New South Wales Court of Criminal Appeal CITATION : Regina v Harker [2004] NSWCCA 427 HEARING DATE(S) : 24/11/2004 JUDGMENT DATE : 2 December 2004 JUDGMENT OF : Santow JA at 1; Bell J at 2; Howie J at 3 DECISION : 1. The appeal against the judgment of Judge Puckeridge declining to direct that the tendency rule not apply to evidence of DE be allowed and the judgment be set aside 2. The Court directs that pursuant to s 100(1) the tendency rule not apply to the evidence contained in the statement of DE dated 15 November 2004 nothwithstanding the failure of the Crown to give notice under 2 97(1) on the following conditions: (a) the trial of charges against the respondent presently listed before Judge Puckeridge be adjourned to a date to be fixed by the District Court; (b) the Crown pay the costs of the proceedings before Judge Puckeridge relating to the trial and the costs of the adjournment. 3. The Crown appeal is otherwise dismissed. CATCHWORDS : Criminal Law - Evidence - Tendency Evidence - failure to give notice - whether trial judge should have dispensed with notice requirementrs - whether evidence ought to be rejected in exercise of discretion. Criminal Appeal Act 1912 - s 5F(3A) LEGISLATION CITED : Evidence Act 1995 - ss 38, 97(1), 99, 100(1), 101(2), 135, 137, 192, 195 Evidence Act Regulations - clause 6 AN (2000) 117 A Crim R 176 CASES CITED : R v Milakovic [2004] NSWCCA 199 R v Lockyer (1996) 89 A Crim R 457 R v Milton [2004] NSWCCA 195 PARTIES : Regina v Richard Harker FILE NUMBER(S) : CCA 2004/2990 COUNSEL : D. Arnott with J. Crespo - Crown R. Sutherland SC with R. Driels - Respondent SOLICITORS : S. Kavanagh - Crown Galloways, Lawyers - Respondent LOWER COURT District Court JURISDICTION : LOWER COURT 04/11/0630 FILE NUMBER(S) : LOWER COURT Puckeridge DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 2004/2990 SANTOW JA BELL J HOWIE J THURSDAY 2 DECEMBER 2004 REGINA v RICHARD HARKER Judgment 1 SANTOW JA: I agree with Howie J. 2 BELL J: I agree with Howie J. 3 HOWIE J: This is an appeal by the Crown brought pursuant to s 5F(3A) of the Criminal Appeal Act. The appeal relates to rulings made by his Honour Judge Puckeridge in the District Court in respect of evidence the Crown seeks to adduce in a trial listed for hearing before his Honour. The respondent has been indicted on 18 charges of what might be referred to as child sexual assault offences alleged to have been committed against the male complainant between January 1995 and December 1996. The complainant was at the relevant time between the ages of 12 and 14 years. The evidence, the subject of the appeal, is said by the Crown to be tendency evidence admissible under s 97(1) of the Evidence Act. 4 The Crown case is that the respondent engaged in homosexual intercourse and other indecent behaviour with the complainant whom he met in the early part of 1995. The complainant's account is that he was introduced to the respondent through a mutual friend who was at the time about two years older than the complainant. The respondent was at that time in his late twenties. The mutual friend is the witness whose evidence is at the heart of the present appeal and to whom I shall refer as DE. The complainant alleges that the respondent engaged in anal intercourse with him on numerous occasions and these and other sexual acts between the two occurred in circumstances where the respondent had on occasions shown the complainant pornographic videos and had administered to him some type of drug. Chronology 5 The respondent was first charged with offences arising from the complainant's allegations in December 2003. 6 On 7 January 2004 DE made a statement to police about events he said took place when he was in year 9 at school. That statement contained a broad allegation that over a period of 18 months the respondent had "forced me to have anal sex with him and he gave me drugs". DE was then aged 14 or 15 years. The statement also alleged that the witness was in the presence of both the respondent and the complainant when the respondent asked the complainant to expose his penis because the respondent wanted the witness to see that the complainant had no pubic hair. DE stated that the complainant had complied with this request. The statement also referred to an incident when DE and the complainant were in the respondent's motor vehicle. The respondent asked the complainant to give him a kiss. The complainant lent forward and the respondent kissed him on the lips. 7 This statement was not part of the police brief served upon the respondent in March 2004. The respondent's solicitors had, however, become aware of the allegations made by DE and wrote to the Director's office noting that the statement had not been served. The statement was served on the respondent on 15 March 2004. The solicitors for the respondent thereafter wrote to the Director's office indicating that they required the complainant and DE to be called at committal proceedings for cross-examination. The Solicitor for Public Prosecutions replied indicating that it would oppose that application. The respondent did not pursue the matter in the Local Court and no witnesses were examined in the committal proceedings. The respondent was committed for trial on 25 May 2004. 8 The respondent was arraigned in the District Court on the committal charges on 4 June 2004 and the matter listed for a trial on 2 August 2004. The Crown thereafter notified the respondent's legal representatives that it intended to substantially change the charges upon which the respondent was to stand trial, including adding counts for which the respondent had not been committed for trial. These changes resulted in a successful application for the trial date to be vacated. 