Hughes v The Queen [2017] HCA 20

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

ROBERT LINDSAY HUGHES APPELLANT

AND

THE QUEEN RESPONDENT

Hughes v The Queen [2017] HCA 20 14 June 2017 S226/2016

ORDER

Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation

P R Boulten SC with K J Edwards for the appellant (instructed by Greg Walsh & Co)

L A Babb SC with K N Shead SC and B K Baker for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

G J C Silbert QC and N Rogers SC with B L Sonnet for the Director of Public Prosecutions (Vic), intervening (instructed by Solicitor for Public Prosecutions (Vic))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Hughes v The Queen

Evidence – Admissibility – Tendency evidence – Evidence Act 1995 (NSW), s 97(1)(b) – Where appellant charged with 11 sexual offences against five female children aged under 16 years – Where prosecution permitted to adduce evidence of each complainant and other witnesses as tendency evidence – Where alleged tendencies identified as having sexual interest in underage girls and as using relationships to gain access to underage girls in order to engage in sexual activities with them – Whether tendency evidence required to display features of similarity with facts in issue in order to have "significant probative value" – Whether tendency evidence had "significant probative value".

Words and phrases – "modus operandi", "pattern of conduct", "probative value", "significant probative value", "tendency evidence", "underlying unity".

Evidence Act 1995 (NSW), s 97(1)(b).

KIEFEL CJ, BELL, KEANE AND EDELMAN JJ. Section 97(1)(b) of the Evidence Act 1995 (NSW) excludes evidence of the character, reputation or conduct of a person to prove that the person has or had a tendency to act in a particular way or to have a particular state of mind ("tendency evidence") unless the court thinks that the tendency evidence will have "significant probative value". The provision is enacted in the same terms in the uniform evidence legislation of the Commonwealth, Tasmania, Victoria, the Australian Capital Territory and the Northern Territory ("the Evidence Act"). The issue in the appeal is the extent to which, if at all, evidence of conduct adduced to prove a tendency is required to display features of similarity with the facts in issue before it can be assessed as having "significant probative value". The issue arises in the familiar context of the trial of counts charging an accused with sexual offences against several children at which the prosecution seeks to adduce the evidence of each complainant in support of its case on each count. The issue reduces in this case to the question of whether proof that a man of mature years has a sexual interest in female children aged under 16 years ("underage girls") and a tendency to act on that interest by engaging in sexual activity with underage girls opportunistically, notwithstanding the risk of detection, is capable of having significant probative value on his trial for a sexual offence involving an underage girl. The answer is that, in a case in which the complainant's evidence of the conduct the subject of the charge is in issue, proof of that tendency may have that capacity. Procedural history On 10 February 2014 the appellant was arraigned in the District Court of New South Wales (Zahra DCJ) on an indictment that charged him in 11 counts with sexual offences committed against five underage girls. Prior to the trial, the prosecution served the appellant with notice of its intention to adduce tendency evidence at the trial. The evidence of each complainant and a number of other witnesses was to be adduced in the trial of each count to prove tendencies identified as "having a sexual interest in female children under 16 years of age" and using "his social and familial relationships … to obtain access to female children under 16 years of age so that he could engage in sexual activities with them". The notice particularised differing forms of sexual conduct with underage girls. One particular of that conduct was its occurrence within the vicinity of another adult. The complainants were aged between six and 15 years at the date of the offending. The acts charged in each count and the circumstances of their commission varied. They included digital penetration of the vagina of a girl aged 14 or 15 years; procuring a girl aged between six and eight years to masturbate him; indecently rubbing his erect penis against a nine year old girl; encouraging a 15 year old girl to touch his penis; and indecently exposing himself to girls aged nine and 12 or 13 years. The prosecution also sought to adduce tendency evidence from additional witnesses. Three were women who described occasions when they had been at the appellant's home as young girls on which he had either touched them in a sexual way or exposed his penis in their presence. Another three were women who had worked with the appellant ("the workplace tendency witnesses"). They described occasions, when they were aged in their late teens or early twenties, when the appellant had inappropriately sexually touched them or exposed himself to them. The appellant applied for severance of the counts relating to each complainant and an order for separate trials. The success of the application turned