against an 11-year-old altar boy in 1995-6 when the defendant was an acolyte. The tendency evidence related to admitted prior sexual misconduct against two 13 year old boys at a boarding school, ten years earlier when the defendant was a housemaster. A majority of the CCA had upheld admissibility on the basis that there was an ‘overriding similarity’ from which differences between the cases ‘did not detract’. [120] It was open to the jury to reason that the defendant’s sexual interest in boys had not attenuated over the 10 year time difference.

But the High Court preferred Meagher JA’s dissenting judgment in the CCA in which he referred to the ‘generality of the tendency’ [121] and the ‘absence of sufficient similarity’. [122] They emphasised that there was ‘no evidence that the asserted tendency had manifested itself in the [intervening] decade’. [123] There was a need for ‘some feature of the other sexual misconduct and the alleged offending which serves to link the two together’. [124] The defendant’s supervisory position over the three boys was insufficient as were the similar ages of the boys and the similar sexual misconduct. The Court noted differences [125] — the boarders were homesick and vulnerable and the offending took place in the privacy of the defendant’s bedroom; the altar boy did not have that vulnerability and the offence allegedly took place in a public toilet. The evidence ‘rose no higher in effect than to insinuate that, because the appellant had sexually offended against B and C 10 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.’ [126] It is difficult to compare between cases. However, while there were far fewer victims in McPhillamy than in Hughes and a time gap, the similarities appear greater and the differences slighter than in Hughes.

Judicial direction

A further aspect of Bauer should be noted. While Bauer was a Victorian appeal concerned with the admissibility of tendency evidence, the HCA took the opportunity to disapprove of a common NSW judicial direction.

Contrary to the practice which has operated for some time in New South Wales, trial judges in that State should not ordinarily direct a jury that, before they may act on evidence of uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt. [127]

This direction had already been prohibited in Victoria by ss 61, 62 of Jury Directions Act 2015. These provisions emphasise that the standard of proof is generally only applicable to the elements of the offence, a point made by the HCA many years earlier in Shepherd. [128] However, it appears to be an easy trap to fall into, and support for the direction was re-emerging, including in HCA decisions. [129]

The direction disapproved in Bauer resembles one of the problematic Queensland directions noted above — that a jury can only use propensity evidence if it finds there is no reasonable explanation for the evidence other than innocence. Like the direction disapproved in Bauer, the Queensland direction applies the criminal standard of proof to propensity evidence in isolation, conflating probative value and proof. A difference between the two is that the direction rejected in Bauer applies the criminal standard of proof to the circumstantial fact of the defendant’s other misconduct, while the Queensland direction focuses on the extent to which the propensity evidence proves the defendant’s guilt. Both are inappropriate. Propensity evidence can lend support to the prosecution case even though there is some doubt about whether the other misconduct occurred, and even though there may be a reasonable explanation for that evidence consistent with innocence. Proof operates cumulatively. The propensity evidence doesn’t have to do the whole job itself. It is a brick, not a wall. [130]

Child sex offence reform

The Royal Commission into Institutional Responses into Child Sexual Abuse identified the exclusion of propensity evidence as ‘one of the most significant issues affecting criminal justice in child sexual abuse cases’ and recommended admissibility be broadened. [131] The Royal Commission’s concerns related to both the common law [132] and the UEL, even in its most liberal manifestations. Reporting after the High Court decision in Hughes, the Royal Commission noted with approval that it supported the more liberal NSW approach to admissibility in the UEL, but suggested the decision did not go far enough, and also failed to provide courts with sufficient guidance. [133] (As just discussed, since Hughes, in Bauer and McPhillamy the High Court appears to have retreated from this relatively liberal approach.) The Royal Commission put forward draft legislation to further broaden admissibility in child sex proceedings. [134] The New South Wales government rejected the Royal Commission’s draft legislation, [135] but found force in the arguments for broadening admissibility and referred the matter to the Council of Attorneys-General (CAG). The CAG set up a working group to consider reforms extending beyond CSO cases to propensity evidence in criminal matters generally. [136]

In June the NSW Attorney General, Mark Speakman, issued a press release indicating the direction of reform flowing from the CAG process. [137] The press release refers to ‘proposed reforms to the Uniform Evidence Law’, however, given that the Royal Commission and the CAG are both bodies operating across Australia, the reforms may also be considered by non-UEL jurisdictions such as Queensland. The press release noted the following features.

“A new rebuttable presumption would ensure evidence that a defendant has, or has acted on, a tendency to have a sexual interest in children is presumed to have ‘significant probative value’.”

“Judges would be required to exclude tendency or coincidence evidence about a defendant if its probative value does not outweigh the danger of unfair prejudice to the defendant.”

“Targeted legislative guidance, based on the findings of the Royal Commission, would help dispel misconceptions that have minimised the perceived value of this evidence in the past.”

From this press release it appears that, unfortunately, the CAG did not take the opportunity to simplify propensity law. The UEL’s unnecessary and counterproductive coincidence/tendency distinction will be retained, [138] as will its double admissibility test incorporating both a fixed threshold and a balancing test. In effect, the law contains four tests instead of one.

Instead the focus is on opening up admissibility, particularly in CSO cases. To achieve this, the double admissibility test will be modified in its application in two respects. While the first test remains a requirement of significant probative value, for CSO cases this will be presumed. It would then be up to the defendant to demonstrate the evidence lacks significant probative value. The planned change to the second test appears to extend beyond CSO cases to tendency and coincidence evidence in general. The test remains a balancing test, but it will become symmetrical. The prosecution will only need to prove that probative value outweighs prejudicial risk — under the existing s 101, probative value needs to substantively outweigh prejudicial risk. The reform removes the illogic of excluding evidence where its benefits may outweigh its costs. These changes to the two admissibility tests are accompanied by a third feature of the reforms — legislative guidelines to assist the courts in assessing probative value. These guidelines will reflect the Royal Commission’s view that courts have traditionally undervalued propensity evidence.