9 On 5 August 2004 a notice, purportedly under s 99 of the Evidence Act, was served upon the respondent in respect of the statement of DE made on 7 January 2004. The respondent contended before this Court, although not before Judge Puckeridge, that the notice failed to accord with clause 6 of the Evidence Act Regulations in that it failed to set out in detail the substance of the evidence of DE to be relied upon as tendency evidence. 10 The next day, 6 August 2004, a new trial date was fixed for 15 November 2004. 11 On 15 November 2004, the trial date, the matter came before the Chief Judge of the District Court. On that day the respondent was served with a further statement made by DE on 15 November 2004. No notice was given by the Crown that it intended to rely upon the material in that statement as tendency evidence. Notwithstanding the late service of this statement on the defence, the respondent did not seek an adjournment of the trial and it was fixed for hearing before Judge Puckeridge on 16 November. 12 On that date his Honour, in advance of the empanelling of a jury, heard argument as to the admissibility of the evidence of DE as tendency evidence. Although defence counsel raised the issue of the failure of the Crown to give notice of its intention to rely upon the evidence in the later statement as tendency evidence, his Honour did not determine whether to allow the evidence under s 100(1) of the Evidence Act. Rather Judge Puckeridge determined that the evidence should not be admitted as tendency evidence on the basis that its prejudicial effect outweighed its probative value. See s 101(2) of the Evidence Act. 13 The Crown lodged an appeal to this Court under s 5F(3A) against that ruling. The matter came before this Court on 17 November 2004. The Court indicated that the appeal would be heard on 18 November and, that being the case, the respondent did not oppose a stay being granted of the trial before Judge Puckeridge to allow the appeal to be determined. 14 On 18 November 2004 this Court, differently constituted, struck out the Crown appeal without determining the matter on its merits. During the hearing of the appeal Senior Counsel for the respondent raised the fact that he had objected to the evidence on the basis that notice had not been given under s 99 of the Evidence Act and yet the trial judge had not determined under s 100(1) of the Evidence Act whether to allow the Crown to rely upon the evidence notwithstanding that failure to give notice. In that regard the Court was referred in passing to the decision of this Court in AN (2000) 117 A Crim R 176. It also became apparent to the Court during the hearing that there may have been some basis for the admissibility of, at least part of, the evidence of DE other than as tendency evidence and yet the trial judge had not been called upon to determine that question. As a result of these outstanding issues, the Crown conceded that it was inexpedient for the Court to determine the Crown appeal at that time and consented to the Court striking out the appeal. 15 The matter next came before Judge Puckeridge on 22 November 2004. On that occasion his Honour determined not to accede to an application by the Crown under s 100(1) to dispense with the notice requirement in respect of the evidence of DE set out in the statement of 15 November 2004. His Honour also refused in advance of the trial to consider whether any of the evidence might be admissible other than as tendency evidence. As a consequence of these determinations, his Honour refused to stay the trial. He stood the matter over until 11.30am the next day, 23 November 2004. 16 On 22 November the Crown filed another notice of appeal under s 5F(3A) and immediately sought a stay from this Court pending the determination of that appeal. This Court granted the stay on the basis that the appeal would be heard the next day, 24 November. On that date, after hearing full argument on the matter, the Court reserved its decision but continued the stay of the trial. Statutory provisions 17 In the light of this background it is now appropriate to set out the statutory provisions relevant to the issues before the Court. 18 Section 5F(3A) states: (3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case. 19 Section 97(1) of the Evidence Act provides: 97 The tendency rule (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, if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or (b) the court thinks that the evidence would not, 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. (2) Subsection (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party. 20 Section 99 of the Evidence Act states: 99 Requirements for notices Notices given under section 97 or 98 are to be given in accordance with any regulations or rules of court made for the purposes of this section. Clause 6 of the Evidence Act Regulations 2000 relevantly provides: (1) This clause is made for the purpose of section 99 of the Act. (2) A notice given under section 97(1) of the Act (relating to the tendency rule) must state: (a) the substance of the evidence of the kind referred to in that subsection that the party giving the notice intends to adduce, and (b) if that evidence consists of, or includes, evidence of the conduct of a person, particulars of: (i) the date, time, place and circumstances at or in which the conduct occurred, and (ii) the name of each person who saw, heard or otherwise perceived the conduct, or (iii) in a civil proceeding — the address of each person so named, so far as they are known to the notifying party. 