Reported Decision : 156 A Crim R 308 New South Wales Court of Criminal Appeal CITATION: R v Fletcher [2005] NSWCCA 338 HEARING DATE(S): 24 May 2005, 25 May 2005 JUDGMENT DATE: 23 September 2005 JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 2; Rothman J at 75 DECISION: By Majority (Rothman J dissenting):; Appeal dismissed CATCHWORDS: Criminal Law - Evidence - Prior Conduct - Tendency and Coincidence - Relevance - Principles to apply - Material to be considered - Time at which Judgment to be made - Exercise of discretion by trial judge - Common Law as a guide to Evidence Act - Weighing of probative value and prejudicial effect Crimes Act 1900, s.61E, s.78K LEGISLATION CITED: Criminal Appeal Act 1912, 2.5F(3A), s.6 Evidence Act 1995, s.55, s.56, s.97, s.98, s.101, s.102, s.135, s.137, Dictionary Adam v R (2001) 207 CLR 96A .E. Terry's Motors Ltd v Rinder [1948] SASR 167 R v AH (1997) 42 NSWLR 702 Bell v Thompson (1934) 34 SR 431 Re: Bonny [1986] 2 Qd. R 80 Bonnard v London General Omnibus (1921) 38 RPC 1 Chatsworth Investments Ltd v Amoco (UK) Ltd [1968] 1 Ch 665 (C.A) Commissioner for Superannuation v Scott (1987) 13 FCR 404 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 DPP v Boardman [1975] AC 421 DPP v Kilbourne [1973] AC 729 R v Ellis [2003] NSWCCA 319; 58 NSWLR 700; 144 A Crim R 1Fabre v Arenales (1992) 27 NSWLR 437 Fleming v Hutchinson; Conroy v Veit (1991) 66 ALJR 211 R v Fordham (1997) 98 A Crim R 359 Harriman v The Queen (1989) 167 CLR 590 R v Harker [2004] NSWCCA 427, unreported, 2 December 2004 CASES CITED: Henry Burford [1932] 2 Ch 122 (C.A) Hoch v The Queen [1988] HCA 50; 165 CLR 292 House v the King [1936] HCA 40; 55 CLR 499 Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51 Jones v Dunkel (1959) 101 CLR 298 R v Lock (1997) 91 A Crim R 356 R v Lockyer (1996) 89 A Crim R 457 Marc A Hammond Pty Ltd v Papa Carmine Pty Ltd (1977) 28 FLR 160 Mickelberg v The Queen [1989] HCA 35; 167 CLR 259 R v Milton [2004] NSWCCA 195, unreported, 18 June 2004 Re: Migliorini; ex parte Silk Brothers (1974) 22 FLR 491 Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163 R v Nassif [2004] NSWCCA 443, unreported, 16 December 2004 Noor Mohamed v The King [1949] AC 182 O'Brien Glass Industries Limited v Cool and Sons Pty Ltd t/a Wagga Windscreen Service (1983) 77 FLR 441 Palser v Grinling [1948] AC 291 Pfenning v The Queen (1995) 182 CLR 461 Tillmanns Butcheries Pty Ltd v AMIEU (1979) 42 FLR 331 Crown - Regina PARTIES: Applicant - James Patrick Fletcher FILE NUMBER(S): CCA 2005/521 Crown - Mr D Frearson SC COUNSEL: Appellant - Mr I Barker QC & Mr S Austin Crown - Mr S Kavanagh SOLICITORS: Appellant - Mr G Murray LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/31/0056 LOWER COURT JUDICIAL OFFICER: Armitage QC DCJ - 1 - IN THE COURT OF CRIMINAL APPEAL 2005/521 McClellan CJ at CL Simpson J Rothman J 23 September 2005 R v James Patrick FLETCHER Judgment 1 McCLELLAN CJ at CL: I agree with Simpson J 2 SIMPSON J: I have read in draft the judgment of Rothman J. I have reached a different conclusion. Although I do not propose to recite the whole of the background facts and circumstances, it will be convenient to the reader if I repeat some of what has been recounted by his Honour. 3 The appellant was charged with nine counts. After amendments permitted by the trial judge there were eight counts of homosexual intercourse with a male of or above the age of 10 years and under the age of 18 years, and one count of committing an act of indecency towards a person under 16 years of age, and under the authority of the appellant. The eight counts of homosexual intercourse were brought under the now repealed s78K of the Crimes Act 1900, and the act of indecency charge was brought under the also now repealed s61E(2A) of the same Act. All offences were alleged to have been committed during either 1990 or 1991. 4 A good deal of evidence in the Crown case was not in dispute. The complainant was born on 28 June 1976. During 1990 he turned 14; in 1991, 15. His family lived in Clarence Town, apparently in or near the Hunter Valley. It was a devout Catholic family and its members were very much involved in Roman Catholic Church activities. The complainant was the eldest of four brothers in the family. In the late 1980s the appellant was appointed as parish priest for Dungog, a parish that encompassed Clarence Town. He appears earlier to have occupied the position of parish priest in various towns in the district. The complainant's family developed a close friendship with the appellant who became a regular visitor at the family home. The complainant served as an altar boy in the church and had done so since prior to the appellant's appointment. In 1989 the complainant began High School in Maitland. On occasions the appellant drove the complainant home from school. 5 The specific allegations made by the complainant against the appellant may be summarised as follows, in so far as the evidence of dates and times permits, in chronological order: Count 1: Between 15 December 1989 and 31 January 1990, the appellant, while driving the complainant from Clarence Town to Dungog for altar boy duties, questioned the complainant in a sexually explicit way and then masturbated. (This was the act of indecency count.) Count 2: Between 16 and 31 March 1990 the appellant drove the complainant to the Walka Waterworks, invited the complainant to make him (the appellant) orgasm, and pulled the complainant towards him. The complainant performed fellatio upon the appellant. Count 3: Two or three weeks later, the appellant behaved in a manner similar or identical to that outlined in relation to Count 2, and at the same place. Count 4: During June of 1990 the appellant drove the complainant to Paterson where the appellant performed fellatio upon the complainant. He began fondling the complainant's penis and genitals, with his hands on the inside of the complainant's pants, and began sucking the complainant's penis but failed to provoke an erection. Count 5: On the same occasion the appellant stated his intention of inserting his penis in the complainant's anus and did so, thrusting to achieve penetration. He ejaculated. Count 6: During August 1990 the appellant drove the complainant to the Walka Waterworks where the complainant performed fellatio upon the appellant. Count 7: In November or December of 1990 the complainant attended his grandfather's eightieth birthday party at Adamstown. The appellant drove past and the complainant left the party and joined the appellant in his car. The appellant drove to a local Catholic High School located in Fletcher Street. The appellant suggested (by reference to the coincidence of his name and the name of the street) that they have sex in that street. After fondling the complainant, the appellant removed the complainant's pants and penetrated him anally. Count 8: Sometime during 1991, while the complainant's parents were away on holiday, the complainant met the appellant near a river. They had anal intercourse at the back of the vehicle. Count 9: On a date towards the end of 1991 the complainant met the appellant near a river and invited him to have anal intercourse. They did so, leaning against the back of the car. For reasons which will become apparent, it is worth drawing particular attention here to the nature of the allegations. They were of three acts of fellatio by the complainant on the appellant, four acts of anal intercourse by the appellant on the complainant, and one act of fellatio by the appellant on the complainant, as well as the act of indecency charged in the first count. 6 The above paraphrase of the prosecution case against the appellant is drawn from the evidence given in the trial by the complainant, and, in some respects, by other members of his family. The complainant also gave evidence that, on occasions, the appellant engaged him in conversation with a sexual content; that the appellant repeatedly told him not to reveal their activities to anybody else, saying that what had happened was "our secret"; that, if the complainant did reveal their activities, he would not be believed because the appellant was a priest; that what they were doing was normal; and that the appellant threatened, if the complainant refused to cooperate, to involve his younger brothers in the same kind of activity. He gave evidence that, on the occasion of the first offence, when he and the appellant were travelling in the appellant's car, the appellant asked if the complainant had ever experienced an erection, and if he had ever masturbated. 7 Prior to trial, on 27 September 2004, the Director of Public Prosecutions ("the DPP") gave notices of his intention to adduce evidence of tendency under s97 of the Evidence Act 1995 ("the Act") and of coincidence under s98 of the Act. (It is unnecessary at this stage to say any more about s98.) 8 "Tendency evidence" is defined in the Dictionary to the Act as: "evidence of a kind referred to in subsection 97(1) that a party seeks to have adduced for the purpose referred to in that subsection." 9 S97 is, relevantly, in the following terms: " The tendency rule (1) Evidence of the ... 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) ..." 10 In relation to criminal proceedings, the application of s97 is modified by the provisions of s101, which are, relevantly, in the following terms: "(1) ... (2) Tendency 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) ... (4) ..." 11 Relevantly to the application of s97, "probative value" is defined in the Dictionary as: "... the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 12 There was no issue that the tendency evidence notice complied with the requirements of the Act. It was, indeed, very extensive. The DPP notified the appellant's legal representatives that he proposed to rely upon statements of GG, as well as of eight other witnesses (one of whom was the complainant). The "tendency evidence" was said to go to: "... grooming"; " ... inappropriate sexual behaviour with young boys"; " ... inappropriate sexual contact". 13 The statements of the proposed tendency and coincidence witnesses were attached to the notices. Except for one, that of GG, they have not been produced to this court. However, the notices were accompanied by an extremely comprehensive series of schedules, identifying plainly the manner in which the DPP proposed to use the evidence. This document was put before this court on behalf of the appellant. It contained what may be taken to be verbatim extracts from the statements. 14 Put shortly, the statements documented what could reasonably be termed a pattern of behaviour attributed to the appellant. This included befriending local Catholic families, particularly those with young sons, and involving himself in the lives of the families. In some cases favouritism was directed to one family member, a young male. There was a good deal of evidence of sexually explicit, and what may, by many, be thought to be inappropriate, conversations with the young men. This included questioning them about their sexual activity (or lack of it), telling risqué jokes, showing a pornographic video, involving the boys in sexually overt conduct falling short of intercourse, and possession of pornographic magazines. 15 Statements of three men contained accounts of what his Honour termed "low grade sexual activity" on the part of the appellant, directed towards them as adolescents. Predominantly, the conduct alleged was groping the boys in the groin area outside their clothing. 16 There was also a lengthy statement of GG. 17 That statement contained evidence to the following effect. GG was born in about 1974. His family were members of the local Catholic Church. GG met the appellant when he was about eight, and his family became friendly with the appellant. In about 1982 or 1983 GG was accepted as an altar boy, and his friendship with the appellant became very close. It became common for GG to stay at the presbytery where the appellant lived. In his statement GG recounted a large number of incidents of sexual misconduct on the part of the appellant. The first of these occurred at a church in Maitland, when GG was aged about nine years. The appellant, who was robing, opened and closed the front of his robe (over his trousers) as though exposing himself and asked GG if he wanted to "have a look". Thereafter, the nature of the sexual misconduct escalated. On one occasion in 1983, when GG was staying with the appellant, the appellant invited him into his room, and his bed. He kissed GG. GG could tell that the appellant was experiencing an erection. This kind of behaviour was repeated three or four times over the ensuing months. On each occasion the appellant told GG that he was not to tell anybody, that what had happened was "our secret" and "between us". 18 From the time GG was 10 or 12 the appellant began using expletives and telling risqué jokes. In about April 1984, when GG was staying with the appellant during school holidays, the appellant fondled GG's genitals from outside his clothing. 19 GG recounted another incident which he said took place in 1986. He recalled that the two were travelling together in the appellant's car, when the appellant asked him: "Have you started wanking yet?" The appellant then began masturbating. 