on the admissibility of the tendency evidence. The admissibility of the tendency evidence was determined before the jury was empanelled by reference to the statements of the complainants and the tendency witnesses. A summary of the evidence given at the trial, which did not materially depart from the accounts contained in the statements, is set out later in these reasons. The trial judge rejected the appellant's challenge that the evidence lacked sufficient similarity to the charged conduct to have significant probative value. His Honour said that contention focused too narrowly on the need to prove a tendency to engage in sexual activity in a particular fashion. His Honour assessed the probative value of proof of the tendencies as particularised above to be significant in circumstances in which the fact in issue in each count was the occurrence of the sexual conduct charged. His Honour held that the evidence of the workplace tendency witnesses was not admissible in support of counts one to 10. The evidence of these witnesses was found to have significant probative value with respect to proof of the offence charged in count 11. This offence occurred at the appellant's workplace and involved him exposing his penis to the complainant, who was aged 12 or 13 years. The jury was directed that the evidence of the workplace tendency witnesses was relevant to the determination of count 11. The Court of Criminal Appeal held that the written and oral directions made clear that the evidence could not be used in consideration of counts 1 to 10. The correctness of that conclusion is not an issue in the appeal. On 7 April 2014, the jury returned verdicts of guilty on the first nine counts in the indictment. On 8 April 2014, the jury returned a verdict of guilty on the eleventh count. The jury was unable to agree on count 10 and was discharged without verdict. The appellant was sentenced to an aggregate sentence of 10 years and nine months' imprisonment, with a non-parole period of six years, to date from 7 April 2014. The Court of Criminal Appeal The appellant appealed against his convictions to the New South Wales Court of Criminal Appeal (Beazley P, Schmidt and Button JJ), contending that, having regard to the breadth of the tendency that it was adduced to prove, the tendency evidence did not possess significant probative value. The appellant's argument drew support from the statement of the Court of Appeal of the Supreme Court of Victoria in Velkoski v The Queen that tendency evidence must possess "sufficient common or similar features with the conduct in the charge in issue so as to demonstrate a pattern that cogently increases the likelihood of the occurrence of that conduct". The Court of Criminal Appeal declined to follow Velkoski and held, consistently with a line of New South Wales authority, that there is no requirement that the conduct evidencing the tendency display features of similarity with the charged conduct. The evidence disclosed the appellant's sexual interest in underage girls and tendency to engage in sexual activity with them opportunistically as the occasion presented in social and familial settings and the work environment. The Court of Criminal Appeal concluded that the evidence had been rightly admitted because proof of the tendency made proof of the fact of the commission of the offence charged more likely to a significant extent. On 2 September 2016, Gageler and Gordon JJ granted the appellant special leave to appeal on two grounds. The first ground contends error in the conclusion that the tendency evidence possessed "significant probative value". The second ground contends error in the rejection of the approach adopted in Velkoski to the assessment of that question. It raises consideration of the divergence between the Court of Appeal of the Supreme Court of Victoria and the Court of Criminal Appeal of New South Wales and the courts of Tasmania and the Australian Capital Territory with respect to the admission of tendency evidence under the Evidence Act. The Director of Public Prosecutions for Victoria ("the Victorian Director") was given leave to intervene in support of the respondent with respect to the second ground of appeal. For the reasons to be given, the Victorian Director's submission, that Velkoski evinces an unduly restrictive approach to the admission of tendency evidence, is accepted. The Court of Criminal Appeal's conclusion that the tendency evidence adduced at the appellant's trial had significant probative value in relation to proof of each count in the indictment was not attended by error and it follows that the appeal must be dismissed. The scheme of the Evidence Act governing tendency evidence Subject to the exclusionary rules in Pts 3.2 to 3.11 of the Evidence Act, evidence that is relevant in a proceeding is admissible in the proceeding. Evidence is relevant if it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue. Part 3.6 governs the admission of evidence of tendency and coincidence. At common law, this evidence is governed by rules concerning propensity and similar fact evidence. The intention of the Evidence Act to make substantial changes to the common law rules is evident in the provision for the admission of tendency and coincidence evidence. That provision in respect of tendency