21 Section 100 of the Evidence Act relevantly provides: 100 Court may dispense with notice requirements (1) The court may, on the application of a party, direct that the tendency rule is not to apply to particular tendency evidence despite the party's failure to give notice under section 97. (2)……… (3) The application may be made either before or after the time by which the party would, apart from this section, be required to give, or to have given, the notice. (4)………. (5) The direction: (a) is subject to such conditions (if any) as the court thinks fit, and (b) may be given either at or before the hearing. (6) Without limiting the court's power to impose conditions under this section, those conditions may include one or more of the following: (a) a condition that the party give notice of its intention to adduce the evidence to a specified party, or to each other party other than a specified party, (b) a condition that the party give such notice only in respect of specified tendency evidence, or all tendency evidence that the party intends to adduce other than specified tendency evidence, (c) a condition that the party give such notice only in respect of specified coincidence evidence, or all coincidence evidence that the party intends to adduce other than specified coincidence evidence. 22 Section 101(2) of the Evidence Act states: 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant. 23 Section 192 of the Evidence Act provides: 192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence. Preliminary objection to the Court's jurisdiction 24 The Crown's Notice of Appeal sets out the following as the judgments or orders against which it appeals: 1. The evidence of [DE] in a statement of 7 January 2004 and a further statement of 15 November 2004 was inadmissible as tendency evidence 2. The trial not be adjourned pending the filing of an appeal pursuant to section 5F(3A) of the Criminal Appeal Act 1912 3. The refusal to dispense with notice under s 97(1)(a) of the Evidence Act. 4. The refusal to rule on the evidence of [DE] on bases other than tendency. 5. The refusal to rule on whether the notice of tendency evidence notified to the respondent's lawyers on behalf of the appellant complied with regulation 6 of the evidence Regulation 2000. 25 The Crown does not pursue its appeal against orders 2 and 4 above and no argument was placed before the Court in respect of order 5. 26 It is apparent from the chronology above that the most recent ruling of his Honour was that of 21 November 2004 to refuse to dispense with the notice requirement of s 97(1) of the Evidence Act. Of course logically and legally this ruling should have been a step anterior to his Honour determining that the evidence was inadmissible under s 101 of the Evidence Act; a ruling that his Honour made on 16 November 2004. If the Crown could not show that His Honour's ruling under s 100(1) was erroneous such that it attracted the intervention of this Court, it would be fruitless for this Court to go on to deal with the earlier ruling of his Honour that the evidence was inadmissible by reason of s 101 of the Evidence Act. 27 Mr Sutherland SC, who appears with Mr Driels on behalf of the respondent, raised a preliminary argument as to this Court's jurisdiction to hear the appeal against the ruling made on 21 November 2004. It was submitted that the ruling refusing to dispense with the failure to give notice pursuant to s 100(1) of the Evidence Act, was not a "decision or ruling on the admissibility of evidence" for the purposes of s 5F(3A). Mr Sutherland argued that his Honour's ruling was akin to a decision to refuse leave to the Crown to rely upon the evidence and, in accordance with the decision of this Court in R v Milakovic [2004] NSWCCA 199, such a ruling did not fall within the terms of s 5F(3A). 28 Milakovic was an appeal by the Crown pursuant to s 5F(3A) in respect of a refusal by a trial judge to grant leave to the Crown under s 38 of the Evidence Act to cross-examine a Crown witness, Mr Bajic, on the basis that the witness was unfavourable to the Crown. By the time the appeal came on for hearing before this Court the trial judge had aborted the trial and discharged the jury because of the disruption to the trial caused by the appeal brought by the Crown. In dismissing the appeal, Grove J, with whom Dowd J agreed, after setting out the terms of s 5F(3A) stated: [9]…………….The question is whether a refusal of leave to cross examine pursuant to s38 of the Evidence Act is "a decision or ruling on the admissibility of evidence". It is common ground that there is no authority construing the scope of that expression as it appears in that provision. The Crown argument proceeded on the basis that the refusal of leave to cross examine Mr Bajic deprived the Crown of the ability to present to the jury the content of his prior statement. It was capable of evidencing the truth of what was contained: Adam v The Queen 2001 207 CLR 96 @ par 39(f). This contention merges the concept of a ruling with its potential consequences. The ruling related to an aspect of the conduct of the prosecution case, it was not a ruling on the admissibility of evidence. The circumstance that the Crown could identify the evidence that it wished to adduce did not alter the nature of the ruling. 29 Sperling J, while indicating his broad agreement with the reasons of Grove J for dismissing the Crown appeal, pointed out the context in which s 38 appears in the Evidence Act. After referring to the relevant chapter headings of the Act, his Honour stated: [29] A decision giving leave pursuant to s38 to cross-examine the party's own witness is not a decision as to whether certain evidence is admissible. It is, as the heading of Ch 2 suggests, a decision relating to the adducing of evidence, in contrast with the admissibility of evidence to which Ch 3 relates. More particularly, as the heading of Div 4 of Pt 2.1 of Ch 2 suggests, it is a decision concerning the way in which a witness may be questioned. [30] A decision to grant leave pursuant to s38 may result in certain evidence being adduced which would otherwise not be adduced. That, however, does not make the decision whether to grant leave a decision or ruling on the admissibility of the evidence. 