McPhillamy v The Queen [2018] HCA 52

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, KEANE, NETTLE AND EDELMAN JJ

RICHARD JOHN McPHILLAMY APPELLANT

AND

THE QUEEN RESPONDENT

McPhillamy v The Queen [2018] HCA 52 Date of Order: 9 August 2018 Date of Publication of Reasons: 8 November 2018 S121/2018

ORDER

1. Appeal allowed.

2. Set aside the orders of the New South Wales Court of Criminal Appeal and, in lieu thereof, order:

(a) the appeal to that Court be allowed; and

(b) there be a new trial.

On appeal from the Supreme Court of New South Wales

Representation

S J Odgers SC with S J Buchen for the appellant (instructed by Proctor & Associates)

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

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

CATCHWORDS

McPhillamy v The Queen

Evidence – Criminal trial – Sexual offences – Tendency evidence – Admissibility – Where appellant acolyte and complainant altar boy – Where appellant alleged to have followed complainant into church's public bathroom and committed offences – Where evidence that appellant, while working as an assistant housemaster, sexually offended against homesick boarding students who sought out appellant in private bedroom led as tendency evidence – Where tendency expressed as appellant having sexual interest in young teenage boys under his supervision and to act on that interest – Where tendency evidence of acts occurring ten years before offences charged – Where no evidence other than complainant's evidence that appellant had offended again in ten year period – Where tendency evidence unchallenged in cross-examination – Whether tendency evidence possessed significant probative value.

Words and phrases – "sexual interest", "significant probative value", "tendency evidence", "tendency expressed at a high level of generality", "tendency to act in a particular way", "tendency to have a particular state of mind".