evidence is in s 97(1): "Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value." That provision in respect of coincidence evidence is in s 98(1): "Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value." The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. The capacity of tendency evidence to be influential to proof of an issue on the balance of probability in civil proceedings may differ from the capacity of the same evidence to prove an issue beyond reasonable doubt in criminal proceedings. The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence. In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years. In a criminal proceeding, before tendency evidence may be adduced by the prosecution about the accused, the court must first ask whether the evidence has significant probative value and, if it does, the court must next ask whether that value substantially outweighs any prejudicial effect the evidence may have on the accused. The appeal is concerned with the answer to the first question. Ground two – a requirement of similarity It is convenient to address the second ground first. This ground contends that the Court of Criminal Appeal erred by holding that an "underlying unity" or "pattern of conduct" need not be established before tendency evidence is held to have significant probative value and by declining to follow Velkoski. The appellant's argument acknowledges that s 97(1) does not refer to similarity, unlike s 98(1). Nonetheless, he submits that the inferential process of reasoning from proof of tendency inherently invokes consideration of the similarity between the tendency and the fact or facts in issue: tendency evidence depends for its probative value on how persuasively it can be reasoned that the person will behave in a way that is consistent with the tendency. The legislative choice to condition the admission of tendency evidence on the evidence having significant probative value, and to preclude tendency reasoning if the evidence is not admissible under Pt 3.6 even if it is relevant for another purpose, is said to reflect long-standing scepticism of tendency reasoning and appreciation of the dangers of the unfair prejudice to which it may give rise. The appellant refers to the interim report of the Australian Law Reform Commission ("the ALRC") for the proposition that the dangers of tendency reasoning are greater in cases in which the tendency does not share features of similarity with the conduct in issue. At the time the ALRC published its reports in its landmark reference on the law of evidence, the preponderance of English and Australian authority was against the admission of evidence of propensity altogether. The ALRC considered that the rules precluding the prosecution from adducing evidence of the bad character of the accused were supported by the results of psychological research. The research was concerned with the value of evidence of general behavioural traits such as honesty. A person's general disposition was found to be of little value as a predictive tool, whereas a person's behaviour in similar situations might justify prediction. The ALRC questioned the inflexible rejection of reasoning from propensity. In cases in which it is established that the accused was responsible for other unusual acts, the ALRC pointed out, it is possible to reason to guilt via either propensity or the improbability of coincidence. The analysis anticipated Pfennig v The Queen. The focus of the analysis remained on the singularity of the propensity. Reflecting this thinking, in the draft Evidence Bill appended to its final report the ALRC conditioned the admission of tendency evidence on proof of substantial and relevant similarity. The legislative history of Pt 3.6 of the Evidence Act as enacted is traced in Spigelman CJ's judgment in R v Ellis. It suffices to observe that among the differences between the ALRC's draft and s 97, as enacted, is the omission of any requirement of similarity. The legislature's choice to reject the ALRC's recommendation in this respect is unexplained, but, as Spigelman CJ observed, it is a choice which makes the ALRC's reports less useful on this subject than on other subjects. The Court of Appeal in Velkoski undertook a comprehensive review of the authorities touching on the admission of tendency evidence. Their Honours identified an approach in New South Wales in recent years that is less restrictive than the approach taken in Victoria, or by the Court of Criminal Appeal in earlier years. The Court of Appeal concluded that the more recent New South Wales approach sets the threshold for the admission of tendency evidence too low. The recent New South Wales approach was said to be exemplified by the decisions in R v Ford and R v PWD. Ford and PWD were each successful prosecution appeals against a ruling excluding tendency evidence on the trial of sexual offences. R v Ford In Ford, on an indictment charging the accused with sexual intercourse without consent, the prosecution sought to lead evidence of indecent assaults, committed by the accused against two other complainants, as evidence of the accused's tendency to sexually and indecently assault women who had fallen asleep at his home after drinking alcohol. The trial judge rejected the tender, holding that the differences