30 The application under s 100(1) was dealt with before Judge Puckeridge on the basis that it was an application by the Crown for leave to adduce the evidence despite the failure of the Crown to give reasonable notice under s 97(1). In truth it was not a case of leave being sought or granted. The power given to the court under s 100(1) is to "direct that the tendency rule is not to apply to particular tendency evidence". The tendency rule in effect states, and I summarise the provisions of s 97 set out above, that certain evidence is not admissible to prove a particular fact where one of two circumstances exist; either (a) where reasonable notice has not been given by the party seeking to rely upon the evidence to prove that fact or (b) the court thinks that the evidence would not have significant probative value. A direction under s 100(1), that the tendency rule not apply, is in effect a ruling that the evidence is admissible notwithstanding that the Crown failed to comply with s 97(1)(a). Similarly a refusal to give that direction is in effect a ruling that the evidence is inadmissible because the tendency rule applies to it. 31 It seems to me that the situation is not analogous to that considered by the Court in Milakovic. The ruling under s 100(1) is a "decision or a ruling on the admissibility of evidence" in both a technical and a practical sense. A ruling in favour of the Crown meant that the evidence was admissible not withstanding s 97(1). It was not, as in Milakovic, a ruling "related to an aspect of the conduct of the prosecution case" to use the words of Grove J. I note in passing that s 100 is contained in Chapter 3 of the Act, that Chapter being entitled "Admissibility of Evidence". 32 In any event it seems that the legislature had in mind that the Crown could appeal against a determination in respect of the admissibility of evidence that was not a ruling on admissibility. It is unnecessary for present purposes to determine the scope of the matters that might fall within the scope of s 5F(3A) but it seems clear to me that the legislature wished to avoid the section being restricted to rulings on the admissibility of evidence strictly defined. In my view a determination under s 100(1) not to dispense with the notice provisions in relation to tendency evidence is at least a "decision…on the admissibility of evidence" and thus within the scope of s 5F(3A). 33 I, therefore, reject the argument that s 5F(3A) does not apply to the determination made by Judge Puckeridge not to dispense with the notice requirement under s 97(1). The determination under s 100(1) 34 As I have already indicated, Judge Puckeridge dealt with the application under s 100(1) on the basis that the Crown was seeking leave to rely upon the evidence in the absence of notice. His Honour may be forgiven for that view because there was some looseness of expression in this Court on 18 November 2004, a Court of which I was a member, when the matter was discussed with counsel in a somewhat informal manner. Believing that it was a case of leave being granted or refused, Judge Puckeridge purported to apply s 192 of the Evidence Act when determining whether leave should be granted. Although the Crown was not seeking leave under s 100(1), it was seeking a direction that the tendency rule not apply. Section 192 applies not only to cases where leave is required but also to provisions where the court may give "any leave, permission or direction". Therefore, s 192 did apply and his Honour was required to give consideration to those matters specified in s 192(2) when determining the application before him. 35 However, the two most important considerations in determining the outcome of that application in the present case was, firstly, the probative value of the evidence and, secondly, any prejudice caused to the respondent by the failure of the Crown to give reasonable notice in accordance with s 97(1)(a). It should be noted that the application under s 100(1) is concerned only with a determination as to whether the tendency rule should apply to the evidence and not whether the evidence is otherwise admissible. If the Crown were successful in that application, it would not necessarily follow that the Crown would be permitted to adduce the evidence: s 101 would still have to be considered. There is a two-step approach to admitting tendency evidence at the behest of the Crown in criminal proceedings. A successful application under s 100(1) only completes the first step; the admissibility of the evidence under s 97(1). 36 In the present case Judge Puckeridge had already in his judgment of 16 November 2004 determined that evidence in accordance with the statement of 15 November was to be rejected under s 101(2). But his Honour was being required in considering the application under s 100(1) to place himself in the position he would have been in before making the determination that the evidence was inadmissible by reason of s 101. This might appear to be a highly legalistic exercise but it was the result of defence counsel not pressing his objection to the failure of the Crown to give notice when the matter was first argued before his Honour. Because defence counsel had taken the point before this Court when the matter was for hearing on the first Crown appeal, and having insisted that the objection had not been waived but was to be resolved by his Honour, Judge Puckeridge was obliged to deal with that application on a principled approach notwithstanding the ultimate view he had formed about the admissibility of the evidence. 