20 GG related other instances of sexually oriented questioning by the appellant. 21 On another occasion, in the second half of 1986, and after GG had retired to bed, the appellant entered his room and cuddled and kissed him. He asked some sexually explicit questions, pulled down GG's pyjama pants, and took GG's penis in his own mouth. The appellant performed oral sex on GG for a few minutes, until GG ejaculated. He then told GG that what had happened was normal, that "everyone does this", but that nobody talked about it, that it had to remain "our secret"; it had to "stay between us", and that GG was not to tell his parents. 22 Another incident, according to GG's statement, occurred early in 1987. The appellant invited GG to stay at the presbytery and he did so. What happened was virtually a repeat of the 1986 incident. There were further sexually explicit questions, followed by the appellant kissing GG and masturbating him until GG's penis was erect. He again performed oral sex upon GG, until GG ejaculated. 23 GG must have been about 12 and 13 at the time of the two last mentioned incidents. 24 The tendency evidence notice spelled out what the DPP sought to establish was the "tendency" proposed to be established by the evidence as: "The Tendency of the accused to behave in the following ways ... 1. Meet the family of the subject child through his position in the church ... 2. Involve the family of the subject child in the church ... 3. Develop a special relationship with the family of the subject child ... 4. Develop a special relationship with the children of the family ... 5. Develop a special relationship – over and above that for the other children with the subject child ... 6. Introduce the child to sexual material encouraging sexual activity and normalising it and encouraging secrecy ... 7. Inappropriate sexual behaviour towards the subject child ... " 25 The appellant's legal representatives gave notice of their intention to object to the admission of the evidence. A pre-trial voir dire took place. On 24 November 2004 the trial judge rejected a great deal of the evidence which the DPP proposed to adduce as going to tendency, and declined to admit any evidence as coincidence evidence under s98. He did, however, accept the DPP's contention that certain portions of the statement of GG were admissible as tendency evidence. Specifically, these contained the evidence of the two incidents of 1986 and 1987, of the appellant performing fellatio upon GG, essentially to be found in two paragraphs of his statement. Evidence of some of the background material contained in earlier passages in the statement was also admitted. 26 It will be observed that in the case of the two allegations made by GG that were admitted into evidence, and in contradistinction to all except one of the allegations made by the complainant, the appellant was said to have performed fellatio upon him. By contrast, the allegations of sexual intercourse made by the complainant were, except in one case (Count 4, which was an allegation of fellatio performed by the appellant on the complainant), either of fellatio performed by the complainant on the appellant, or of anal intercourse. 27 In his judgment of 24 November 2004 the trial judge noted the evidence that was before him on the voir dire. It is to be remembered that this took place prior to the commencement of the trial before the jury. The evidence noted by his Honour was a very lengthy statement of the complainant, and two subsequent statements by him; and statements of GG and the three other males to whom I have referred. I have dealt with the salient parts of what was contained in the statement of GG. His Honour noted that each of the other three proposed witnesses related incidents of what his Honour called "low grade sexual activity" on the part of the appellant. He held that "much of the evidence" the DPP proposed to adduce lacked significant probative value and therefore did not meet the threshold requirements of s97(1)(b). He did not explain why this was so. He held that other parts of the evidence, although having significant probative value, failed the test presented by s101(2) because it could not be said that its probative value outweighed its prejudicial effect. He did not further explain this. Nor did he identify which parts of the evidence failed the s97(1) test, and which failed the s101(2) test. He held that only the evidence to which I have already alluded, the evidence of the two incidents recounted by GG, had both significant probative value and passed the s101(2) test. 28 It is not usual, in this court, to insist unduly upon the technicalities of strict pleading. However, in this case, it seems to me that some precision in the analysis of s6 of the Criminal Appeal Act 1912, under which the appeal is brought, and of the pleaded grounds of appeal would be beneficial. In Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [3], Gleeson CJ and Hayne J said: "It is desirable to restate some propositions which are fundamental to criminal appeals but which may sometimes be discussed by the development of shorthand descriptions of what is done in particular cases. It is of the first importance to identify the jurisdiction which the Court of Criminal Appeal exercises, the power the Court is given, and the circumstances in which those powers may be exercised. " (emphasis added) 29 It is useful to recall the terms of s6 which relevantly provides as follows: "6(1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law , or that on any other ground whatsoever there was a miscarriage of justice , and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." (emphasis added) 30 S6 provides for a number of specific and discrete grounds on which an appeal against conviction may be allowed; relevantly, for present purposes, those grounds include: - a wrong decision of any question of law; and - a miscarriage of justice arising as a result of any other ground (or circumstance). 31 The issues raised in the present case highlight the need to differentiate between these grounds. Different considerations may arise in the determination of an asserted wrong decision of a question of law, and the determination of an asserted miscarriage of justice as a result of some other circumstance. The grounds of appeal advanced on behalf of the appellant were framed as follows: "1 The learned trial judge erred in law in admitting the evidence of [GG], because: (a) it was not tendency evidence within the meaning of the Evidence Act s97; (b) it did not have significant probative value; (c) the probative value of the evidence did not substantially outweigh its prejudicial effect on the appellant (s101); (d) there was no ground for its admission. 2 If the evidence of [GG] was admissible (which the appellant denies) the learned trial judge erred in law in directing the jury that the evidence could be used as showing a tendency to commit each and all of the offences charged in the indictment and its use should have been confined to showing a tendency to commit the offence the subject of Count 4." 32 A decision about the admissibility of evidence necessarily and of itself involves the determination of a question of law. Therefore, a ground of appeal that raises the admissibility of evidence is a ground of appeal asserting a "wrong decision on [a] question of law". However, a distinction is to be drawn between a decision about the admissibility of evidence, and a decision to admit evidence on the basis of a discretion provided for in the Evidence Act, or following an evaluation process, such as that contained in s97(1). As I suggest below, appellate challenge to such a decision may be made only in limited circumstances, in which case it, too, raises a ground asserting a "wrong decision of [a] question of law". But the error of law so suggested is an error of a different kind to an asserted error of admissibility. 33 It is also useful to articulate the exercises involved in a decision to admit or reject evidence tendered as tendency evidence under s97(1). Some precision in that analysis, also, is required. It is necessary to bear in mind: - (i) the actual probative value to be ascribed to a particular piece of evidence is committed to the tribunal of fact (in this case, the jury); (ii) even where the judge is the tribunal of fact, it is not ordinarily possible finally to determine the actual probative value of any piece of evidence until the evidence in the case is complete. This is explicitly recognised in s97(1)(b), which envisages that the evaluation of the probative value of the evidence in question is to be made having regard to other evidence "to be adduced", and implicitly by the use of the subjunctive "would not" in s97(1)(b). (iii) whether a particular piece of evidence is capable of being ascribed probative value is to be determined by the trial judge; this is to be done by reference to the test prescribed in the definition of "probative value" contained in the Dictionary and involves an assessment of the extent to which that evidence could rationally affect (i.e. is capable of rationally affecting) the probability of the existence of a fact in issue; (iv) the task that a trial judge undertakes under s97(1) involves a two-step process: firstly, the assessment of the extent to which the evidence in question has the capacity rationally to affect the probability of the existence of a fact in issue; and, secondly, (where the judge concludes that the evidence has that capacity) an assessment and prediction of the probative value that the jury might ascribe to the evidence. The evidence is not to be admitted if the judge concludes that the evidence, either alone or in conjunction with other evidence already adduced or to be adduced, would not have significant probative value, i.e. if the judge concludes that the jury would not regard the evidence as having probative value, and to a significant degree (in the sense explained by Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457). If the determination is that, notwithstanding that the evidence would have probative value, its probative value would not be significant, then the evidence is not admissible. 34 I have not, to this point, said anything about the identification of the "fact in issue", the probability of the existence of which is said to be affected by the evidence under consideration. In some cases precise identification of that fact, or those facts, might be critical to the process. In this case, no attention was paid to that identification. It must be assumed that the fact (or facts) in issue to which the evidence was directed was (or were) whether the appellant had, on each or any occasion, conducted himself as alleged by the complainant. 35 Two things emerge from the above. One is that the s97(1) exercise is predictive and evaluative, and is not a scientific exercise with a clear or rigid answer, or with only one correct answer – reasonable minds will, on occasions, arrive at different results following the evaluative and predictive exercise. The other is that, where evidence "to be adduced" is relevant to the exercise, the exercise must be undertaken on the assumption that that evidence will be given substantially as anticipated. 36 A decision to admit or reject evidence tendered under s97(1) must, obviously, be a decision based upon the information and material available to the judge at the time the decision is made. It is a decision involving "a degree and value judgment" (a phrase drawn from remarks made in the High Court in Fleming v Hutchinson; Conroy v Veit (1991) 66 ALJR 211, when refusing special leave to appeal in an application which otherwise has no bearing upon the present case). Sackville J appears to have taken a similar view in Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51. Such a decision is reviewable on appeal only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499; see also R v Milton [2004] NSWCCA 195 at [33] and Jacara at [75]. 37 The ground here raised is that the trial judge "erred in law in admitting the evidence ...". 38 The purpose of this excursion is to identify the material properly available to this court in order to determine the ground as pleaded. That is, in my view, the material upon which the trial judge made his decision. That was, not the evidence subsequently given in the trial, but the documentation that was placed before him for that purpose. 39 In Mickelberg v The Queen [1989] HCA 35; 167 CLR 259, Mason CJ wrote: "Underlying this uninterrupted stream of authority are two propositions. The first is that an appellate court, in hearing an appeal in the proper sense of the term, is called upon to redress error on the part of the court below. In deciding whether there was error, the appellate court looks to the materials which were before the court below. It is otherwise if, according to the statute governing the jurisdiction of the appellate court, the appeal is by way of rehearing. Then the court of appeal is not restricted to the materials on which the court below gave its decision and may receive additional evidence, including evidence as to matters which have taken place subsequent to that decision." 