in the nature of the sexual conduct on each occasion deprived the evidence of significant probative value. Campbell JA, giving the leading judgment in the Court of Criminal Appeal, rejected the need for tendency evidence to prove a tendency to commit acts closely similar to the acts constituting the charged offence. His Honour observed that all "that a tendency need be, to fall within the chapeau to s 97(1), is 'a tendency to act in a particular way'". His Honour concluded: "[a]ll that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged". Evidence that on three occasions the accused had sexually assaulted an intoxicated woman who had fallen asleep at his home demonstrated a tendency to act in a particular way. Proof of that tendency was found to have significant probative value in the context of the issues in the trial. R v PWD In PWD, 10 counts charging the accused with sexual offences against four boys were joined in the same indictment. The complainants were boarders at a school of which the accused was the principal. The prosecution sought to adduce the evidence of each complainant and of two further witnesses on the trial of each count to prove the accused's tendency to be sexually interested in young male students and to use his position of authority to engage in sexual activity with them. The sexual conduct and the circumstances in which the conduct occurred varied. The trial judge considered these differences deprived the tendency evidence of significant probative value and ordered separate trials. Allowing the appeal, the Court of Criminal Appeal followed Ford and held that the admissibility of tendency evidence does not depend upon the evidence exhibiting "striking similarities, or even closely similar behaviour". The tendency which the Court of Criminal Appeal identified the evidence to be capable of proving was the accused's sexual attraction to young male students and tendency to act on that attraction by engaging in various sexual acts with boarders who were vulnerable because they were homesick or otherwise unable to adjust to the normal pattern of school life. Given that the occurrence of the offences was in issue, proof of the tendency had significant probative value, including by excluding that the accused's relationship with each student was an innocent one. Velkoski v The Queen The indictment in Velkoski charged the accused with 15 counts of committing an indecent act with a child under the age of 16 years and one count of attempting to commit that offence. The offences were alleged to have been committed against three complainants while each was attending the day-care centre run by the accused's wife. The indecent acts with which the accused was charged included: touching a child's penis; encouraging a child to take hold of the accused's penis; touching a child on the vagina; and touching a child on the bottom. The tendency notice served by the prosecution identified the tendencies that it was sought to prove as "the accused had a sexual interest in young children attending the day-care centre run by his wife" and "the accused was willing to act on that sexual interest by engaging in sexual acts with the complainants". The defence did not object to the reception of the tendency evidence at the trial. On appeal against conviction, the defence resiled from that concession. The Court of Appeal commenced its analysis in Velkoski by commenting on the stringency of the common law similar fact rule in its application to the prosecution of sexual offences: "This high threshold meant that, in many cases, juries were left to consider the evidence concerning each alleged victim in isolation, without ever being made aware of the fact that allegations of a similar kind had been made by other complainants. Such cases often involved allegations that went back many years, and sometimes came down to a consideration of oath against oath. The result, in a great many cases, was a series of acquittals, whereas, had the evidence been made available, the outcome would almost certainly have been different." The Court of Appeal correctly observed that the common law principles governing the admission of similar fact evidence have been abrogated and entirely replaced by Pt 3.6 of the Evidence Act. Nonetheless, their Honours went on to hold that the common law concepts of "underlying unity", "pattern of conduct" and "modus operandi" continue to inform the assessment of whether evidence is capable of supporting tendency reasoning. The conclusion was linked to the view that the object of s 97(1)(b) is to protect against the risk of an unfair trial. Requiring significant probative value to be assessed by the criterion of similarity of operative features was said to protect against this risk. Their Honours were critical of cases in which the prosecution adduces tendency evidence to establish "the offender's interest in particular victims and his willingness to act upon that interest" because such evidence discloses only "rank propensity". Their Honours said that once the jury is satisfied that the acts relied upon as tendency have been committed, any resort to proof of the offender's state of mind to support tendency reasoning is impermissible and highly prejudicial. These statements, couched in the language of the common law, do not