37 Of course, if it were the case that his Honour's initial determination as to the admissibility of the evidence could not be impugned, it might be an exercise in futility for this Court to entertain an appeal by the Crown against his Honour's refusal to make the determination under s 100(1). But unfortunately I am of the opinion that his Honour's earlier judgement as to the inadmissibility of the evidence on an application of s 101(2) cannot be supported notwithstanding that it was in effect the exercise of a discretion and one with which this Court would not lightly interfere. 38 It is necessary, therefore, that this Court review his Honour's reasons for refusing to dispense with the notice requirement for the evidence contained in the statement of DE of 15 November 2004. I should make it clear that this Court understands the pressure in which his Honour was called upon to decide what were not simple questions thrown up by the application and that his Honour was forced to deliver an ex tempore judgement under pressure of immediate review by this Court. I also acknowledge that unfortunately trial judges rarely get the assistance provided to this Court by written submissions and argument in an atmosphere less pressured by the exigencies of the District Court in which trial judges endeavour to bring on a criminal trial of serious criminal charges as expeditiously as possible while doing fairness to the parties involved. 39 His Honour appears to have accepted that some at least of the evidence was sufficiently probative to pass the test of admissibility under s 97(1). His Honour said during the course of his judgment of 22 November on the application under s 100(1): I accept, as I stated in my ruling of 16 November 2004 that the evidence sought to be adduced is of importance in relation to what leave is sought in respect of" I understand by this that his Honour found that the evidence was sufficiently probative for the purpose of s 97(1)(b). I presume the reference to the evidence being "of importance" is a reference to the test of "significant probative value" applied in R v Lockyer (1996) 89 A Crim R 457. But even if it were, as Mr Sutherland suggested, an acknowledgment of the importance of the evidence to the Crown case for the purposes of s 192, it amounts in effect to an acceptance that the evidence was, disregarding the notice requirement, admissible under s 97(1). 40 With respect that is not an unsurprising finding. On its face the evidence is clearly of significant probative value in proving the Crown case against the respondent: the difficulty comes in determining whether it should be excluded under s 101(2). 41 But if it be the case that his Honour accepted that the evidence had sufficient probative value under s 97(1)(b), the real issue to be resolved under the application pursuant to s 100(1) was whether reliance upon the evidence would be prejudicial to the accused; not in the sense of unfairly prejudicial under s 101, but in the more general sense that the respondent would not be in a position to meet the evidence because of the failure to give reasonable notice. In that regard it should be noted that defence counsel did not seek an adjournment when served with the statement on 15 February although he had the opportunity to make that application. The ruling of 22 November cannot stand 42 Clearly in determining whether to grant the application his Honour had to consider the practical difficulties for the respondent meeting the evidence of DE caused by the failure of the Crown to give reasonable notice of its intention to rely upon it. This required his Honour, as best as he was able, to investigate the need of the respondent to pursue lines of inquiry that might show DE to have been at least an unreliable witness. His Honour clearly turned his mind to the issue of prejudice to the respondent caused by the failure to give notice but his reasons touch only briefly upon that issue and, with respect, do not address at all how that prejudice might be addressed other than by refusing the application. 43 Further, his Honour apparently took into account what appears to me to have been an irrelevant consideration: the prejudice to the respondent caused by the fact that DE was attempting to recall events 8 or 9 years earlier. His Honour stated: The allegations as referred to by [DE] relate to events in 1995 and 1996. The length of time that has elapsed of itself would bring about unfairness so far as the accused is concerned. 44 While I would readily accept that the respondent is prejudiced in his ability to defend himself because of the delay that has occurred since the events about which DE would give evidence, that is not a prejudice caused by the failure of the Crown to give reasonable notice of its intention to rely upon his evidence and was not a matter that could be considered on the application. The earliest the Crown could have given notice was shortly after January 2004 when DE made his first statement. Any prejudice resulting from the fact that DE was to give evidence about matters occurring many years earlier was to be addressed by directions and warnings to a jury and not by rejection of the evidence if it were otherwise relevant and admissible. It was not, therefore, a matter that could be taken into account when determining an application under s 100(1). 