40 The decision made by the trial judge was made prospectively, on the basis of the statements before him, including the statements of the complainant. Hence, to establish a "wrong decision of [a] question of law" in these circumstances, it would be necessary that the appellant show that the decision to admit the evidence was wrong at the time it was made. Although he did not say so explicitly, it is implicit in the decision that the judge concluded that the evidence of GG in the two paragraphs of his statement that he admitted was capable of rationally affecting the probability of the existence of a fact in issue, and that, in the light of other evidence he anticipated would be adduced (presumably, principally, that of the complainant), he assessed that the jury would ascribe to it significant probative value. In order properly to determine the ground as pleaded, this court really should have access to the actual material that was before the trial judge, and not the evidence that was subsequently given in the trial. If, on that material, it was open to the judge to make the assessment that he did (and no error of the House kind is demonstrated), then this ground of appeal must be rejected. 41 I realise that this analysis might strike alarm into some hearts. It should not. It does not mean, as might at first appear, that the proper (at the time the decision is made) decision to admit tendency (or coincidence) evidence that subsequently turns out to have unanticipated adverse or unfair consequences is beyond review. There remains the ground of appeal set out above, that a miscarriage of justice has occurred. That, no doubt, is the reason for the breadth of the miscarriage of justice ground. It is under this ground that this court is empowered to review the ultimate effect of the admission of evidence as to which no error can be demonstrated in the original determination that it be admitted. 42 An appellant may seek to establish a miscarriage of justice, demonstrable ex post facto, as a result of the admission (or rejection) of evidence, whether or not that decision was correct at the time it was made. The ultimate question is whether a miscarriage of justice has occurred, and that may be tested by reference to the evidence that was actually given and its impact upon the trial. Circumstances might arise that cause a miscarriage of justice even when the anterior decision to admit (or reject) evidence cannot be faulted. By way of example, a judge might correctly decide to admit evidence on the basis of a witness statement; if the witness's evidence as given does not conform to the contents of the statement, injustice may result. It could not, however, be said that the decision to admit the evidence was wrong. 43 In this case, notwithstanding the manner in which the first ground is framed, the focus of the argument, both written and oral, was on showing that a miscarriage of justice resulted from the admission of evidence. I say that because no attention at all was paid, in the argument presented to this court, to the material that was before the trial judge on the voir dire. It was the evidence actually given in the trial that drew the attention of counsel. There are sound tactical reasons for that approach having been taken. It focussed attention upon the very limited evidence that was admitted, and deflected attention from the far more expansive proposed evidence that was rejected. It focussed attention upon divergences and distinctions between the allegations made by the complainant and those made by GG, and deflected attention from the similarities, and the pattern of behaviour asserted. 44 It is also necessary clearly to understand the second ground of appeal. That ground is framed as an attack upon the directions given by the trial judge to the jury. However, properly analysed, the ground is a challenge to the decision to admit the evidence in relation to all charges when, at most, it was (it was contended) available only in relation to Count 4. The basis for that assertion will be seen in due course. 45 The next step in the process involves the application of s101(2). I have previously, in R v Nassif [2004] NSWCCA 443 at [46] – [47], commented upon the curious drafting of s101(2), envisaging, as it does if construed literally, that the evidence is admitted – "evidence ... that is adduced by the prosecution ..." – but imposing restrictions upon the use that may be made of it where its probative value does not substantially outweigh its prejudicial effect. 46 To my mind, s101(2) presents real problems of construction. It has conventionally been treated as an exclusionary rule: see, for example, R v Ellis [2003] NSWCCA 319; 58 NSWLR 700; 144 A Crim R 1. However, in my opinion, there is a real question as to whether s101(2) is indeed a provision about admissibility. It is not so framed. It proceeds upon the basis that the evidence has been adduced. In its terms the subsection is a provision about what use may be made of the evidence once it has been ruled admissible under s97 (or s98) and has been adduced. Support for this view is to be drawn from the circumstance that, as I have suggested earlier, the actual probative value of any evidence is a question for the tribunal of fact – the jury – and at the close of the evidence. 47 But a literal construction of s101(2) would present insuperable problems in a jury trial. How could a jury be asked to assess the prejudicial effect of a particular piece of evidence? The prejudicial effect is ordinarily regarded as the risk that improper use might be made of the evidence. It would be curious indeed if a jury were to be asked to embark upon the exercise of deciding whether the probative value of evidence outweighs its prejudicial effect before hearing the evidence against a defendant. How could a jury be asked to determine whether the probative value of evidence outweighs it prejudicial effect – that is, the risk that the jury might made improper use of the evidence? 48 I can do no more than note the mysteries of s101(2). For present purposes I think I should, notwithstanding my reservations about its terms, continue to treat the section, as have others, and in accordance with authority, as if it were a provision concerning the admission or otherwise of evidence. In those circumstances the fifth step in the s97(1) process (in a criminal case) is the determination of whether, in the opinion of the court, the probative value of the evidence substantially outweighs any prejudicial effect it may have upon the accused. That again involves an assessment and prediction of the use the jury may make of the evidence, against the risk that it may make some improper use of it. This task is also an evaluative one or one involving "a degree and value judgment" and is reviewable on appeal on House principles. 49 In relation to each count on the indictment, the ultimate fact in issue was whether the appellant conducted himself as alleged by the complainant. But they are not the only facts in issue. Just what facts are in issue in any case depends upon the facts and circumstances alleged by the prosecution (including facts and circumstances from which the prosecution would seek to have inferences drawn) and any responses made by the person accused. If evidence tends to elucidate (i.e. rationally affect the assessment of the probability of any such fact), then that evidence has probative value. Any fact upon which the prosecution relies to establish the offence charged is, of course, a fact in issue, even where it is not disputed by the accused. A lay person may well be forgiven for thinking that evidence of a tendency to sexual misconduct with adolescent boys could rationally affect the assessment of the probability that the appellant sexually misconducted himself with the complainant as an adolescent. 50 But this is where caution needs to be exercised. While it may be tempting to think, for example, that evidence of a sexual attraction to male adolescents has probative value in a case where the allegations are, as here, of sexual misconduct with a male adolescent, an examination must be made of the nature of the sexual misconduct alleged and the degree to which it has similarities with the tendency evidence proffered. There will be cases where the similarities are so overwhelming as to amount to what, in pre-Evidence Act days was called "similar fact" evidence, showing "a striking similarity" between the acts alleged; and there will be cases where the similarities are of so little moment as to render the evidence probative of nothing. And there will be cases where reasonable minds may differ as to the extent to which proof of one fact or circumstance may rationally affect the assessment of the probability of the existence of another fact. 51 His Honour's stated reasons for admitting the specific portions of the GG statement were pithy. He noted the arguments advanced by the parties. He correctly directed himself, in accordance with Ellis, that s101(2) involves a balancing exercise, requiring the court to make a judgment rather than to exercise a discretion. He then said: "In my judgment much of the evidence sought to be led by the Crown as tendency evidence lacks significant probative value and thus does not meet the threshold requirement of s97(1)(b). Other portions of the evidence, although having significant probative value, fail the test presented by s101(2) in that it could not be said that the probative value of the evidence outweighs any prejudicial effect it may have on the accused. The only evidence which, in my view, has significant probative value, and which passes the test presented by s101(2), is the evidence the Crown expects to be given by [GG] concerning the two incidents referred to by him at paragraphs 36 and 38 of his statement ... I reject Mr Barker's submission that the evidence is different in character and too remote in point of time. That evidence will be admitted as tendency evidence." 52 It is not apparent from this passage that the trial judge fully recognised the manner in which the DPP sought to use the evidence as tendency evidence. Had he done so, it may well be that more of the proffered evidence would have been admitted than ultimately was the case. The DPP was not seeking merely to establish that the appellant had a tendency to engage in acts of intercourse with young male parishioners. He was seeking to establish a pattern of behaviour which was potentially probative of the criminal acts alleged. 53 In written submissions provided to this court counsel for the appellant argued that the evidence of GG was not admissible under s97 because: "(1) It did not have significant probative value. (2) The probative value of the evidence did not substantially outweigh the prejudice to the accused. (3) It was evidence of two acts of one specific sort remote in time and circumstance from any of the acts charged. The only similarity at all was to the single act charged in Count 4. It was too remote in time and circumstance to be admissible as evidence relevant to Count 4. Even if admissible in respect of the act alleged in Count 4, it was irrelevant to all the other counts and its use as tendency evidence should have been restricted to Count 4. (4) The evidence did not pass the stringent test posed by s101(2) and therefore could not have survived the narrow 'unfair prejudice' test in s135 or s137. (5) Had the appellant been charged with the two offences alleged by [GG], it is highly likely he would have succeeded in an application to have the [GG] charges tried separately from the [charges concerning the complainant], because evidence of the former would not get in as evidence of the latter. (6) The effect of the evidence was to permit evidence of irrelevant bad character to taint the jury's deliberations and to deprive the appellant of the real chance of an acquittal on each charge." 54 The challenge to the admission of the evidence is, therefore, effectively an attack upon the decision making process at each step of the sequence involved in a consideration of the admission of evidence under s97. In case it is not already clear, the fundamental premise in the appellant's argument concerns the nature of the sexual activity described by the complainant, and the nature of the sexual activity described by GG in the evidence that was admitted. In GG's case, each alleged act of sexual intercourse involved the performance by the appellant, upon GG, of an act of fellatio. Of the nine charges concerning the appellant's conduct towards the complainant, only one involved the performance of fellatio by the appellant upon the complainant. The other three counts involving fellatio all involved the performance by the complainant upon the appellant of that act. And the remaining charges of sexual intercourse are of anal intercourse performed by the appellant upon the complainant. 55 The second aspect of the argument concerned "the remoteness in time" of the conduct alleged by GG (in 1986 and 1987) from that alleged by the complainant (in 1990 and 1991). Thus, the argument went, the evidence of GG was incapable of establishing any relevant "tendency". 