The modification to the first admissibility test would presume that propensity evidence has significant probative value, but only in CSO cases. Should CSO cases receive this special treatment? As the Royal Commission recognised, propensity evidence can be particularly valuable in child sex offence cases. Given the nature of child sex offending, evidence can be hard to come by. The offences are conducted in private, the victim may delay reporting the offence for months, years or even decades, resulting in the loss of forensic science or medical evidence of the offence. The trial may turn in to a battle of credibility — the complainant’s allegation versus the defendant’s denial. The law now has some appreciation the many reasons why the victims of child sexual abuse do delay reporting; [139] generally these are variations on the power imbalance between adult offender and vulnerable child victim — the offender’s grooming, normalisation and threats; the victim’s embarrassment, confusion and fear. Nevertheless, the delay may still damage the complainant’s credibility, [140] and bring greater scrutiny to the complainant’s allegation. [141] And so the battle of credibility may be a difficult one for the prosecution to win, bearing in mind that it is not sufficient that the complainant be found more credible than the defendant. The criminal standard of proof requires that the complainant must be found so credible that there is no reasonable possibility that the defendant’s claim of innocence is true.

As is well known, the nature of CSO cases is such that, compared to other crimes of comparable seriousness, reporting rates are lower, prosecution rates are lower, rates of guilty pleas are lower, and, where they do go to trial, conviction rates are lower. [142] In CSO cases there is often a particular need for additional prosecution evidence. This consideration certainly influenced the Royal Commission’s thinking in making its recommendations. [143]

And, it seems, it is not uncommon for propensity evidence to be available to fulfil this need. [144] In a significant proportion of CSO cases, the prosecution has evidence of other alleged victims or a defendant’s prior convictions for similar offences. It is an interesting and important question whether evidence is more generally available for child sex offences than for other offences — whether CSO defendants are more likely to have a criminal history than other defendants. If so, this may suggest that, not only is there a greater need for propensity evidence, and not only is it readily available, but propensity evidence is also more probative in CSO cases. Child sex offenders are more likely to reoffend; they have stronger propensities. Many of the cases examined by the Royal Commission did involve offending against numerous victims, [145] and this may have influenced the Royal Commission’s view that the evidence carries significant probative value.

However, while the Royal Commission’s work did highlight the need, availability and probative value of propensity evidence in CSO cases, it was wary of making comparative assessments for the simple reason that non-CSO cases were beyond its remit. Indeed, its focus was on institutional child sexual abuse. It appears that there may be stronger policy reasons for freeing up admissibility of propensity evidence in CSO cases than in other types of cases, but the Royal Commission did not do this work. The Royal Commission recommended changes only for CSO cases simply because they were its focus. And, it seems, this narrow focus has restricted the subsequent law reform process.

Even if there were policy arguments that may justify giving CSO special treatment with regards to propensity evidence, this proposal may raise practical objections. The line between CSO and non-CSO cases is a further bifurcation: tendency/coincidence, fixed threshold/variable threshold, and now CSO/non-CSO. It introduces yet another complexity into the law. And this latest line may be difficult to draw. CSO cases may have significant non-CSO aspects — physical violence, physical and sexual violence against adults. It is unfortunate that the Royal Commission and the CAG Working Group did not give greater weight to the practical benefits of simplicity.

Of course, in terms of the scope of the reforms, the hands of the Royal Commission and the CAG were tied, to a degree, by the original limited terms of reference. There may be something to be said for postponing propensity evidence reform pending a broader enquiry. However, against this, the Royal Commission has highlighted urgent need for reform, and generated momentum for it. Now may be the moment. In view of this, it is to be hoped that at some point before the legislation is passed, someone will make a bold intervention to generate simpler, more workable legislation that draws more general lessons from the Royal Commission’s findings.

I have advocated — so far unsuccessfully — for a return to the symmetrical balancing test as a basis for admissibility. [146] Get rid of the fixed threshold requirement of ‘significant probative value’, but retain the balancing test in its symmetrical form. The requirement should be simply that probative value outweigh prejudicial risk. This should apply to CSO and other cases, and there should be no distinction between coincidence and tendency evidence. As compared with the current double admissibility test, this will liberalise admission, responding to the Royal Commission’s recognition of the traditional undervaluation of propensity evidence. At the same time, evidence will be excluded if its costs may outweigh its benefits. The test clearly operates at a high level of generality, and would leave much to individual judgement. However, this can be handled by legislative guidance. The Royal Commission’s work and the research it draws upon provides the foundation for the drafting of appropriate guidance. To maximise the value of the reforms, the aim should be to formulate guidance that will be useful broadly, not just in CSO cases.

Guidance on assessing probative value

The earlier discussion of the application of existing common law and UEL admissibility tests suggests that the precise details of the test don’t matter. The variation in QCA decisions shows that even with the apparently stringent Pfennig/Phillips test there is scope for a liberal approach to admissibility. And the divergence between Victoria and NSW together with the meanderings of the HCA indicate that the UEL tests may support approaches of varying degrees of stringency. This should not be surprising. The admissibility tests are open to interpretation. And judgment is also required in applying the tests — the determination of probative value and prejudicial risk. This observation adds to the desirability of having a simple admissibility test — the complicated details, even if they have a sound rationale, may achieve their purpose.