45 But from his reasons it seems clear that Judge Puckeridge determined the application against the Crown principally on the basis of applying s 137 of the Evidence Act, his Honour having determined that the probative value of the evidence was outweighed by unfair prejudice to the respondent that would be occasioned by its admission. His Honour seems to have been persuaded from his understanding of a passage in Odgers Uniform Evidence Act in the annotations to s 195 that "the discretion to grant leave overlaps the Court's general discretion to exclude evidence under s 135 and in criminal cases under s 137". Whatever might be the validity of the proposition in general, I believe that it misled his Honour when dealing with the application in two ways: firstly, it caused his Honour to misunderstand the issue that was before him, and, secondly, it introduced a consideration of s 137 into his Honour's reasoning when dealing with an application concerning tendency evidence. 46 It seems to me with respect that his Honour became distracted by a consideration of s 137 and erred in rejecting the application on the basis that the evidence would in any event be rejected under that section. As I have indicated, his Honour was concerned with an application for a direction that the tendency rule not apply to the evidence and in the circumstances of this particular case his principal concern was whether the failure to give notice had prejudiced the respondent and whether that prejudice could be addressed if the direction sought were given. I doubt that s 137 has any work to do where s 101(2) applies. I find it difficult to imagine a case where tendency evidence would be admitted notwithstanding s 101(2) but might be rejected under s 137. 47 In any event his Honour simply concludes that the evidence would be rejected under s 137 without explaining what was unfairly prejudicial about the evidence and why the prejudice was such that it mandated the rejection of the evidence rather than simply the giving of directions or warnings to the jury. With respect, adequate reasons for the rejection of evidence will hardly be found in a simple statement that s 137 applies or in a bare finding that the probative value of the evidence is outweighed by the unfairly prejudicial effect of the evidence. The reasons for judgment must make clear what the unfair prejudice is and why it is of such a kind that the evidence must be rejected despite its probative value. The ruling of 16 November cannot stand 48 I accept that it might appear to be unduly technical, or even unfair to his Honour, to consider the reasons given on 22 November in isolation and without bearing in mind the reasons given by his Honour for rejecting the evidence on 16 November. It might have been the case that this Court would refuse to intervene in respect of the ruling to dispense with the requirement for notice under s 97(1) if it were apparent that his Honour had properly exercised his discretion in rejecting the evidence when making the earlier ruling on the admissibility of the tendency evidence. It would also be an exercise in futility for this Court to allow the Crown appeal in respect of the later ruling if the Court were able to come to the view that no court properly exercising its discretion under s 101(2) would admit the evidence. However, I am satisfied that his Honour erred in the purported exercise of his discretion to reject the evidence under s 101(2) and I am not persuaded that the evidence was of such little probative value that it must be outweighed by its prejudicial effect. 49 The Crown case is in effect that the respondent engaged in a sexual relationship with the complainant over the period stated in the charges in the indictment. It is alleged that during the course of that relationship the respondent performed fellatio upon the complainant and had anal intercourse with him on a number of occasions. It is also alleged that on at least one occasion the respondent insert his fingers into the complainant's anus and on another occasion a dildo. The complainant alleges that the respondent incited him to perform similar activity upon the respondent. On at least two occasions the complainant alleges that the respondent gave him some type of drug; once a substance that the respondent called "amyl nitrate" and on another occasion a yellow tablet that the respondent said was "an E". The complainant also alleges that the respondent showed him pornographic videos on occasions. 50 The Crown submits that there are a number of striking similarities between the conduct alleged by the complainant and that alleged by DE in his statements. There is no evidence to suggest that the complainant and DE had the opportunity of concocting their versions of events together. According to the statement of DE he had not seen the complainant for a period of about 10 years before he made his statement. He also states that he was unaware of whether the respondent was having a sexual relationship with the complainant at the relevant time. 51 The Crown argues that the probative value of the evidence of DE transcends the mere fact that the respondent was having a sexual relationship with another young man at about the time he was in a sexual relationship with the complainant. The Crown relies upon what it says are a number of similarities between the accounts given by the complainant and DE in the way the respondent acted toward them and that this similarity in conduct shows that the respondent had a tendency to act in a particular way to young boys at the time the complainant alleges that he was sexually assaulted by him. It is unnecessary to set out in detail the allegations made by DE that are similar to those made by the complainant, but in my view, when considered as a whole, there is sufficient similarity between the accounts of DE and the complainant for the evidence of DE to satisfy the test of admissibility under s 97(2)(b). 