stand with the scheme of Pt 3.6. They are apt to overlook that s 97 applies to civil and criminal proceedings. In criminal proceedings, the risk that the admission of tendency evidence may work unfairness to the accused is addressed by s 101(2). Moreover, s 97(1) in terms provides for the admission of evidence of a person's tendency to have a particular state of mind. An adult's sexual interest in young children is a particular state of mind. On the trial of a sexual offence against a young child, proof of that particular state of mind may have the capacity to have significant probative value. The Court of Appeal went on to state that: "To remove any requirement of similarity or commonality of features does not ... give effect to what is inherent in the notion of 'significant probative value.' If the evidence does no more than prove a disposition to commit crimes of the kind in question, it will not have sufficient probative force to make it admissible." This reasoning glosses the language of s 97(1)(b) of the Evidence Act; it does not explain its "inherent" meaning. The circumstance that the text of s 97(1)(b) does not include reference to similarity or to the concepts of "underlying unity", "pattern of conduct" or "modus operandi" is a clear indication that s 97(1)(b) is not to be applied as if it had been expressed in those terms. The omission of these familiar common law concepts is eloquent of the intention that evidence which may be significantly probative for the purposes of s 97(1)(b) should not be limited to evidence exhibiting the features so described. The Court of Appeal identified the following principle: "[W]e have examined the principle which is applied in determining whether tendency evidence is admissible. The principle consistently applied in this court is that the evidence must possess sufficient common or similar features with the conduct in the charge in issue so as to demonstrate a pattern that cogently increases the likelihood of the occurrence of that conduct." Applying this principle, the Court of Appeal held that it had been open to the prosecution to adduce tendency evidence in respect of the counts which had the common feature of the accused encouraging the complainant to touch his, the accused's, penis, or exposing his penis to the complainant. The remaining counts, however, were held to have lacked any sufficiently similar feature to permit tendency reasoning. The convictions were set aside and a new trial was ordered. The Velkoski analysis proceeds upon the assumption that, regardless of the fact in issue, the probative value of tendency evidence lies in the degree of similarity of "operative features" of the acts that prove the tendency. It is an analysis that treats tendency evidence as if it were confined to a tendency to perform a particular act. Depending upon the issues in the trial, however, a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it. Velkoski is illustrative. The expression of the accused's sexual interest in young children was not confined to soliciting them to touch his penis: he repeatedly touched one complainant's penis and he touched other complainants on their vaginas and bottoms. Confining the tendency evidence to counts charging an occasion on which he solicited one of the complainants to touch his penis did not give the tendency evidence its relative strength. There was no reason to find that the accused was more likely to act on his sexual interest in young children by soliciting one of the complainants to touch his penis than he was to sexually molest the complainant at the day-care centre in another way. Given that the issue in each case was the occurrence of the offence, proof of the tendencies which the prosecution identified had significant probative value. Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence. In the trial of child sexual offences, it is common for the complainant's account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford: "the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged". The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible. The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged. Unlike the common law which preceded s 97(1)(b), the statutory words do not permit a restrictive approach to whether probative value is significant. However, the open-textured nature of an enquiry into whether "the court thinks" that the probative value of the evidence is "significant" means that it is inevitable that reasonable minds might reach different conclusions. This means that in marginal cases it might be difficult to know whether an appellate court might take a different view of the significance of the tendency evidence from a trial judge. This might result in the setting aside of any conviction and an order for a retrial. There may also be other risks for the prosecution. The admissibility of the tendency evidence is assessed based upon the evidence that witnesses are expected to give. In this case, the evidence given by the witnesses did not differ materially from their anticipated evidence. But in cases where the admissibility of tendency evidence is borderline, there may be risks if the actual evidence does not accord with the evidence as anticipated. Again, this could have consequences for any conviction. One intermediate