Signalling more liberal admissibility

This is not to say that trial judges, in determining admissibility, are wholly unconstrained by the terms of the admissibility test (whether common law or legislative). Some aspects of the test may be mechanically applicable — for example, that the trial judge at the admissibility stage take propensity evidence at its highest; which would include the assumption that other alleged victims are telling the truth. A further aspect of Bauer was to confirm that this position under the UEL extends to the risk of concoction — ‘unless the risk of … concoction … is so great that it would not be open to the jury to rationally accept the evidence … the risk … goes only to the credibility and reliability of the evidence, and … must be left to the jury’. [147] (Legislation adopting this approach, overriding the HCA authority Hoch, [148] has already been taken in many jurisdictions. [149] ) This principle is mechanically applicable precisely because it is absolute. The evidence, in this respect, is taken at its highest. Other aspects of the admissibility test require judgment and are inherently flexible. The way the test is expressed does exert some influence — it is not like pushing on a string — but it is like pulling on an elastic band.

Nevertheless, if the proposed legislation were introduced, it may exert greater influence because of the contrast with the existing laws. The proposed CAG reforms — presuming significant probative value for CSO cases and the more liberal symmetrical balancing test — would be clear signals to trial and appeal judges that this evidence should be admitted far more readily. Likewise my preference for the symmetrical balancing test by itself. And the judiciary would be receptive to these signals. [150]

These signals can be strengthened by the CAG-proposed legislative guidance on the application of the tests. The CAG press release may be construed as referring only to probative value — it suggests the guidelines will address ‘misconceptions that have minimised the perceived value of this evidence’. However, the guidelines could also address the assessment of prejudicial risk. As mentioned above, the considerations of probative value and prejudicial risk are linked — the more probative the evidence, the less room there is for prejudice to operate. Indeed, some of the traditional concern about jury overvaluation of propensity evidence may be the direct consequence of the law’s traditional undervaluation of propensity evidence. It should also be noted, the guidelines may also be of assistance to the trial judge, not only at admissibility, but in crafting jury directions. Here I will focus on the legislative guidance on assessing probative value — not prejudicial risk — and without reference to any complications that may arise in crafting jury directions.

Checklist of considerations

The question arises where this guidance might be derived from. One obvious source is past decisions. Notwithstanding differing levels of judicial stringency and the law’s traditional undervaluation of probative value, common factors do emerge and these may be worth considering. The Supreme Court of Canada in Handy suggested that courts have regard to: [151]

1. the proximity in time and place of the similar acts
2. the extent to which the other acts are similar in detail to the charged conduct
3. the number of occurrences
4. the circumstances surrounding or relating to the similar acts
5. any distinctive features unifying the incidents
6. any intervening events
7. any additional factors tending to support or rebut the underlying unity of similar acts.

This kind of checklist may be useful in that, in some cases, key features may be missed. In Phillips, for example, the High Court seemed not to have appreciated the significance of the number of young women that had come forward with similar accounts of the defendant’s sexual misconduct.

However, this kind of list by itself would not be enough. While it certainly offers greater specificity than vague references to ‘underlying patterns’ and ‘logical connections’, it does not provide a proper standard as to how demanding courts should be in weighing up the various factors. In many cases the defence would be able to draw on the list to highlight respects in which the propensity evidence lacked probative value — low frequency, a lack of shared distinctive features, a time lag with intervening events, etc. This would work against the Royal Commission and CAG’s intention. The purpose of the guidelines is to address the traditional undervaluation of propensity evidence.

Similarity standards and criminal behaviour

In Hughes, the majority found the other misconduct evidence significantly probative on the basis of the shared features of riskiness and opportunism, while Nettle J viewed these features as unremarkable. Which approach is appropriate? In these cases the court is engaged in an enterprise of resolving uncertainty about criminal behaviour. As Gageler J recognized in Hughes, this is something that should ‘ be informed by social science data [and] scholarly work bearing on actual probabilities’. [152] He regretted that the parties had not made such material available in that case. [153] The Royal Commission, in its work drew upon a great deal of empirical data, and in determining how to use that data, it had reference to work on the logic of proof. It viewed the majority approach in Hughes as too strict. In CSO cases it is unnecessary to descend into detail. ‘T he two most important similarities are already present — sexual offending against a child’. [154]

To demand ‘striking similarities’, or something ‘remarkable’ or ‘peculiar’ seems to assume that CS offenders are highly specialized in their offending. In some cases it seems that courts demand that each offence carries the same distinctive hallmark. This assumption is not backed up by empirical data. The Royal Commission’s work revealed that while offenders may show particular preferences, they offend against ‘both girls and boys and children of quite different ages, … in a variety of ways [and] in different contexts — institutional, familial and others’. [155] Moving beyond the Royal Commission’s focus on child sex offenders, the same point can be made of other offenders. Recidivism analyses shows that criminals are often ‘“specialised generalists”, tending to commit a range of offences but … more likely to commit their specialization offence than any other particular offence’. [156] This data suggests that other misconduct may have probative value even without shared distinctive features.

Comparative propensity

Questions remain as to how recidivism data translates into probative value assessments. Quite a few commentators have pointed out that recidivism figures are often quite low. Annie Cossins (who favours more liberal admissibility) recently conducted a review of recidivism rates for extrafamilial child sex offenders. With follow-up periods ranging from four to 10 years and a variety of measures of recidivism, rates varied from 1.5 per cent to 26 per cent with about half the studies reporting figures of around 15 per cent. [157] These kinds of figures lead to suggestions that because an offender is unlikely to reoffend, prior offending is more consistent with innocence than with guilt. [158] But such views suffer the familiar problem of conflating proof and probative value. An item of evidence can be valuable even though, by itself, it does not prove guilt to any particular level. Consider motive evidence. This may form an important part of the prosecution case (where identity or intention is in issue). However, its value does not hinge upon the claim that a person with that motive would be likely to commit the offence. Many people have may have a motive to commit an offence without committing the offence. Motive evidence gets its value from the fact that someone with a motive is far more likely to commit the offence than someone without motive.