56 As I have indicated above, and notwithstanding the terminology of the grounds of appeal, the argument did not really proceed on the basis of an attempt to establish that the decision at the time it was made was erroneous, but rather, that the admission of the evidence resulted in a miscarriage of justice. Nevertheless, in my opinion it is proper to consider the ground as framed, and, more particularly, to consider the material (including that which was excluded) that was before his Honour. To conform with s6 of the Criminal Appeal Act, and with the principles I have outlined above, this ground must be taken as contending that it was not open to his Honour to reach the conclusion he did – either that it was not open to him to conclude that the evidence had the capacity to have probative value, or that it was not open to him to conclude that the jury would ascribe significant probative value to the evidence. No other error of a House kind was asserted. 57 This, in my opinion, immediately throws up a fallacy in the argument advanced on behalf of the appellant. The argument drew attention to two aspects of the evidence which differentiated the allegations made by the complainant and those made by GG: the nature of the sexual conduct alleged; and the date of its alleged perpetration. But there was a great deal more than that before his Honour. The approach taken on behalf of the appellant is unduly confined, and disguises the true nature of the tendency evidence the DPP sought to adduce. What was contained in the tendency material was capable of establishing a pattern of behaviour on the part of the appellant, incorporating at least the following features. GG was two or three years older than the complainant, and his allegations were of conduct three or four years earlier than that alleged by the complainant: both were therefore young adolescents, twelve, thirteen or fourteen, at the time of the alleged conduct. Both gave accounts of being members of practising Catholic families, who were befriended by the appellant. Both served as altar boys. Both recounted conversations of a sexual nature. Both recounted admonitions by the appellant not to divulge to anybody what had happened. Both recounted assertions made by the appellant that the activity was normal. 58 There were accounts of two incidents, one by GG and one by the complainant, that were, indeed, of marked similarity. These were the act of indecency the subject of the first count, and a virtually identical act alleged by GG (although it was not admitted into evidence). In each case the evidence was that the victim was in the appellant's car when the appellant inquired whether he masturbated, and then began masturbating himself. 59 It is true that in the determination of criminal charges, for policy reasons, the common law steadfastly resisted, except in rare instances, the use of evidence of criminal acts other than the acts the subject of the charges. For example, in Hoch v The Queen [1988] HCA 50; 165 CLR 292, the majority of the High Court held: "Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force: ... that strength lies in the fact that the evidence reveals 'striking similarities', 'unusual features', 'underlying unity', 'system' or 'pattern' such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution." (pp 294 – 295) 60 While the concluding words of that passage are not entirely apposite to the present issue (being more apposite to a consideration of what is now called coincidence evidence), the substance of the passage is. The strength of the evidence tendered by the prosecution as tendency evidence lay in its capacity to establish the objective probability of the truth of the complainant's account of the appellant's conduct. The evidence of GG was capable of lending support to the allegations made by the complainant by reason of striking similarities, underlying unity, system or pattern. Of course, decisions such as Hoch no longer govern the admissibility of evidence of tendency (see Ellis). But that does not necessarily render cases such as Hoch irrelevant. There is no reason why the reasoning that led the High Court to accept the admissibility of similar fact evidence in appropriate cases before the enactment of the Evidence Act should not guide the reasoning process in the evaluation of whether tendered evidence is capable of having, or would have, significant probative value. 61 The trial judge did not in any detail expose the reasoning that led to his ultimate decision. However, it is plain enough that he was well aware of the nature of the steps he was to take, and the tests he was to apply. I am unable to see that he made any error of the House kind in reaching his decision. I am sustained in that view because, it seems to me, he was entirely correct in permitting GG's evidence to go to the jury. If any error were made, it may have been in the exclusion of additional evidence that another judge may have admitted. There is, of course, no occasion for this court to review the decision to the extent that it excluded evidence. But that does not mean, in assessing the correctness of the decision at the time it was made, that the court cannot have regard to that material. It is appropriate to do so. 62 Two prior decisions of this court may be noted. In R v Harker [2004] NSWCCA 427, unreported, 2 December 2004, this court had before it an appeal brought by the Crown pursuant to s5F(3A) of the Criminal Appeal Act concerning a ruling made in the District Court in respect of evidence the prosecution proposed to tender under s97(1) of the Act, refusing to admit the evidence. The respondent to that appeal was charged with a number of counts of sexual assault against a child. The complainant alleged that the respondent had shown him pornographic videos and given him drugs. The prosecution proposed to tender evidence of a friend of the complainant and of the respondent to the effect that the respondent had behaved towards him in a similar fashion to that alleged by the complainant in those proceedings, and had given him alcohol and drugs. Howie J, with whom Santow JA and Bell J agreed, wrote: "51 The Crown argues that the probative value of the evidence of [the witness] 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 [the witness] in the way the respondent acted towards them and that this similarity in conduct shows that the respondent had the 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 [the witness] 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 [the witness] and the complainant for the evidence of [the witness] to satisfy the test of admissibility under s97(2)(b). 52 Clearly the simple fact, if it were the fact, that the respondent was indecently assaulting [the witness] or engaging in homosexual intercourse with him would not be admissible as proof that he was engaged in similar conduct with the complainant ..." 63 Howie J referred to R v Milton [2004] NSWCCA 195, unreported, 18 June 2004. There the appellant had been tried on an indictment alleging a number of sexual offences involving two complainants. The principal issue raised on the appeal was whether there should have been a separate trial on the allegations involving each complainant. However, that issue was to be determined by whether or not evidence concerning one complainant would have been admissible as tendency evidence in the trial of the other complainant. If it were, there would have been no utility in ordering separate trials. In refusing separate trials, the first instance judge identified a series of common assertions made in relation to each set of offences. These involved the age of the complainants, that both of them had worked for the appellant, and that the appellant had made alcohol and drugs available to them at his home. 64 Hidden J, with whom Tobias JA and Greg James J agreed, wrote: "31 The detail of the sexual activity alleged by each of the complainants and the circumstances surrounding it is not to the point. 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." 65 His Honour went on to observe: "33 Whether evidence tendered as tendency evidence passes the test imposed by s101 of the Evidence Act is very much a matter of judgment in the particular case. No doubt, in many cases, including the present, it is a question about which reasonable minds might differ. However, what the appellant must show is that it was not open to his Honour to have found that that test was satisfied. I am not so persuaded and, accordingly, I would dismiss these two grounds of appeal." 66 The court in Harker did not rule that the evidence there tendered was admissible. That was because the appeal was an interlocutory one arising from the rejection of evidence tendered by the Crown, said to be as a result of error in the process of determining the various questions involved. Agreeing with Hidden J in Milton that, in the circumstances of the case, these questions were questions on which reasonable minds might differ, and that a future trial judge might be asked to make the determinations on the basis of non-identical evidence, the court merely set aside the decision of the judge, and returned the proceedings to the District Court for further hearing. However, it is apparent that the court accepted that the argument put forward by the Crown concerning the significance and relevance of similarities in the account given by the complainant and the witness, and that, where those similarities are sufficient, they may amount to a proper basis for satisfying the s97(1) test. 67 In my opinion, the present appellant's argument focused too narrowly upon a tendency to have sexual intercourse in a particular fashion. The DPP's explanation, provided to the appellant's legal advisors, shows that the "tendency" which it sought to establish was wider, and more detailed. The DPP sought to establish a pattern of behaviour, or even a modus operandi, in the appellant's behaviour. This included the use of his position as parish priest in meeting Catholic families and involving himself in their lives, developing a special relationship with the families, the children of the families, and in particular with a child the focus of his attention; and the introduction of the child to sexually explicit material and, eventually, inappropriate sexual behaviour. 68 I have come to the view that it was open to his Honour to conclude that the evidence was capable of having probative value and that a jury would perceive it as having significant probative value. GG was, at the time of the offences against him, about the same age as the complainant was at the time of the offences alleged to have been committed against him. Notwithstanding some slight variation in the manner in which the appellant was said to have secured the acts of intercourse, there was sufficient similarity between the two sets of allegations as to make the GG allegations potentially probative of the complainant's allegations. The surrounding circumstances, of the appellant's friendship with the families, and the role of the complainant and GG as altar boys, were capable, in my opinion, of fleshing out and confirming the prosecution case against the appellant in respect of those acts with which he was charged. I find no error in the (implicit) conclusion that the jury would ascribe to the evidence significant probative value. 69 Equally plainly, however, the evidence had a significant prejudicial effect. The question which arises under s101(2) (as it has been construed) is whether the probative value of the evidence substantially outweighed the prejudice to the appellant. If, in his Honour's view, it did not, then pursuant to s101(2) (on the conventional construction), he was obliged to reject it. That exercise, as I have indicated above, involved the judge putting himself, so far as he could, in the shoes of the jury, and predicting what use they would make of it. 70 If the evidence had been limited to the bald assertions of sexual intercourse contained in the two paragraphs which his Honour specifically mentioned, then it may be that the probative value did not substantially outweigh its prejudicial effect. However, the circumstances that allowed the evidence to pass the s97(1) test were also material in this evaluation. The evidence given by GG concerning the appellant's relationship with GG's family, and his involvement in the church, parallelling evidence concerning the relationship of the appellant with the complainant and his family, also affected the probative value of the evidence relative to its prejudicial effect. Of course, the prejudicial effect was significant, but it was, in my opinion, open to the judge to conclude that the prejudicial effect was substantially outweighed by the probative value. There was thus no error of law in the decision to admit the evidence. 71 It is then appropriate to consider whether, as the trial proceeded and concluded, the decision to admit the evidence gave rise to a miscarriage of justice. I have already signalled my view that another judge may have taken a more robust approach to the s97(1) determination, and admitted more of the evidence tendered by the DPP. It is conceivable that the admission only of a limited portion of the evidence tendered might have a skewing effect, giving rise to a miscarriage of justice as a result of the omission or exclusion of other portions. That is not this case. Firstly, the appellant was at the trial represented by the same highly experienced senior counsel who appeared on the appeal. Had he perceived any potential adverse impact or injustice to the appellant by reason of the selective admission of evidence, it was open to him to, and he undoubtedly would, have sought the admission of any ameliorating evidence. Secondly, no proposition was put on appeal that the limited nature of the evidence admitted under s97(1) adversely affected the fairness of the trial, or jeopardised the appellant's chance of an acquittal. Thirdly, I have scrutinised the material put before this court, and can see nothing in the rejected tendency material that could have enhanced the appellant's position. I am therefore not persuaded that any miscarriage of justice arose as a result of the admission of GG's evidence. 