52 Clearly the simple fact, if it were the fact, that the respondent was indecently assaulting DE or engaging in homosexual intercourse with him would not be admissible as proof that he was engaged in similar conduct with the complainant. As Hidden J observed in R v Milton [2004] NSWCCA 195: 31……………..True it is that evidence that the appellant had sexual contact with two boys in their early teens would not, of itself, be sufficient. However, that is not the only common thread in their evidence. What emerges from the testimony of each of them is an attempt by the appellant to foster a relationship with them conducive to sexual contact despite their youth and immaturity. This arises not just from his employing each of them. It is to be found in his encouraging them to drink and use drugs in a manner entirely inappropriate for boys of their age, and in his efforts, by word and deed, to loosen their natural sexual inhibitions. It is also to be noted that, on the account of both complainants, he was prepared to impose his will upon them in the teeth of their resistance. 53 Milton was a case where there was a joint trial of the allegations made by two different complainants. It was argued on appeal that the evidence of one complainant would not have been admissible as tendency evidence in a trial involving the other complainant and, therefore, there should have been separate trials. This Court rejected the argument holding that the evidence of the conduct of the appellant to each of the complainants was sufficiently similar and sufficiently connected that it was open to the trial judge to admit the evidence of one on the trial involving the other. In reaching that conclusion Hidden J reviewed the common law authorities concerning the admissibility of propensity evidence of the kind before the Court and there is no need for this Court to examine those authorities again in order to determine the present appeal. 54 It was submitted to this Court that the evidence in the present case is not as probative as that in Milton. But it seems to me to be arguably more probative in the present case. In Milton the Crown case was that the relationship between the appellant and one of the complainants took place immediately after the conclusion of the relationship between the appellant and the other complainant. In the present case the Crown alleges that the sexual relationship between the complainant and the respondent was taking place at about the same time as that between the respondent and DE. On the Crown case there were not only similarities between the two relationships but they were to a degree interrelated or at least overlapping. DE, who at the time was in a sexual relationship with the respondent, had introduced the complainant to the respondent. 55 Judge Puckeridge appears to have appreciated that, at least generally speaking, the evidence of DE was significantly probative of the allegations made by the complainant but held that the evidence should be rejected under s 101(2). However, his Honour's reasons for coming to that view cannot withstand scrutiny. His Honour approached the matter by taking each of the allegations made by DE separately and determining whether that particular allegation had any probative value and, if it did, whether the probative value was outweighed by its prejudicial effect. With respect that was not a proper approach in a case where the Crown was relying upon the cumulative effect of the allegations made by DE. 56 Further, his Honour appears to have taken into account a number of irrelevant considerations in determining to exclude the evidence. For example, his Honour took had regard to the fact that DE was alleging criminal acts by the respondent for which the respondent had never been charged or stood trial. His Honour thought that this was "a particularly significant matter". Although the fact that DE was alleging serious criminal acts committed by the respondent was a relevant matter in assessing the prejudice arising from the evidence, the fact that the respondent had never been charged with them, or stood trial in respect of them, was irrelevant. His Honour went on: In the circumstances of this case, particularly as the accused has not been charged with any offence against [DE] the Court must bear in mind that there is a real risk that a jury might use the evidence of [DE] as positive proof of the accused's guilt on the twenty-three on which he is indicted. 57 With respect, I do not understand the import of this passage of his Honour's reasoning and it seems to me that it reveals possible confusion in his Honour's mind about the significance of tendency evidence. The simple fact is that tendency evidence is placed before the jury as evidence tending to prove the guilt of the accused. The jury are asked to reason that, because the accused acted in a particular way on some other occasion or occasions, he or she must have acted in the same way on another occasion. In the present case, the Crown wishes to adduce the evidence in order to argue that because the respondent acted in a particular way towards DE, he must have acted in the same way towards the complainant. The jury is entitled to use tendency evidence as "positive proof" of the accused's guilt where it is admitted after a consideration of s 101(2). But the use to be made of the evidence has nothing to do with whether the accused has been charged with any offence arising from the conduct that is the subject of the evidence. 