Probative value is a comparative assessment. Evidence will be probative of guilt if it is more consistent with guilt than to innocence. The Royal Commission quoted from British evidence theorist, Mike Redmayne.

[W]hat really matters is … a comparative judgment: whether the person with the murder conviction is more likely than other people to commit murder. … the question is whether the person has a comparative propensity to commit crime. [159]

The Royal Commission also drew upon my submission:

Prior conviction evidence is probative, not because it is highly probable that someone with a prior conviction is likely to reoffend, but because such a person is far more likely to commit an offence than someone without a prior conviction. Recidivism rates, while not incredibly high, are far higher than crime rates. Probative value is a ‘comparative judgment’, and its comparative nature suggests that tendency and coincidence evidence can have considerable probative value. [160]

There are methodological difficulties in settling upon precise figures for the relative likelihood of offending among prior offenders and the general public, but a rough indication can be provided by considering data gathered by Smallbone and Wortley of child sex offenders in custody. They identified 540 child sex offenders who were in custody or serving community correction orders in June 2000 in Queensland. [161] This is between one and two hundredths of one per cent of the population. [162] The researchers then obtained detailed information regarding the histories of 323 of these offenders. [163] They found that 21.3 per cent had prior convictions for sex offences (and 61.6 per cent had prior convictions of some kind, illustrating generalised patterns of offending). [164] Among the general population it is extremely unusual be in custody for a CSO. However, among those in custody for a CSO it is not at all uncommon to have prior convictions for sex offences (or other offences). Most people are very unlikely to commit a CSO. The likelihood of committing a CSO increases considerably for a person who is shown to have committed a CSO on another occasion. Evidence of other child sex offences is far more consistent with the defendant’s guilt on the current charges than with the defendant’s innocence. Evidence of other (more or less similar) offending is highly probative.

This analysis highlights a difficulty with Nettle J’s approach to probative value in Hughes, a difficulty suffered by other advocates of a stringent approach to admissibility. Nettle J suggested ‘[t]he commission of sexual offences by adults against children of either sex is depraved and deplorable, but, regrettably, it is anything but unusual’. [165] ‘[T]he bulk of the work of criminal courts in this country is devoted to dealing with sexual offences and the bulk of those offences are sexual offences against children’. [166] However, in assessing unusualness by reference to criminal defendants generally Nettle J is using an inappropriate conception of ‘unusualness’. At another point Nettle J conceded that child sex offending ‘ is unusual by the standards of ordinary decent people’. [167] This is a more appropriate conception of unusualness. The question is the consistency of other misconduct with guilt relative to its consistency with innocence. In determining this it is useful knowing how uncommon child sex offenders are among the general population, most of whom, by and large, are law-abiding. It is not surprising that the criminal courts will encounter a lot child sex offenders. But the frequency of child sex offenders among the criminal defendant population is not the question. [168]

Flowing from this analysis, guidelines for the assessment of the probative value should address the following related points. First, the guidelines should ward against the common problem of probative value being conflated with proof. Propensity evidence may be highly probative even though, by itself, it does not prove guilt to any particular standard. Second, the guidelines should emphasise the comparative nature of the probative value assessment. The question is not only how consistent the evidence is with guilt. The question is how more consistent the evidence is with guilt than it is with innocence. Some guidance on this point may be provided by considering the likelihood of that kind of offender reoffending, as compared with a member of the general population committing the offence.

Flowing from these guidelines, probative value assessments should not make strong demands in terms of striking similarities, logical connections or underlying patterns. It will be worth considering whether these features are present, and in this connection a checklist drawing on case law may be valuable. If present, these features may contribute to very high probative value — if the offence does display the same hallmark as a defendant’s prior offending, then it is very unlikely that this has appeared coincidentally. However, evidence of prior offending may acquire considerable probative value without a hallmark. Offenders generally do not specialise to that degree. The checklist should not obscure the important point that probative value turns on comparative propensity. Generally, it is far more likely that a person with a history of offending will commit an offence than someone without that history.

Conclusion

The regulation of propensity evidence has a long troubled history in Australia and other jurisdictions. The Royal Commission has given fresh impetus to the debate around propensity evidence, highlighting the exclusionary rule as one of the major obstacles to the enforcement of the prohibition on child sexual assault. The Royal Commission recommendations are in the process of being turned into legislative reform by the CAG. Unfortunately, so far it appears that the reforms will not take the opportunity to provide much needed simplification. The UEL currently contains two admissibility tests where one would suffice, and the UEL also unnecessarily distinguishes between two closely related varieties of propensity evidence — tendency evidence and coincidence evidence. It appears that the reforms will retain the two tests and the two types of propensity evidence and then further increase the complexity of the law by drawing a further distinction — between CSO and non-CSO cases. It will be regrettable if the opportunity to simplify the law is missed. There should be a single symmetrical balancing test for propensity evidence — the evidence should be excluded unless its probative value outweighs its prejudicial risk.