72 I am therefore satisfied that the appeal ought not be allowed on the ground of the wrong decision of a question of law. Nor should it be allowed on the basis that the admission of the evidence gave rise to any miscarriage of justice. ground 2 73 I have already observed that, despite the complaint about directions contained in the ground as framed, the substance of this ground is the admission of the evidence of GG in relation to all counts in the indictment. Since I have concluded that the evidence was admissible in relation to all counts, it follows that this ground cannot succeed. For reasons I have given, I would reject the second ground of appeal. 74 I have therefore come to the conclusion that the appeal against conviction should be dismissed. 75 ROTHMAN J: The Appellant, James Patrick Fletcher, appeals pursuant to the terms of s.5(1)(a) of the Criminal Appeal Act 1912 against his conviction. The appeal alleges that the trial judge in the District Court erred in law in admitting evidence against the appellant under the tendency evidence provisions. The evidence, it is said, is not tendency evidence; did not have a significant probative value; such probative value as it did possess did not substantially outweigh its prejudicial effect on the appellant; and there was no ground for its admission. A further question of law was raised by the appellant in the alternative, namely, that, having admitted the evidence in question, in the submission of the appellant inappropriately, the Judge erred in directing the jury on the use to be made of the evidence in proving all of the charges. Facts 76 The Appellant was convicted of nine (9) charges. They consisted of one count of committing an act of indecency towards a person under 16 years and under authority, which occurred, it is said, between 15 December 1989 and 31 January 1990, which conduct was a contravention of s.61E(2A) of the Crimes Act 1900 (Count 1). There were 8 counts of a contravention of s.78K of the Crimes Act 1900, being homosexual intercourse with a male of or above the age of 10 and under the age of 18 years, which offences occurred: in the case of Count 2, between 16 March 1990 and 31 March 1990; in the case of Count 3, between 1 April 1990 and 30 April 1990; in the case of Count 4, between 1 June 1990 and 30 June 1990; in the case of Count 5, between 1 June 1990 and 30 June 1990; in the case of Count 6, between 1 August 1990 and 30 August 1990; in the case of Count 7, between 1 November 1990 and 30 November 1990; in the case of Count 8, between 1 January 1991 and 31 December 1991; and, in the case of Count 9, between 1 November 1991 and 30 November 1991. 77 The appellant pleaded not guilty to each count and was convicted on each count. 78 Because there have been changes to the Crimes Act 1900 it is appropriate to set out the terms of the offences, namely, as mentioned above, s.61E(2A) and s.78K of the Crimes Act 1900. They are: " Section 61E – Sexual Assault Category 4 – indecent assault and act of indecency … (2A) Any person who commits an act of indecency with or towards a person who - (a) is under the age of 16 years; (b) is (whether generally or at the time the act is committed only) under the authority of the firstmentioned person, or who incites any such person to an act of indecency with that or another person shall be liable to imprisonment for four years." " Section 78K - Homosexual intercourse with a male between 10 and 18 A male person who has homosexual intercourse with a male person of or above the age of 10 years and under the age of 18 years, shall be liable to imprisonment for 10 years." 79 The appellant was, at the time of the alleged incidents, a parish priest and the complainant was, at least at one stage, a parishioner and an altar boy in the parish. 80 The allegations and the charge are of various sexual acts which it is necessary to detail. 81 Count 1 was said to have been committed at Clarence Town. It is alleged, in that count, that the appellant, while the complainant was seated in the front passenger seat, masturbated in his motor vehicle whilst en route from Clarence Town to Dungog. Prior to his act of masturbation the appellant enquired of the complainant regarding whether the complainant had experienced "erections" and enquired of the complainant in relation to "masturbation". The appellant also encouraged the complainant to masturbate in the car during the ride. 82 Count 2 alleged an act of homosexual intercourse, as did Counts 3 and 6. Each of them was said to have occurred at the Walka Water Works. In the first such allegation, Count 2, it is suggested that the appellant enquired of the complainant whether the complainant wanted to make the appellant reach orgasm whereupon he drew the complainant towards him and the complainant performed fellatio upon the appellant. Counts 3 and 6 were identical save for the timing of the incident. 83 Count 4 was in relation to an allegation that the appellant drove the complainant to a park at Paterson where the appellant performed fellatio upon the complainant. 84 Count 5, it is alleged, occurred on the same day and at the same time (or immediately after) the events of Count 4. It is alleged that the appellant, after performing fellatio upon the complainant (Count 4) and the complainant not reaching orgasm, suggested that he, the appellant, could bring the complainant to orgasm whereupon he engaged in anal intercourse with the complainant. It is that act of anal intercourse, alleged to have occurred in those circumstances, that is Count 5. 85 There were three other acts of anal intercourse alleged against the appellant which are Counts 7, 8 and 9 and which occurred respectively near a tree in a street at Adamstown, in the back of a vehicle by the river at Glen Oak and at a park at Paterson. 86 Other than the allegations in Count 4, none of the acts alleged against the appellant relate to the performance of oral sex by the appellant on the complainant. It is also important to note that each of the incidents which give rise to the counts with which the appellant was charged are incidents which occurred in or around public places, although not in public view, in circumstances that the behaviour was discoverable by the public. The complainant was 13 or 14 years of age at the time of the incidents. 87 If the evidence of the complainant were to have been accepted by the jury, which it was, the allegations would be made out and the appellant properly convicted of the offences charged. Part of the reasoning process that the jury was invited to adopt was to accept that certain evidence suggested a tendency to the behaviour with which the appellant was charged. It is the admission of that tendency evidence and its use to assist in the proving of the charges that is in issue in these proceedings. The Tendency Evidence 88 The tendency evidence was adduced from a witness, GG, who was also an altar boy in the parish of which the appellant was the priest. GG alleged that when he was 13 years of age, two (2) incidents occurred. In October/November 1986 it is alleged that the appellant fellated GG while GG was staying the night at the presbytery and in bed in the spare room. After this incident, GG again, at least once, stayed overnight at the presbytery and in March 1987, the appellant once more fellated GG while in bed there. There is no allegation in evidence that the appellant performed, or sought to perform, any other sexual act on GG nor sought to have GG perform any sexual act on the appellant. Further, as it has been raised in submissions, it should be pointed out that each of the acts alleged by GG occurred in circumstances that were totally private and in circumstances in which it would be extremely difficult, if not impossible, for that which was occurring to have been discovered by others. 89 As already stated, over objection from Counsel for the appellant at trial, the trial judge admitted the evidence of GG as tendency evidence against the appellant in relation to all charges, each of which related to the complainant. No charges were laid in relation to the alleged incidents relating to the witness GG. 90 During the course of his summing up, the trial judge referred to the evidence of GG as falling into a "different category" than the evidence of the complainant. He said of the evidence of GG: "That is evidence that has been put before you by the Crown in order to indicate that the accused does have a certain tendency. It is necessary that I give you very specific directions about that. Members of the jury, the accused is not charged with any offences against [GG]; bear that in mind first. The only use you may make of the evidence is to consider whether it demonstrates a tendency on the part of the accused to act in the way he is accused of acting towards [the complainant] between December 1989 and November 1991. In considering whether the evidence of [GG] shows any tendency on the part of the accused to do what [the complainant] alleges, you must take account of the different circumstances in which the acts alleged by [GG] and the acts alleged by [the complainant] are said to have happened, and the lapse of time between the acts alleged. As to the differing circumstances and times, [GG] alleges that he stayed overnight at the … Presbytery in 1986 and the first act happened when he was in bed. [GG] said the second act was again in the … Presbytery when he stayed over night in 1987, again after he had gone to bed. [The complainant], on the other hand, says that he had sexual acts performed upon him in a park at Paterson in daylight, at the Water Works in daylight, at Adamstown in Fletcher Street at night, and on a Saturday night at Glen Oak beside the river. To use [GG]'s evidence for the limited purpose I have described, it must first satisfy you beyond all reasonable doubt that it is true. I am going to repeat that because it is important. Mr Barker has emphasised it and I emphasise it again. To use [GG]'s evidence for the limited purpose I have described, it must first satisfy you beyond all reasonable doubt that it is true. If you have a reasonable doubt as to the truth of the evidence you must reject it from your deliberations and ignore it. Whilst you may accept the evidence, you could not accept it without scrutinising the evidence with great care. In considering [GG]'s evidence, it is essential that you give full weight to the warnings that I gave you earlier in respect of [the complainant]'s evidence. [GG] is the only one who asserts the commission of the offences. There has been a very great delay in the allegations being brought to the attention of the accused, occasioning to him the very same problems to which I referred earlier in the context of [the complainant]'s allegations. In particular, by reason of delay, the accused has been denied the opportunity of adequately testing [GG]'s story. You need to bear all that very firmly in mind." 91 It is clear from the above and from two rulings given at different times on the voir dire that the evidence of GG was put to the jury on the basis that it could be used, to the extent that the jury accepted it, to indicate that the accused had "a certain tendency". That tendency, as particularised by the trial judge, was "a tendency on the part of the accused to act in the way he is accused of acting towards" the complainant at the relevant times. Otherwise, it was described by his Honour below as whether "evidence shows any tendency on the part of the accused to do what [the complainant] alleges." 92 Notice of the evidence of GG was given by the Crown under both s.97 (Tendency) and s.98 (Coincidence) of the Evidence Act 1995 (the Act). 93 The evidence was not utilised under the Coincidence rule pursuant to s.98 of the Act. The tendency particularised by the Crown was in different terms to the tendency put to the jury by the trial judge. The Crown sought to tender the evidence as showing a tendency to act in particular ways being the alleged conduct of the appellant which was divided into a number of aspects: (a) meet the family of the subject child through his position in the church; (b) involve the family of the subject child in the church; (c) develop a special relationship with the family of the subject child; (d) develop a special relationship with the children of the family; (e) develop a special relationship – over and above that of the other children – with the subject child; (f) introduce the child to sexual material encouraging sexual activity and normalising it and encouraging secrecy; and (g) inappropriate sexual behaviour towards the subject child. I will hereafter refer to the above as the Tendency Particulars. 