appellate court has recently observed that the potential consequence of a new trial in cases where a conviction is overturned due to the wrongful admission of tendency evidence which was borderline should be a matter taken into account by the prosecution in assessing, perhaps conservatively, what tendency evidence it will rely upon. In any event, the open-textured, evaluative task remains one for the court to undertake by application of the same well-known principles of logic and human experience as are used in an assessment of whether evidence is relevant. Ground one This ground challenges the conclusion that the tendency evidence adduced at the appellant's trial possessed significant probative value. At the outset it is to be noted that the prosecution did not seek to rely on the improbability of the complainants falsely making allegations of sexual impropriety against the appellant, so the appeal does not invite consideration of any overlap between tendency and coincidence reasoning. The evidence Counts one and two charged offences against JP of sexual intercourse without consent, knowing that JP was not consenting. The offences were alleged to have occurred when JP was aged 14 or 15 years on occasions when the appellant and his wife were dinner guests at JP's home. The first count charged an occasion when the appellant entered JP's bedroom while she was asleep. JP was sharing a bed with the appellant's daughter. JP woke to find the appellant's hand inside her pyjama pants. He digitally penetrated her vagina. She pushed his hand away and he licked her cheek and left the room. The second count occurred a month or so later when the appellant again entered JP's bedroom. On this occasion JP was asleep on her own. She woke to find the appellant's hand inside her pyjama pants, he again digitally penetrated her vagina and he touched her clitoris for around 10 minutes. JP also said there were other occasions when the appellant entered her bedroom and touched her on the vagina. The third, fourth, fifth and sixth counts charged indecent assaults on SH, which occurred on occasions when she was aged six, seven or eight years. The offences arose out of two incidents that occurred when SH was staying overnight at the appellant's home. On each occasion the appellant went into the bedroom where SH and the appellant's daughter were sleeping, wakened SH, and made her masturbate him. On each occasion he ejaculated and rubbed semen over the mound of SH's vagina with his penis. SH gave evidence of similar incidents that had occurred on other occasions. The seventh, eighth and ninth counts charged aggravated indecent assaults against AK, which took place when she was aged nine years. The seventh and eighth counts charged offences that occurred on an occasion when the appellant took AK and his daughter on an outing to the beach. The appellant suggested that the girls swim between his legs. On both occasions when AK did so, the appellant pinned her between his legs, exposing his penis to her. The ninth count charged an incident that occurred on an occasion when AK was staying overnight at the appellant's home. AK had an ear infection and she lay on the appellant's lap while he put drops in her ears. AK felt the appellant's erect penis rubbing against her cheek bone as he moved her head to position it in the light. When she swapped sides so that the appellant could put drops in her other ear, AK again felt his erect penis against her face. AK gave evidence of another occasion on which she had sat on the appellant's lap and felt his penis "digging into her buttock" as he moved her legs from side to side. She said that on other occasions the appellant had exposed his penis and testicles to her. The tenth count charged the appellant with inciting EE to commit an act of indecency with him. EE was 15 years old at the time. She had come to know the appellant when she was doing a work experience placement with his wife. The offence was alleged to have occurred on an occasion when the appellant had driven EE to her home. EE said that as they walked down the driveway at her home they had starting kissing and that she had moved her hand onto the appellant's erect penis over his clothing. EE gave evidence of another occasion in a park when she had sat leaning against the appellant and felt his erect penis against the small of her back. They had kissed and the appellant had touched her nipples and vulva through her clothing. The eleventh count charged the appellant with committing an act of indecency towards SM when SM was 12 or 13 years old. The appellant and SM were both appearing in a television series called Hey Dad..!. The appellant came out of his dressing room, stood in front of a mirror in SM's view and undid his belt, letting his pants and underpants drop to his ankles. He wiggled his hips back and forth exposing his penis as he looked at SM in the mirror. SM also gave evidence of occasions when she had sat on the appellant's lap while publicity photographs were taken. On these occasions SM said the appellant had put his hand underneath her and touched her on the chest, making her feel uncomfortable. AA, a member of the appellant's extended family, gave evidence of an occasion when she was aged between 10 and 14 years when the appellant touched her on the