While it seems that the opportunity to simplify the law will be missed, the reforms do promise to relax admissibility. CSO evidence will be presumed to have significant probative, satisfying the first admissibility test. And the second admissibility test will be relaxed to a symmetrical balancing test, instead of requiring probative value to substantially outweigh prejudicial risk. Guidelines are also proposed to address the traditional undervaluation of propensity evidence. This direction of reform appears appropriate, not only for CSO cases, but across the board. The scepticism that the law has traditionally directed towards propensity evidence in large part is based on empirical misconceptions and logical errors. Evidence of other misconduct may acquire significant probative value even though the other misconduct does not share distinctive features with the charged offence. Criminals may reoffend without great specialisation or the adoption of a hallmark. Propensity evidence has been viewed as lacking probative value on the basis that it does not, by itself, prove guilt. However, this conflates probative value with proof. Probative value is a relative assessment. Most people don’t commit criminal misconduct, but having committed one offence, a person is far more likely to commit another. Propensity evidence — evidence of other misconduct — may not display a hallmark and may not prove guilt to any particular level of probability by itself, but is still often highly probative.

David Hamer * , University of Sydney Law School

[1] (2006) 225 CLR 303; David Hamer, ‘Similar Fact Reasoning in Phillips: Artificial, Disjointed and Pernicious (2007) 30 UNSW Law Journal 609-638.

[2] (2008) 235 CLR 334; David Hamer, ‘Admissibility and Use of Relationship Evidence in HML v The Queen: One Step Forward, Two Steps Back’ (2008) 32 Criminal Law Journal 351-368.

[3] See also David Hamer, ‘Propensity Evidence Reform after the Royal Commission into Child Sexual Abuse’ (2018) 42 Criminal Law Journal 234.

[4] Evidence Act 1929 (SA) s 34P; Evidence Act 1906 (WA) s 31A.

[5] Evidence Act 1977 (Qld) ss 132A, 132B.

[6] Royal Commission on Criminal Justice, Report, Cm 2263 (1993) i.

[7] Eg, ‘If the inadmissible chain of reasoning is the only purpose for which the evidence is adduced as a matter of law, the evidence itself is not admissible. If there is some other relevant, probative purpose than for the forbidden type of reasoning, the evidence is admitted, but should be made subject to a warning from the judge that the jury must eschew the forbidden reasoning.’ Boardman v DPP [1975] AC 421, 453 (Lord Hailsham)

[8] Eg, Federal Rule of Evidence 404(b).

[9] See also David Hamer, ‘The structure and strength of the propensity inference: Singularity, linkage and the other evidence’ (2003) 29 Monash University Law Review 139, 145-6.

[10] DPP v P [1991] 2 AC 447, 460. Australian authority includes Sutton (1984) 152 CLR 528, 534 (Gibbs CJ); Harriman (1989) 167 CLR 590, 593-4 (Brennan J), 597-99 (Dawson J), 610 (Toohey J); B (1992) 175 CLR 599, 618-9 (Dawson and Gaudron JJ); Pfennig (1995) 182 CLR 461, 478 (Mason CJ, Deane and Dawson JJ); 515, 528 (McHugh J); BRS (1997) 191 CLR 275, 305 (McHugh J); Gipp (1998) 194 CLR 107 [142] 157 (Kirby J). See also Handy [2002] 2 SCR 908 [55]; Evidence Act 2006 (NZ) s 43(1).

[11] UEL Dictionary.

[12] Andrew Palmer, ‘The Scope of the Similar Fact Rule’ (1994) 16 Adel LR 161, 169 ; DP Leonard, ‘In defense of the character evidence prohibition: Foundations of the rule against trial by character’ (1998) 73 Indiana Law Journal 1161, 1184; Hughes (2017) 344 ALR 187 [73] (Gageler J).

[13] People v Zackowitz 172 NE 466, 468 (NY 1930); Colin Tapper, Cross and Tapper on Evidence (London: Butterworths, 9th ed, 1999), 357; Adrian Zuckerman, Principles of Criminal Evidence (Oxford: Clarendon Press, 1989), 232

[14] Hock Lai Ho, A Philosophy of Evidence Law—Justice in the Search for Truth (2008) 337.

[15] DP Leonard, ‘In defense of the character evidence prohibition: Foundations of the rule against trial by character’ (1998) 73 Indiana Law Journal 1161, 1192.

[16] Pfennig (1995) 182 CLR 461, 528.

[17] See David Hamer, ‘Legal Structure of Propensity Reasoning’ (2016) 20 The International Journal of Evidence & Proof 131, 154-155.

[18] The test also appeared in earlier High Court decisions: Sutton v The Queen (1984) 152 CLR 528, 563—564 (Dawson J); Hoch v The Queen (1988) 165 CLR 292, 296; David Hamer, ‘Similar Fact Reasoning in Phillips: Artificial, Disjointed and Pernicious’ (2007) 30 University of New South Wales Law Journal 609, 612—613.

[19] (1995) 182 CLR 461, 483 (Mason CJ, Deane and Dawson JJ), 506 (Toohey J).

[20] (1995) 182 CLR 461, 482 (Mason CJ, Deane and Dawson JJ).

[21] Grant v The Queen (1975) 11 ALR 503, 505; Hodges Case (1838) 2 Lewin 228; 168 ER 1136.

[22] David Hamer, ‘Legal Structure of Propensity Reasoning’ (2016) 20 The International Journal of Evidence & Proof 131, 156.

[23] R v W [1998] 2 Qd R 531, 537, 533—4; R v Vinh Le [2000] NSWCCA 49 [116]; see also Velkoski [2014] VSCA 121 [58].

[24] The ALRC’s research confirmed the need for a relatively strong exclusionary rule: Australian Law Reform Commission, Evidence, Report No 26 (Interim), (1985), vol 1 at 456 [800]. But the ALRC’s draft legislation was not adopted, so it is difficult to say how much this influenced Parliament: Ellis (2003) 58 NSWLR 700 at 714-715 [65] (Spigelman CJ); Hughes (2017) 344 ALR 187 [23] (Kiefel CJ, Bell, Keane and Edelman JJ).