94 The particularisation of the facts sought to be proven by the tendency evidence requires some comment. It was not in issue in the proceedings against the appellant in relation to any one of the charges that the appellant, in his position as a parish priest, met the family of the complainant through his position in the church; involved himself in the family of the subject child in the church; developed a special relationship with the family of the complainant; developed a special relationship with the children of the family and even that there was developed a special relationship – over and above that of the other children – with the complainant. In other words, none of the Tendency Particulars set out in sub-paragraphs (a), (b), (c), (d) and (e) were in issue in the proceedings. 95 Furthermore, the conduct or relationship described in Tendency Particulars (a) through to (e) above is conduct that, absent the particulars in (f) and (g), would be unexceptionable amongst any pastoral care worker (leaving aside the reference to the church). 96 That is not to say that the Tendency Particulars referred to in paragraphs (a) through to (e) above are irrelevant. They set the basis for and are the surrounding circumstances to that which is alleged in paragraphs (f) and (g). However previous allegations which go to prove a tendency to act in the way described in paragraphs (a) through to paragraph (e) would, without more, not go to an issue in the proceedings. There will be circumstances where previous allegations relating to surrounding circumstances are so significant and so different that in and of themselves they would show a tendency to particular conduct in a particular manner which may be extremely probative. 97 In this case, one is left with the situation where the allegations of previous conduct which may be relevant to matters in issue are those courses of conduct described in Tendency Particulars (f) and (g). To the extent that allegations of such conduct are admissible to prove a tendency to act in the way alleged in the particular offences with which the appellant is charged then the surrounding circumstances of those allegations, namely Tendency Particulars (a) to (e), would be admissible to show the circumstances in which the conduct in (f) and (g) occurred. On that analysis it is necessary to determine the admissibility of all the tendency evidence on the basis of the conduct in Tendency Particulars (f) and (g). Relevance 98 The structure of the Evidence Act 1995 (NSW) (the Act), is to make all relevant evidence admissible (s.56 of the Act) and thereafter to provide exceptions. Section 55 of the Act provides that evidence is relevant if it "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". I recite these, somewhat trite, propositions because they explain the operation of Part 3.6 of the Act and in particular s.97 and s.98. Each of s.97 and s.98 takes the form of excluding evidence that does not meet certain criteria. In other words, the effect of s.97 and s.98, read together with s.55 and s.56 of the Act, is to render eligible relevant evidence except tendency or coincidence evidence that has not been the subject of notice or does not otherwise fit the criteria established in s.97 or s.98 of the Act. 99 The above analysis, while normally considered trite, arises because of the manner in which the issues come before the Court in this appeal. If, as seems to have been suggested, evidence has no probative value, it is not relevant and is not admissible pursuant to s.56 of the Act. 100 Moreover, it is relevant, as already stated, only if it rationally affects the probability of the existence of a fact in issue. If a fact is not in issue in proceedings, evidence going to that fact is not relevant pursuant to the terms of s.55 of the Act. Tendency and Coincidence Provisions 101 I turn then to the provisions in s.97 and s.98 of the Act. As already explained, s.97 provides to the effect that evidence, relevantly, of a tendency that a person has or had, is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, if notice has not been given or if 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. 102 Section 98 of the Act has a relevantly similar, if not identical, qualification relating to the significant probative value of the evidence to be adduced, also requires notice and, in the case of s.98, relates to evidence that two or more related events occurred being admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind. Subsection 98(2) of the Act defines "related events" as those that are "substantially and relevantly similar" and occurred in circumstances that "are substantially similar". 103 Probative value is defined in the Dictionary to the Act as meaning "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." There is an obvious correlation between the definition of "probative value" and that of "relevant evidence" pursuant to the terms of s.55 of the Act. The definition of "probative value", however, seeks to attribute to relevant evidence a "value" by the use of the words "the extent to which" and in so doing makes the probative value of relevant evidence the degree to which it is relevant (see Lockyer (1996) 89 A Crim R 457 at 459). 104 Sections 97 and 98 of the Act therefore require a degree of rational effect on the assessment of the probability of the existence of a fact, which effect is significant. Some attention has been paid, in the cases, on the use of the term "significant" in the expression "significant probative value". Most of the cases examine the phrase "significant probative value" by a comparison with the original ALRC recommendation which was that it have a "substantial probative value" (ALRC 26, Volume 1, para 810). Some of the analysis sees the alteration from use of the word "substantial" to the word "significant" as, itself, significant. It may be, however, that the alteration was made solely for the reason that the word "substantial" is said to be ambiguous. The word "substantial" can generally mean either "of substance" or "in substance". As such, it has been given at least two quite distinct meanings. The first of them is to use the words "substantial" or "substantially" to qualify "existence at all" and is used in contradistinction to the term "nominal" or "ephemeral" (see for example Tillmanns Butcheries Pty Ltd v AMIEU (1979) 42 FLR 331; O'Brien Glass Industries Limited v Cool and Sons Pty Ltd t/a Wagga Windscreen Service (1983) 77 FLR 441). The second or latter use of the term "substantial" or "substantially", meaning "in substance", is used to qualify "totality" and is used in the sense of "essential", "essentially", primary examples of which would be "substantial compliance" or "substantially all" (see Bonnard v London General Omnibus (1921) 38 RPC 1; Re: Bonny [1986] 2 Qd.R 80; Re: Migliorini; ex parte Silk Brothers (1974) 22 FLR 491; Marc A Hammond Pty Ltd v Papa Carmine Pty Ltd (1977) 28 FLR 160; Palser v Grinling [1948] A.C. 291; Chatsworth Investments Ltd v Amoco (UK) Ltd [1968] 1 Ch 665 (C.A.); Henry Burford [1932] 2 Ch 122 (C.A.); A.E. Terry's Motors Ltd v Rinder [1948] SASR 167; Commissioner for Superannuation v Scott (1987) 13 FCR 404) "The word 'substantial' is not only susceptible of ambiguity; it is a word calculated to conceal a lack of precision … [I]t can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in the relative sense or can indicate an absolute significance, quantity or size." (per Deane J in Tillmanns Butcheries, supra at 348). 105 Little, in my respectful opinion, is gained from examining the reason for the change from "substantial" to "significant". It is sufficient, rather, to deal with the term "significant" as it is expressed. "One of the primary meanings of the adjective 'significant' is 'important', or 'of consequence'. In my opinion that is the sense in which it is used in s.97. To some extent, it seems to me, the significance of the probative value of the tendency evidence … must depend upon the nature of the fact in issue to which it is relevant and the significance (or importance) which that evidence may have in establishing that fact." (Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457 at 459) 106 I agree with Hunt CJ at CL in the meaning to be given to the word "significant" and I also agree, to the extent that it adds to the above, with his Honour when, in the passage immediately preceding the above, he said that "significant probative value must mean more than mere relevance but something less than a 'substantial' degree of relevance." (See also R v Lock (1997) 91 A Crim R 356 at 361; R v AH (1997) 42 NSWLR 702 at 709; R v Fordham (1997) 98 A Crim R 359 at [15]). In the context just cited and used by his Honour "substantial" should be taken to refer to a meaning similar to "in substance" as used in Tillmanns and cited above. If in the context used immediately above "substantial" was given any other meaning, it would not pay sufficient regard to the fact that all tendency evidence is, by its nature, circumstantial and inferential. 107 In other words, the question must first be asked: does the existence (assuming it is accepted) of the character, reputation or conduct (the tendency evidence) render more probable that which is in issue in the proceedings? If the evidence does not rationally render that which is in issue more probable, then those facts give rise only to the possibility of conflicting results of equal probability and the adducing of evidence of the earlier conduct is inviting conjecture. (See Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163 at 173; Bell v Thompson (1934) 34 SR 431; Jones v Dunkel (1959) 101 CLR 298 at 309-310; Fabre v Arenales (1992) 27 NSWLR 437). General human experience would have to make the existence of the facts which are subject to the evidence in dispute such that the facts in issue in the charges are rationally affected before the evidence has any probative value. This means that the degree to which there is a greater likelihood that the facts in issue occurred, because of the tendency evidence, would have to be more than nominal or ephemeral (i.e. substantial in the earlier sense) before the inference could even be drawn. If the inference were available then it would need to overcome the further hurdle that it is of significant probative value, i.e. important in the determination of the existence of the facts in issue, before the test in s.97 has been met. Balancing Probative Value and Prejudice 108 If, and only if, the tendency evidence has passed the requirement that it renders more probable the facts in issue, does s.97 have any work to do. At that point the Court must determine whether the tendency evidence has an important role to play in the determination of the occurrence of the facts in dispute in the charge. If, and only if, each of those tests are passed, the Act imposes, in criminal proceedings, a further requirement under the provisions of s.101(2) of the Act. Section 101 of the Act requires that the Court assess whether the probative value of the tendency evidence "substantially outweighs" the prejudicial effect it may have on the defendant in proceedings. If it does not, then, to the extent that it is evidence adduced by the prosecution against the defendant, it cannot be used against the defendant. 109 This Court in R v Ellis (2003) 144 A Crim R 1 discussed the previous common law principles referrable to coincidence evidence (previously referred to as similar fact evidence) and tendency evidence (previously referred to as propensity reasoning) and the applicability of the common law in circumstances where the Evidence Act now applies. The reasoning of this Court expressed by Spigelman CJ, with which reasoning the High Court agreed ([2004] HCA Trans 488, page 40-41), makes clear that it is the Act which determines the admissibility in this area and not the prior common law principles. Section 97 and s.98 deal with both civil and criminal proceedings and the tests there prescribed are of general application. Each section excludes admissibility of material although relevant. Section 101 of the Act deals only with criminal proceedings and is the provision relating to the use that may be made of tendency or coincidence evidence adduced against the defendant. Section 101 requires the weighing of probative value and prejudicial effect. 110 Assuming, for the purpose of the analysis, that the requirements in either s.97 or s.98 have been met and the evidence is relevant and otherwise admissible, then, in criminal proceedings, the Court must balance the probative value of the evidence and its prejudicial effect against the defendant (assuming that it is the prosecution that seeks to adduce the evidence). In those circumstances, s.101(2) requires that the probative value of the evidence "substantially outweighs" the prejudicial effect on the defendant. 