58 Finally, his Honour in his judgment on the admissibility of the evidence failed, in my opinion, to give adequate reasons for his determination that the probative value of the evidence was outweighed by its prejudicial effect. It is, with respect, not enough to repeat, as some kind of mantra, words taken from s 101(2) without explaining how it is that the evidence is so prejudicial that it ought to be rejected in the exercise of discretion once it is accepted that the evidence is admissible under s 97(1). I am quite unable from an examination of the whole of his Honour's reasons to find that any proper evaluation of the evidence based upon the weighing of its probative value as against its prejudicial effect took place. 59 I am of the opinion, therefore, that the Crown's appeal should succeed in respect of the determination by his Honour under s 100(1) not to dispense with the notice requirement. During the course of the hearing the Court raised with the parities possible orders that the Court might make if it were minded to allow the appeal. The Crown indicated that it would say nothing in opposition to an order dispensing with notice on condition that the trial be adjourned and that the Crown pay the costs of the adjournment including the respondent's costs of the proceedings before Judge Puckeridge. Counsel for the respondent also indicated that he did not want to be heard in respect of such an order being made if the Court determined, contrary to his submissions, to allow the appeal. 60 I do not believe that the Court should indicate how the discretion arising under s 101(2) should be exercised if, and when, the matters comes back before the District Court for hearing as to the admissibility of the evidence of DE. Of course on that occasion the material before the trial judge might be different to that which was before Judge Puckeridge, particularly if DE is called to give evidence on a Basha inquiry and is cross-examined on behalf of the respondent. Further, the nature of the discretion under s 101(2) is such that reasonable minds might differ on how it should be exercised in any particular case: Milton at [33]. It could not be said that it is not open for a trial judge to exercise the discretion under s 101(2) to reject the evidence, provided of course that the discretion is exercised in a principled way and adequate reasons are given. 61 Judge Puckeridge for reasons that he did not disclose refused to consider the admissibility of parts of DE's statement on a basis other than as tendency evidence. Of course such a decision was within his Honour's discretion but I have difficulty in understanding why such a ruling should be postponed until after the trial commences. Part of the evidence that DE would give is clearly admissible as proving the relationship between the complainant and the respondent, if that is a matter in issue at the trial. Mr Sutherland candidly informed the Court that he would have difficulty arguing the contrary. I do not understand how any evidence that might be given by the complainant or any other witness in the Crown case could affect the admissibility of that part of the evidence. For example, the failure of the complainant to give evidence of those facts could not deprive the evidence of its probative value or otherwise lead to the rejection of the evidence. Even if the complainant were to deny that any such incident occurred, it would not follow that DE could not give evidence of those events in accordance with his statement. On the material that is available to this Court, I cannot see any basis upon which that evidence might be rejected in the exercise of discretion and I do not see how that situation could change during the hearing of evidence in the Crown case. 62 Before concluding this judgment, I cannot avoid censuring the Crown for the conduct of this prosecution, not just in the District Court but also in proceedings in the Local Court prior to committal. Had it been the case that the Crown needed leave to bring this appeal, for my part it would have been hard pressed to convince the Court that leave should be granted. This is another instance of this Court being called upon to intervene at the behest of the Crown at the eleventh hour with a trial about to commence or underway in circumstances where the Crown has to a very large part been the author of the problem that it seeks to redress. It is unfair to the trial judge, the accused and other litigants before this Court that the Crown should appeal against a ruling in circumstances of urgency because of its own failure to properly prepare the matter for trial well before the hearing date. I do not understand how this matter was allowed to reach the stage where a ruling on such potentially significant evidence in a trial of such serious charges had to be made on the day listed for the commencement of the trial. 63 I propose the following orders: 1 The appeal against the judgment of Judge Puckeridge declining to direct that the tendency rule not apply to the evidence of DE be allowed and the judgment be set aside. 2. The Court directs that pursuant to s 100(1) the tendency rule not apply to the evidence contained in the statement of DE dated 15 November 2004 notwithstanding the failure of the Crown to give notice under s 97(1) on the following conditions: (a) the trial of charges against the respondent presently listed before Judge Puckeridge be adjourned to a date to be fixed by the District Court; (b) the Crown pay the costs of the proceedings before Judge Puckeridge relating to the trial and the costs of the adjournment. 3. The Crown appeal is otherwise dismissed. ********** Last Modified: 12/09/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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