[25] WRC (2002) 130 A Crim R 89; Joiner (2002) 133 A Crim R 90; Dyson Heydon ‘Similar Fact Evidence: The Provenance of and Justification for Modern Admissibility Tests’ in Aladin Rahemtula (ed), Justice According to Law: A Festschrift for the Honourable Mr Justice BH McPherson CBE (2006) 241, 251.

[26] BBH v The Queen (2012) 245 CLR 499 [155]—[159] (Crennan and Kiefel JJ); HML (2008) 235 CLR 334 [27] (Gleeson CJ), [285] (Heydon J).

[27] [2000] 1 Qd R 564, 573-574.

[28] (2006) 225 CLR 303 [64].

[29] Ibid [60].

[30] Ibid [54], with references in fnn:

[19] R v Boardman [1975] AC 421 at 439 per Lord Morris of Borth-y-Gest, approved in Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108 at 117 per Gibbs ACJ, Stephen, Jacobs and Aickin JJ concurring.

[20] Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580 at 609 per Brennan J; Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528 at 548-549 per Brennan J, 560 per Deane J, 565 per Dawson J; Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590 at 633 per McHugh J; Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 at 481 per Mason CJ, Deane and Dawson JJ.

[21] Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528 at 534 per Gibbs CJ.

[22] Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 at 294-295 per Mason CJ, Wilson and Gaudron JJ.

[23] Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 at 301 per Brennan and Dawson JJ, approving words of Lord Hailsham of St Marylebone LC in R v Kilbourne [1973] AC 729 at 749.

[24] Director of Public Prosecutions v P [1991] 2 AC 447 at 460 per Lord Mackay of Clashfern L[25] Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 at 483 per Mason CJ, Deane and Dawson JJ.

[31] Only mentioned in two paragraphs and then in the context of criticising the trial judge and O’Keefe [2000] 1 Qd R 564: (2006) 225 CLR 303 [9], [32].

[32] (2006) 225 CLR 303 [63].

[33] Hughes (2017) 344 ALR 187 [215] (Gordon J), quoting from IMM v The Queen (2016) 257 CLR 300 [46]; see also (2017) 344 ALR 187 [16],[40] (Kiefel CJ, Bell, Keane and Edelman JJ).

[34] Donald Piragoff, Similar Fact Evidence: Probative Value and Prejudice (Carswell, 1981), 146.

[35] David Hamer, ‘The Significant Probative Value of Tendency Evidence’ (2019) 42 Melbourne University Law Review 506, 527.

[36] All but one occurred over a 16 month period, with one occurring 18 months later.

[37] (2006) 225 CLR 303 [56].

[38] Ibid [63].

[39] Ibid [47].

[40] For this reason, it seems odd that the Hayne J raised it as an appeal point, and the court made it one of the bases for the decision: David Hamer, ‘Similar Fact Reasoning in Phillips: Artificial, Disjointed and Pernicious (2007) 30 UNSW Law Journal 609, 617 fn 62. See also Kirby J in Evans (2007) 235 CLR 521 [99]-[100].

[41] [2018] QCA 113.

[42] Ibid [24].

[43] Ibid.

[44] Ibid [25].

[45] Ibid [36].

[46] [2014] QCA 389.

[47] Ibid [38].

[48] Ibid [50].

[49] [2011] QCA 86.

[50] Ibid [22].

[51] Ibid [24].

[52] Ibid [26].

[53] Ibid [24].

[54] [2018] QCA 113.

[55] Ibid [26].

[56] Ibid [29]

[57] Ibid [32].

[58] [2019] QCA 120.

[59] [2018] HCA 40.

[60] [2019] QCA 120 [13], quoting from Bauer [2018] HCA 40 [58].

[61] [2019] QCA 120 [226]-[227] citing Bauer [2018] HCA 40 [58]; Phillips (2006) 225 CLR 303 [54]; Pfennig (1995) 182 CLR 461, 485.

[62] [2014] QCA 389 [40].

[63] Ibid [50].

[64] ibid [52].

[65] [2018] QCA 115.

[66] Ibid [83]-[84].

[67] Ibid [101]-[107].

[68] Ibid [91]-[96].

[69] [2006] QCA 220.

[70] Ibid [45].

[71] [2018] QCA 115 [105].

[72] Ibid [104].

[73] Ibid [106].

[74] Ibid [110].

[75] Gregory [2011] QCA 86 [29].

[76] Supreme and District Courts Criminal Directions Benchbook (March 2017 Amendments), ‘Similar Fact Evidence’ [52].

[77] Eg Little [2018] QCA 113 [33]; Gregory [2011] QCA 86 [29]; Nibigira [2018] QCA 115 [110].

[78] Supreme and District Courts Criminal Directions Benchbook (March 2017 Amendments), ‘Similar Fact Evidence’ [52].

[79] Eg, DAO (2011) 81 NSWLR 568 [171] (Simpson J).

[80] Eg, BC [2015] NSWCCA 327 [70] (Adams J, dissenting).

[81] (2017) 344 ALR 187 [81] citing Lockyer (1996) 89 A Crim R 457, 459.

[82] (2017) 344 ALR 187 [215] (Gordon J), quoting from IMM v The Queen (2016) 257 CLR 300 [46]; see also (2017) 344 ALR 187 [16],[40] (Kiefel CJ, Bell, Keane and Edelman JJ).

[83] Eg, contrast the more liberal approach to incestuous CSO cases in RHB [2011] VSCA 295 [18] and DR [2011] VSCA 440 [58] with the stringency of Velkoski (2014) 45 VR 680 [115].

[84] (2014) 45 VR 680.

[85] Ibid [133] citing Reeves v The Queen (2013) 41 VR 275 [53].