111 In ordinary parlance, the notion of balancing or weighing different concepts normally assumes that as one becomes stronger, the other becomes weaker or remains static. Such is not necessarily the case in relation to probative value and prejudicial effect. To take the extreme example of similar fact evidence as it was termed under the common law principles, its probative value may lead one to conclude that there is no other reasonable explanation other than that the evidence, sought to be adduced, is inconsistent with the innocence of the accused. In those circumstances, the more probative the evidence to that effect, the more prejudicial it is to the case of the accused. On the other hand, evidence of facts which show a propensity to have sexual relationships with young males, simpliciter, may be of little, if any, probative value but extraordinarily prejudicial. The issue raised by s.101(2) of the Act, therefore, becomes one in which the Act requires the Court to impose a layer of restriction on the use of evidence such that the Court looks at the degree to which the evidence in dispute is probative of the facts sought to be proved as against the prejudice that will, almost by definition, be caused to the defendant by its admission. 112 It is of interest that the balancing exercise in s.101(2) of the Act is differently expressed than in s.137 of the Act. (Section 137 is the general exclusion, in criminal proceedings, for evidence that is more unfairly prejudicial than probative.) There are two obvious distinctions. Firstly, s.101(2) requires "substantial outweighing" and, secondly, the prejudice, in s.101(2), to be considered in the balancing is not confined to "unfair prejudice" as it is in s.137 of the Act. 113 It seems that the legislature has deliberately made the test for use of tendency or coincidence evidence under s.101(2) (even disregarding the strict test in s.97 and s.98) more difficult than would be the case if one were considering the admissibility question under s.137 of the Act. Moreover, the terms of s.101(2) and s.137 of the Act are complementary. Section 101 of the Act prohibits use of evidence in the manner described. If any such proposed evidence has no other use it would have no allowable probative value and would be inadmissible under s.137, if not under s.97 and s.98 of the Act. 114 It also seems that, at least in s.101(2) of the Act, the term prejudice excludes the necessary prejudice that derives from the increased ability to prove rationally the case against the defendant. In that way by referring to "prejudice" in the sense of the irrational effect on the perception of the defendant by the factual decision-maker, the legislature would be taken to have obviated the problem, referred to above, that derives from the increasing prejudice on the case of the defendant, the more probative the tendency evidence becomes. 115 It is conceded, most appropriately, by the Crown, that evidence of sexual preference is not relevant to, or, put otherwise, has no probative value in relation to, the commission of an offence of this kind. Thus, evidence that a person is heterosexual is not probative of a sexual offence against a member of the opposite sex; and homosexuality is not probative of the commission of a sexual offence against a person of the same sex. 116 In the proceedings before the Court in this matter, the major issue between the parties is not the identity of the appellant, but the commission of an offence at all. The circumstances of a case where there is no issue that an offence has occurred but the identity of the perpetrator is in issue may, necessarily, involve a significantly different balancing exercise from a situation, such as the present, in which the fundamental question is whether there occurred the conduct of which complaint is made. It is also different from the situation where the occurrence is said to have an innocent explanation. 117 While the identity of the perpetrator of an offence is technically always (subject to formal admissions and defences based on consent, capacity and the like) an issue, the Court in weighing the probative value of the evidence against its prejudicial effect should take account of the importance of the fact in issue in the determination of the guilt of the accused. 118 The circumstances of the previous conduct (the tendency conduct) adduced to prove, it is said, the commission of subsequent conduct (or facts which are relevant to that issue) necessitate the Court determining whether the commission of an offence some years previously rationally affects the probability that another offence will have been committed against a person of the same gender and age. More to the point, will that rational effect, if there were one, be significant? If each of those tests is satisfied, will that significant rational effect substantially outweigh the prejudice to the defendant in adducing that evidence? 119 The degree to which the probative value outweighs the prejudicial effect is required to be substantial. In this regard "substantial" is used to mean "large, weighty or big" and indicates an absolute significance (see Tillmanns Butcheries Pty Ltd v AMIEU infra). 120 In the comparison, in this case, between the tendency conduct, and that which is the subject of the charges against the appellant, there are a number of factors which diminish the probative value and, at the same time, seem to exacerbate its prejudicial effect. As previously stated, the sexual activity alleged in the tendency evidence is of two incidents over some months in a period of time some years prior to the allegations in question. There is no suggestion, as previously stated, that the offences (with the possible exception of Count 4) with which the appellant is charged related to conduct which was the same conduct as that which the tendency evidence alleged. The circumstances surrounding the tendency conduct and that which was alleged in the charges were different in relation to the privacy, or lack of it, in which the conduct was alleged to have occurred. 121 Even in relation to Count 4, the tendency evidence is inadmissible to prove the conduct in issue. "Because a person has been shown to have committed a sexual offence against a young child on one occasion does not necessarily mean that that person has committed every offence against such a child that is alleged." ( KRM v R (2001) 206 CLR 221 at [120]). That analysis is, a fortiori , appropriate when the major issue is not the identity of the perpetrator but whether any conduct occurred at all. Tendency or Coincidence 122 Ultimately, the tendency evidence went to a propensity to engage in criminal conduct of a sexual kind with a male person of the same age (and perhaps with an altar boy). It may be said by some that, in accordance with their human experience and/or common sense, that may be probative. It may give rise, they would say, to a greater probability that conduct by the appellant, of a similar kind, occurred and, possibly, that conduct of the kind alleged in the charges may have occurred. It can not be said, even assuming that the tendency conduct were proved beyond a reasonable doubt (which I must assume to be the case) that, the mere fact that there has been a transgression, with one other person, of the kind alleged in the tendency evidence, means that it is, therefore, significantly more likely that conduct alleged in the charges occurred; and, in the current circumstances, it could not be said that any such greater likelihood, if significant, outweighed the prejudicial effect on the appellant. 123 Otherwise expressed, the allegation in the charges is made by the complainant and is required, in the current circumstances, to succeed on that basis. The allegation of previous conduct (the tendency conduct) does not substantially and directly affect the dispute between complainant and appellant as to whether any sexual conduct occurred at all. 124 Tendency evidence is able legitimately to be used to prove that the appellant has a tendency to commit a crime of the kind and circumstances alleged. But in order to find the appellant guilty, there would need to be evidence that proves, beyond a reasonable doubt, that the alleged crime was committed. In the current proceedings, the evidence of that crime was given by the complainant and accepted by the jury. It would be impossible, given the nature of the allegation made here, to find that this crime had been committed against the complainant and not find that the appellant was the perpetrator. Therefore the identity of the perpetrator (and by deduction tendency evidence making the identification more probable) becomes of substantially less importance in the proceedings and the tendency evidence has far less significance when weighing it against the necessary prejudice. 125 On one view, at least, the basis of admission of the evidence (and possibly the rejection of other evidence relating to other incidents with other children) may have been misconceived because the trial judge was led into error by the basis, or primary basis, upon which the evidence was sought to be adduced. 126 The trial judge was asked, primarily, to admit the evidence on the basis of s.97 of the Act, which he did in relation to GG, to prove the conduct of the appellant when the major issue was conduct by any person. However, where that which is in issue is not the identity of the perpetrator but the happening of the event or conduct that was criminal, the tendency of the alleged perpetrator will less often meet the tests in the Act. Indeed, on one view, the tendency of the perpetrator may be irrelevant to that question. 127 Tendency evidence will be rationally probative of the fact that a particular person, out of the class of persons with opportunity, may have engaged in certain conduct. It will not, by proving the tendency of a particular person, prove, in the manner required to satisfy the admissibility tests required by the Act, that otherwise unproven conduct has occurred. To paraphrase the previously cited passage of Kirby J: "Because a person has been shown to have committed a sexual offence against a young child on one occasion, does not necessarily mean that that person has committed [an] offence against [every] such child that [alleges it]." 128 On the other hand, in those circumstances, it becomes necessary to examine the provisions of s.98 of the Act. It seems that which the jury is truly being asked to consider is the truth of the complaint and the issue is whether the other conduct makes the truth of this complaint and the happening of the conduct it alleges more probable. In that regard the evidence is sought to be adduced on the basis of that which, under the former common law principles, would be likened to "similar fact" evidence, not propensity evidence. It is not the propensity of the appellant to engage in conduct which is sought to be proven; it is the improbability of different complaints, which are untrue, being made coincidentally. As a consequence, the existence of the other conduct of the appellant is being used to prove that, because of the improbability of the events occurring coincidentally, the appellant did the act with which he is charged. 129 But properly analysed, the evidence of the other conduct does not render more probable the happening of the conduct charged, only the identity of the perpetrator if the conduct is otherwise proven. In reality, the evidence is sought to be used to show that the complainant is truthful. 130 In that regard, evidence that 2 or more events (being the complaints of sexual misconduct) occurred was sought to be used to prove that, because of the improbability of the events occurring coincidentally, the complainant is more likely to be telling the truth. But the events, about which complaint is made, are not related in the sense defined in s.98(1) of the Act. Nor, if it is the complaint to which one looks, have the complaints been made in similar circumstances. 131 In other words, the evidence, in these proceedings, of other conduct, rationally affects, insofar as it goes to the conduct of the perpetrator, not the identity, only the probability that the complainant is truthful. It is not tendency evidence on that issue. Nor, on that issue, is it coincidence evidence because the events (i.e. the complained conduct) are not related. But it may still be relevant to the credibility of the complainant. At that point, the exception in s.102 of the Act would need to be examined. 132 Section 102 of the Act provides that evidence that is relevant only to a witness's credibility is inadmissible. It does not provide that evidence that is relevant to another issue cannot be used to assess the credibility of that witness. Nor, one would imagine, could it. Evidence is used daily when admitted, for other reasons, to assess the credibility of witnesses. 133 More relevantly for the issues in this case, as the High Court in Adam v R (2001) 207 CLR 96 has made clear, s.102 of the Act does not require that the evidence is otherwise admissible, only that it is otherwise relevant. This has particular application when one is dealing with evidence that is said to be tendency or coincidence evidence. 