breast and between her legs as she was swimming. AA also gave evidence of seeing the appellant in her bedroom touching his genitals while he stood naked in front of a mirror with the bedroom door open. On another occasion, AA said the appellant had touched her breasts shortly after his daughter left the room. BB, another member of the appellant's extended family, gave evidence of an incident that occurred when she was 11 years old. She was at a birthday party at the appellant's home when he touched her breasts under her shirt and put his hand underneath the elastic of her jeans. VOD stayed overnight with SH at the appellant's home on occasions when she was aged between seven and nine years. She gave evidence that the appellant had come into the bedroom which she was sharing with SH and walked around the room naked and that she had seen his genitals. The workplace tendency witnesses all worked in the costume department of Hey Dad..!. LJ was about 24 years old at the time. She said that the appellant often slept in his dressing room during breaks and that she had to wake him. On occasions she would find him naked and uncovered. On other occasions LJ said that the appellant had made her feel uncomfortable by trying to grab her breast when hugging her and brushing past her, rubbing his genitals against her back or bottom. CS was about 19 or 20 years old when she worked on Hey Dad..!. She said the appellant had made her feel uncomfortable by, when brushing past her, making contact with her bottom or breast with his genitals or hands. On one occasion, while in his dressing room, the appellant exposed his penis to CS. VR was 18 years old when she worked on Hey Dad..!. On a couple of occasions the appellant had touched her near her breast. After the third occasion VR determined that the touching had not been accidental. She had to take clothes into the appellant's dressing room and sometimes she woke him from a nap. On one occasion the appellant was naked and she pulled up a sheet to cover him. After the third occasion when she found the appellant lying naked on his bed, VR reported the matter to her supervisor. The appellant's submissions In this Court the appellant acknowledges that the evidence of JP was admissible as tendency evidence on the trial of the counts involving SH and vice versa because each involved the surreptitious sexual molestation of a child in bed notwithstanding that another child was close by. He is critical of the trial judge and the Court of Criminal Appeal for the failure to articulate how the remaining tendency evidence gained its significant probative force. He asks how satisfaction that he exposed his penis to a nine year old child swimming between his legs makes it more probable that he encouraged EE, a 15 year old girl, to put her hand over his penis as they kissed. Conclusion The focus of the appellant's submission on the dissimilarity in the acts and the circumstances in which they occurred ignores the tendency that they were adduced to prove. The particular stated in the tendency notice, that the conduct occurred in the vicinity of another adult, served to highlight the appellant's willingness to act on his sexual interest in underage girls despite the evident danger of detection. It would have been more accurate to particularise the conduct as occurring in the vicinity of another person, since on some occasions it was another child who was in the vicinity. In EE's case, there was no evidence that any person was in the vicinity. Nonetheless, the evidence in support of that count was that the appellant encouraged EE to stimulate his penis as they stood kissing in the driveway of her family home, in circumstances in which EE was fearful that they would be seen. The evidence as a whole was capable of proving that the appellant was a person with a tendency to engage in sexually predatory conduct with underage girls as and when an opportunity presented itself in order to obtain fleeting gratification, notwithstanding the high risk of detection. An inclination on the part of a mature adult to engage in sexual conduct with underage girls and a willingness to act upon that inclination are unusual as a matter of ordinary human experience. Often, evidence of such an inclination will include evidence of grooming of potential victims so as to reveal a "pattern of conduct" or a "modus operandi" which would qualify the evidence as admissible at common law. But significant probative value may be demonstrated in other ways. In this case the tendency evidence showed that the unusual interactions which the appellant was alleged to have pursued involved courting a substantial risk of discovery by friends, family members, workmates or even casual passers‑by. This level of disinhibited disregard of the risk of discovery by other adults is even more unusual as a matter of ordinary human experience. The evidence might not be described as involving a pattern of conduct or modus operandi – for the reason that each alleged offence involved a high degree of opportunism; but to accept that that is so is not to accept that the evidence does no more than prove a disposition to commit crimes of the kind in question. Given the complainants' ages, consent was not an issue in any of the counts. It was the defence case on each count that the