[86] Velkoski (2014) 45 VR 680, [120], [155] citing, eg R v Ford (2009) 273 ALR 286 [41]; R v PWD (2010) 205 A Crim R 75 [79].

[87] Velkoski (2014) 45 VR 680, 717 [164].

[88] (2015) 93 NSWLR 474 [188]. This is a little ambiguous. It could mean that the NSWCCA considers that the VCA has misrepresented the NSWCCA’s approach. But in the context it appears to mean that the NSWCCA does not accept the VCA’s approach.

[89] Some was only held admissible in respect of some counts: Hughes v The Queen (2015) 93 NSWLR 474 [140].

[90] Hughes, ‘Appellant’s Submissions’, Submission in Hughes v The Queen, Case No S226/2016, 7 October 2016, [20].

[91] Ibid [77].

[92] Ibid [21].

[93] (2017) 344 ALR 187 [62].

[94] Ibid [12].

[95] Ibid [32].

[96] Ibid [173].

[97] Ibid [194].

[98] Ibid [39] (emphasis added).

[99] Ibid.

[100] Ibid [95].

[101] DPP v P [1991] 2 AC 447, 462; Pearl Davidson, ‘A Tendency to Convict: Section 97 Evidence Act in Hughes v The Queen’ (2018) 22 International Journal of Evidence and Proof 144, 154-155. See discussion in David Hamer, ‘The Structure and Strength of the Propensity Inference: Singularity, Linkage and the Other Evidence’ (2003) 23 Monash University Law Review 137, 183-5.

[102] Royal Commission into Institutional Responses to Child Sexual Abuse (Criminal Justice Report, 2017) Parts III—VI, 594-595, 606.

[103] David Hamer, ‘The Significant Probative Value of Tendency Evidence’ (2019) 42 Melbourne University Law Review 506, 524-525; David Hamer, ‘The Structure and Strength of the Propensity Inference: Singularity, Linkage and the Other Evidence’ (2003) 29 Monash University Law Review 137, 175, 184.

[104] R v John W [1998] 2 Cr App R 289, 301; quoted with approval, English Law Commission, Evidence of Bad Character in Criminal Proceedings, Law Com No 273, Cm 5257 (October 2001), [2.23], [4.6]; see also David Hamer, ‘The Structure and Strength of the Propensity Inference: Singularity, Linkage and the Other Evidence’ (2003) 29 Monash University Law Review 137, 184-5. See also, R v Bromley [2018] SASCFC 41 [491] where the court notes the suggestion in Hughes that more is expected in identification case and adds, ‘Of course, the term “identification cases” may itself subsume cases of varying types so as to impact on the degree of similarity required.’

[105] (2017) 344 ALR 187 [39].

[106] Ibid [64] (Kiefel CJ, Bell, Keane and Edelman JJ).

[107] ibid [93] (Gageler J).

[108] Ibid [57]; see also [111] (Gageler J).

[109] Ibid [2] emphasis added; see also [114] (Gageler J).

[110] Ibid [158].

[111] Ibid. Nettle J used the term ‘logically significant connection’ in a conclusory fashion without unpacking it.

[112] Ibid.

[113] Ibid [159], [169].

[114] [2018] HCA 40.

[115] [2018] HCA 52.

[116] [2018] HCA 40 [48].

[117] Ibid [58].

[118] Ibid.

[119] Ibid [60], at [55] distinguishing IMM (2016) 257 CLR 300.

[120] [2018] HCA 52 [17].

[121] Ibid [18].

[122] Ibid [24].

[123] Ibid [27].

[124] Ibid [31].

[125] Ibid [31].

[126] Ibid [32].

[127] [2018] HCA 40 [86] citing various cases at fn 88. See also David Hamer, ‘“Tendency Evidence” and “Coincidence Evidence” in the Criminal Trial: What’s the Difference?’ in Andrew Roberts and Jeremy Gans (eds), Critical Perspectives on the Uniform Evidence Law (Federation Press, 2017) 158, 164-168.

[128] (1990) 170 CLR 573 at 584-585.

[129] Eg, HML (2008) 235 CLR 334; David Hamer, ‘Admissibility and Use of Relationship Evidence in HML v The Queen: One Step Forward, Two Steps Back’ (2008) 32 Criminal Law Journal 351-368.

[130] The familiar image is attributed to Edward W Cleary (ed), McCormick’s Handbook of the Law of Evidence (West Publishing Co, 2nd ed, 1972) 436.

[131] Royal Commission, Criminal Justice Report (Commonwealth of Australia, 2017), Parts III-VI, 411; see at 591.

[132] In fact the Royal Commission expressed concern that the stringency of the common law had adversely affected the interpretation of the UEL: ibid 641-642; on the relationship between common law and the UEL see Hughes (2017) 344 ALR 187 [180]-[181] (Nettle J); David Hamer, ‘The Significant Probative Value of Tendency Evidence’ (2019) 42 Melbourne University Law Review 506, 520-521.

[133] Royal Commission, Criminal Justice Report (Commonwealth of Australia, 2017), Parts III-VI, 635.

[134] Royal Commission, Criminal Justice Report (Commonwealth of Australia, 2017), Parts VII to X, Appendix N. The legislation was drafted by New South Wales Parliamentary Counsel’s Office: above n 3, 649.

[135] Following consultation: NSW Department of Justice, ‘Strengthening child sexual abuse laws in NSW’, (Discussion Paper September 2017), 94.

[136] Council of Attorneys-General, ‘Communique, 1 December 2017.

[137] Mark Speakman, NSW Attorney General, ‘Evidence Law Reform’ (‘Media Release’, 28 June 2019) https://www.justice.nsw.gov.au/Pages/media-news/media-releases/2019/evidence-law-reform.aspx .