complainant had fabricated her account. That the tendency evidence did more than prove a disposition to commit crimes of the kind in question, and was actually of significant value as proof of his guilt of the offences charged, can be illustrated by hypothesising separate trials in respect of each complainant with the only evidence against the appellant being the evidence of the complainant. In each such case, the jury would be presented with a prosecution case inviting it to conclude beyond reasonable doubt that the appellant had engaged in behaviour towards the complainant which involved predatory sexual activity pursued by taking opportunistic advantage of a social or family or work occasion in circumstances in which the appellant courted a real risk of discovery by other adults. Considered in isolation, JP's evidence might have seemed inherently unlikely: the appellant, a family friend, at dinner in JP's home, absented himself from the party and came into her bedroom, and without making any attempt to ensure her silence, commenced to invasively sexually assault her while his daughter lay sleeping in the same bed. The jury might well be disinclined to accept JP's evidence as satisfying it, beyond a reasonable doubt, that the appellant had, in fact, engaged in conduct which was so much at odds with the jury's experience of the probabilities of ordinary human behaviour. Proof of the appellant's tendency to engage in sexual activity with underage girls opportunistically, notwithstanding the evident risk, was capable of removing a doubt which the brazenness of the appellant's conduct might otherwise have raised. The force of the tendency evidence as significantly probative of the appellant's guilt was not that it gave rise to a likelihood that the appellant, having offended once, was likely to offend again. Rather, its force was that, in the case of this individual accused, the complaint of misconduct on his part should not be rejected as unworthy of belief because it appeared improbable having regard to ordinary human experience. As explained above, there are two matters which must be considered. The first matter, involving the extent to which the evidence supports a tendency, does not require that the evidence be considered "by itself". In the words of s 97(1), the evidence of either "conduct" or "a tendency" can be used to determine the tendency relied upon by "having regard to other evidence adduced or to be adduced". In other words, evidence of a tendency might be weak by itself but its probative value can be assessed together with other evidence. This point can be illustrated by reference to an example given by the appellant in oral submissions, which was that 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". One problem with this comparison is that it ignores the fact that in relation to, for example, count 4, involving SH, the evidence of EE needed to be considered together with the evidence involving (i) counts 1 to 3 and counts 5 to 11, (ii) uncharged acts relating to the complainants SH, JP, AK and SM, and (iii) uncharged acts relating to the tendency witnesses VOD, AA and BB. Indeed, one of the appellant's concessions on this appeal was that the tendency evidence from counts 1 to 2 (JP) and 3 to 6 (SH) was cross-admissible. This evidence, which was conceded to be admissible, reinforced the other tendency evidence. When considered together, all the tendency evidence provided strong support to show the appellant's tendency to engage opportunistically in sexual activity with underage girls despite a high risk of detection. The probative value of the evidence of each complainant and of AA, BB and VOD lay in proof of the tendency to act on the sexual attraction to underage girls, notwithstanding the evident risks. The fact that the appellant expressed his sexual interest in underage girls in a variety of ways did not deprive proof of the tendency of its significant probative value. The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant. The Court of Criminal Appeal did not err in finding that the tendency evidence of each of the complainants and AA, BB and VOD met the condition imposed by s 97(1)(b) in relation to each count in the indictment. It will be recalled that the evidence of the workplace tendency witnesses was confined to proof of the offence charged in count 11. Relevantly, the trial judge assessed that the evidence of the workplace tendency witnesses was capable of establishing the appellant's tendency to expose his genitalia to females. His Honour considered that the workplace tendency witnesses' evidence had significant probative value to the determination of whether the appellant had acted as SM alleged by exposing his genitals to her. In circumstances in which SM's evidence was said to have been fabricated, this conclusion did not involve error. As earlier noted, the Court of Criminal Appeal's conclusions (i) that the probative value of the tendency evidence was not substantially outweighed by any prejudicial effect it may have on the appellant, and (ii) that the directions concerning the confined use to be made of the workplace tendency witnesses' evidence were sufficient, are not the subject of the appeal in this Court. Orders For these reasons there should be the following order. Appeal dismissed.