[138] The Royal Commission saw ‘considerable merit’ in eliminating the distinction, and ‘little merit in maintaining what seems to be an artificial distinction’: Royal Commission, Criminal Justice Report (Commonwealth of Australia, 2017), Parts III-VI, 643. Ultimately, however, the Royal Commission recommended maintaining the distinction and focused on broadening admissibility, ‘anticipat[ing] that in due course’ it would be abolished: ibid. Why wait?

[139] Eg Criminal Procedure Act 1986 (NSW) s 294.

[140] Crofts (1996) 186 CLR 427, 452.

[141] Longman (1989) 16 CLR 79, 90; UEL s 165B.

[142] Royal Commission, Criminal Justice Report (Commonwealth of Australia, 2017), Parts I-II, 164-168.

[143] Royal Commission, Criminal Justice Report (Commonwealth of Australia, 2017), Parts III-VI, 411.

[144] Eg, ‘In 58 per cent of cases, the offender had committed CSA offences against more than

one victim’: Karen Gelb, A statistical analysis of sentencing for child sexual abuse in an institutional context, (Royal Commission into Institutional Responses to Child Sexual Abuse, 2016) ix.

[145] Eg, Royal Commission, Criminal Justice Report (Commonwealth of Australia, 2017), Parts III-VI, Ch 24.

[146] David Hamer, ‘Propensity Evidence Reform after the Royal Commission into Child Sexual Abuse’ (2018) 42 Criminal Law Journal 234. The common law version of test continues to operate in Canada, and has legislative form in NZ: Handy [2002] 2 SCR 908 [55]; Evidence Act 2006 (NZ) s 43(1). See David Hamer, The Admissibility and Use of Tendency, Coincidence and Relationship Evidence in Child Sexual Assault Prosecutions in a Selection of Foreign Jurisdictions (Royal Commission into Institutional Responses to Child Sexual Abuse, 2016).

[147] [2018] HCA 40 [69].

[148] Hoch (1988) 165 CLR 292.

[149] Eg, Evidence Act 1977 (Qld) s 132A.

[150] As were the English courts in response to similar reforms in the Criminal Justice Act 2003 (UK) Part 1 Ch 11: Saleem [2007] EWCA Crim 1923 [23]; see also Chopra [2007] 1 Cr App R 225 [12]; Manister [2006] 1 Cr App R 19 [35]; Edwards [2005] EWCA Crim 3244, [1]; Mike Redmayne, Character in the Criminal Trial (2015), 145.

[151] [2002] 2 SCR 908 [76]; A similar list appears in the New Zealand Evidence Act 2006 s 43(3). The New Zealand Act does not draw a distinction between the two types of reasoning. Stephen Odgers’ commentary on the Uniform Evidence Law provides a similar list under the ‘tendency’ heading, and notes that it has ‘some application’ to coincidence evidence: Stephen Odgers, Uniform Evidence Law (12th ed, 2016) [97.120], [98.120].

[152] Hughes (2017) 344 ALR 187 [110].

[153] Ibid; although the parties and the Court did draw on the work conducted by the ALRC in its evidence law reviews: David Hamer, ‘The Significant Probative Value of Tendency Evidence’ (2019) 42 Melbourne University Law Review 506, 535-540.

[154] Royal Commission, Criminal Justice Report (Commonwealth of Australia, 2017), Parts III-VI, 595.

[155] Ibid.

[156] Mike Redmayne, Character in the Criminal Trial (2015), 30.

[157] Annie Cossins, ‘The Behaviour of Serial Child Sex Offenders: Implications for the Prosecution of Child Sex Offences in Joint Trials’ (2011) 35 Melbourne University Law Review 821, Table 1, 825—828.

[158] Peter M Robinson, ‘Prior convictions, conduct and disposition: a scientific perspective’ (2016) 25 Griffith Law Review 197, 205.

[159] M Redmayne, Character in the Criminal Trial, (2015), pp 21-2, quoted at Royal Commission, Criminal Justice Report (Commonwealth of Australia, 2017), Parts III-VI, 606.

[160] David Hamer, Submission to the Royal Commission into Institutional Responses to Child Sexual Abuse, Consultation paper: Criminal justice, 2016, p 6; quoted by Royal Commission, Criminal Justice Report (Commonwealth of Australia, 2017), Parts III-VI, p 606.

[161] Stephen Smallbone and Richard Wortley, ‘Child Sexual Abuse in Queensland: Offender Characteristics and Modus Operandi’, Trends & Issues in Crime and Criminal Justice No 193 (Australian Institute of Criminology, 2001) 6.

[162] Australian Bureau of Statistics, Population by Age and Sex, Queensland, 2000, Cat No 3235.3.

[163] Stephen Smallbone and Richard Wortley, ‘Child Sexual Abuse in Queensland: Offender Characteristics and Modus Operandi’, Trends & Issues in Crime and Criminal Justice No 193 (Australian Institute of Criminology, 2001), 13.

[164] Ibid 18.

[165] Hughes (2017) 344 ALR 187 [157].

[166] Ibid. Other courts have also made dubious claims about child sexual assault not being unusual. See discussion in David Hamer, ‘Proof of Serial Child Sexual Abuse: Case-law Developments and Recidivism Data’ in Thomas Crofts and Arlie Loughnan (eds), Criminalisation and Criminal Responsibility in Australia , 242, 249-250.

[167] Hughes (2017) 344 ALR 187 [202].

[168] See also Annie Cossins, ‘The Future of Joint Trials of Sex Offences after Hughes: Resolving Judicial Fears and Jurisdictional Tensions with Evidence-Based Decision-Making’ (2018) 41(3) Melbourne University Law Review (advance) 12, 25.

* david.hamer@sydney.edu.au