134 Evidence that is relevant within the meaning of s.55, to either the occurrence of an event or the identity of the perpetrator (the major and a minor issues in these proceedings), but rendered inadmissible or unable to be used, by operation of either the requirement in s.97(1)(b) and s.98(1)(b) or the requirement imposed by s.101(2) of the Act, to prove tendency or lack of coincidence, is admissible for the purpose of assessing the credibility of a witness, subject to the provisions of s.137 of the Act. 135 Applying the above analysis to the current circumstances one is faced with the following scenario. Firstly, the evidence of prior conduct (previously referred to as either the tendency conduct or other conduct) is not admissible and may not be relevant to prove the occurrence of the conduct charged. Once the conduct charged has been proven (or is otherwise proven) in the proceedings, the prior conduct is relevant to the identity of the defendant although, given the degree to which that fact is in issue, may be inadmissible under the tests in s.97, s.98 and s.101(2) of the Act. It is also relevant to disprove an innocent explanation for the conduct in question, e.g. consent in sexual assault, accidental death, accidental fire etc, which issues do not arise in this case. However, once relevant to an issue, even though inadmissible, it may be used to assess the credibility of the complainant because, it is evidence that, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of a fact in issue in the proceedings. 136 Further, once the prohibition in s.102 of the Act does not operate, the prior evidence is admissible, subject to s.137 of the Act, to prove the greater probability of the truth of the complaint, or, otherwise expressed, the credibility of the witness. 137 The difficulty is that, in any such proceeding, the jury would need to be directed quite expressly on the use it could make, or not make, of the evidence of prior conduct. That direction would need to include: (a) that the evidence could not be used directly to prove the occurrence of the conduct alleged, which conduct is in issue; (b) that only if the jury were convinced beyond a reasonable doubt that the complainant was sexually assaulted in the manner alleged could the evidence be used to assess whether it was the appellant that committed the assault; and (c) the assessment of whether the sexual assaults occurred depends upon the jury's assessment of the credibility of the complainant and, for that limited purpose, the jury could have regard to the evidence of the prior conduct, if proved beyond a reasonable doubt, in assessing the likelihood that what the complainant said happened to him should be believed. 138 Even the use of the evidence of prior conduct for the purpose set out in paragraph 137(b) would be impermissible because the tests in s.98 and s.101(2) have not been satisfied. 139 In the current proceedings, the evidence would be admissible, subject to the operation of s.137 of the Act, only for the purpose expressed in the direction in sub-paragraph (c) above, because, as previously outlined, the evidence, although relevant, is not admissible under s.97 or s.98 and cannot be used, even if admitted, for that purpose or effect because of the operation of s.101(2) of the Act. It would be then extraordinary for the evidence, in those circumstances, to be admitted even on the narrower basis in paragraph (c) above.. 140 The trial judge has allowed the tendency evidence to be used in an impermissible manner and, even though it would, on the above analysis, possibly be admissible for a different use, it would need to be, and was not, subject to specific directions to the jury as to its use nor was it subjected to s.137 of the Act. 141 In its written submissions, the Crown relied upon the proviso in s.6(1) of the Criminal Appeal Act 1912 which submission was not developed orally. It is a submission which has a superficial attraction, given the nature of the evidence below, even without the tendency evidence or its use. Mr Barker QC for the appellant described it as an "impossible proposition". In circumstances where the jury has inappropriately utilised evidence which ought not to have been used in that way, in a manner which may have significantly affected the impact of the evidence of the complainant as to the conduct which is the subject of charges, it is inappropriate for the Court on appeal to take the view that "no substantial miscarriage of justice has actually occurred". This is a matter for a jury dealing with the evidence properly admitted after being properly instructed thereon. 142 There is clearly more than sufficient evidence upon which the appellant could have been convicted and, assuming the complainant were to be believed, would have been convicted. This is so even disregarding the evidence sought to be impugned in this appeal. The problem is that the effect of the tendency evidence admitted was to taint the deliberations of the jury by using the evidence in a manner it could not legitimately do. In those circumstances, the only proper course is for there to be a new trial on the charges. 143 In the circumstances, I propose that the orders be: 1. Appeal be allowed; 2. The conviction be quashed; 3. New trial be ordered. 144 Since writing the draft of the above, I have had the advantage of reading in draft the judgment of Simpson J with which McClellan CJ at CL agrees and it is necessary for me to state briefly the reasons that I am unable to agree with the orders her Honour proposes and the reasons for them. 145 The reasons fall into two broad categories: procedural and substantive. The procedural issues relate to the fact that the reasons for her Honour's judgment depend fundamentally upon an analysis of statements that are not before us. While it is the case that significant parts of the statements can be put together from the exhibit, which was the s.97 and s.98 notice, the entirety of each statement is not before the Court and, therefore, while we may reasonably infer that the remainder of the statement (being those parts of the document not subject to the notification) adds or subtracts nothing substantial from that which we have, we cannot be certain that such is the case. 146 Further neither the appellant nor the Crown had addressed the Court on these issues and the Court should, as a matter of discretion, given the appellant, at least, an opportunity to be heard on these aspects of the case and the use or content of the other statements. 147 The category of substantive reasons is, more complex and, in my opinion, even more problematic. The substantive issues require an analysis of the statements that his Honour below rejected (the other statements). The Statements Rejected 148 It is unnecessary to deal with each statement sought to be tendered as some are corroborative of other allegations. It is sufficient for my purposes to deal with the allegations. 149 Other than the evidence admitted by the trial judge being the allegations contained in the evidence of the complainant and GG, there are a number of other allegations. 150 The statements deal with each person's own relationship with the appellant and/or the relationship between the appellant and another. The statements allege that the appellant conducted himself in the manner described in Tendency Particulars (a) to (e) with a number of persons. There were conversations, it is alleged, as there were with the complainant and GG, relating to masturbation and a number of the statements deal with pornography being shown. I will assume, for the current purpose that the statements show that conduct alleged in Tendency Particulars (a) to (e) was general conduct of the appellant. Further I accept, for present purposes, that the other statements show that the appellant did the following things: had conversations with boys and girls about whether they were engaging in sex with the other gender; whether they were masturbating; showed them pornography (books, magazines and a movie); he took groups on camps during one of which there was, when there were only boys there, a nude race; on one occasion, it is alleged he shared a room (in which there was only one bed) with one boy for the night; and "as a bit of a joke" he grabbed at least one, perhaps more, boys on the penis from the outside of their pants, sometimes described as "squirreling". The last mentioned conduct was not, according to the statement, done in a manner which was "sinister or hidden" but as a joke. 151 One of the statements is to the following effect: "Although a lot of things he did and said are inappropriate, even more so for a priest, he was always able to do it in such a way that he was just like one of the boys so you dismissed it at the time." 152 There can be no doubt that if the extracts of the statements that we have seen are true, the appellant behaved not only inappropriately but illegally even by the standards of 20-30 years ago when this conduct is alleged to have occurred. But that is not the issue. 153 The only charges against the appellant do not relate to the conduct alleged but to far more serious matters. The alleged conduct above, while wholly inappropriate and reprehensible, shows, most starkly, that the Tendency Particulars (a) to (e) can occur in circumstances unrelated to sexual misconduct of the kind alleged in the charges. Indeed, notwithstanding the statement that the appellant spent nights with a child in bed at camp, there is no suggestion that there was any conduct during that period which was even inappropriate let alone criminal. It is not suggested that those nights alone in which no sexual misconduct occurred could be admitted and used to show a tendency to the opposite effect of that charged, i.e. not to do that which is charged. 154 The occurrence of conduct by the appellant, evidence of which conduct was sought to be adduced and used to prove a tendency to do that which is alleged in the charges in circumstances that are relevantly innocent, show, in my opinion, the danger in admitting any of the tendency evidence to prove the charges. By relevantly innocent, I mean not of the seriousness or genus of the charges laid. 155 Moreover, the more there was inappropriate sexually related conduct, even though relevantly innocent, the more likely, or possible, the risk of concoction based upon reputation and innuendo. Regardless of whether concoction becomes a greater possibility, the rejected material shows that the conduct described in Tendency Particulars (a) to (e), and even sexually explicit conduct of a different kind alleged in the statements, is more often, in the case of the appellant, consistent with behaviour not involving the conduct alleged in the offences and, therefore, the pattern of behaviour was not probative of the criminal acts alleged. 156 It is said that the evidence of GG (and perhaps other evidence) may be adduced and used to prove facts in issue other than the ultimate issue. However, the trial judge directed its use only on the ultimate question (see [90] and [91] infra) and it is unable to be used in that way. The Common Law Position 157 I agree with Simpson J that the common law principles on issues of the admissibility of tendency and coincidence evidence may be used as a guide in the evaluation of the admissibility of evidence even today. The Evidence Act is ultimately, a codification of or a reaction to the common law. In some areas, it is both. However, the terms of the Act and their proper construction, informed by the purpose of the Act including the common law history, are the primary consideration. I give one example. The Act (see [98] and [103] infra) makes all relevant material admissible. It excludes evidence of two or more related events, unless certain conditions are met, to prove lack of coincidence. It does not exclude two or more unrelated events being admitted for that purpose. But the section must be understood on the basis that it is predicated on the common law view that unrelated events are irrelevant for that purpose. 158 If the judgments that pre-date the Uniform Evidence Act were used as a guide, the argument to exclude this evidence becomes stronger. 159 The common law principles start from the position that tendency evidence will be excluded because of its inherent unfairness (see R v Perry (1982) 150 CLR 580 at 585) even though it is relevant. 160 The concern is the chain of reasoning that experience tells us is used to treat the evidence as proving an impermissible result. It is for this reason that s.102 of the Act refers to the use of the evidence rather than its admissibility. As Lord Hailsham put it: "What is not to be admitted is a chain of reasoning and not necessarily a state of facts. If the inadmissible chain of reasoning be the only purpose for which the evidence is adduced as a matter of law, the evidence is not admissible." ( DPP v Boardman at 453) That passage concerned evidence that did not meet the stringent tests for similar fact evidence. It is not to be taken as suggesting that the evidence must have some relevance other than propensity or similar facts (see Harriman v The Queen (1989) 167 CLR 590 at 613). 161 A number of the cases involve allowable propensity evidence because it is used to disprove innocent conduct or coincidence. It relies on the common experience that statistically such results cannot occur without a common cause: whether it is poisoning with cyanide; or fires destroying a business (see, for example, Noor Mohamed v The King [1949] AC 182). 162 Hoch v The Queen (1988) 165 CLR 292 followed, in time at least, DPP v Kilbourne [1973] AC 729 and DPP v Boardman [1975] AC 421. Each concerned sexual offences. Lord Wilberforce in Boardman stated the test ultimately applied by the High Court in Hoch. Lord Wilberforce said, at p.444: "The basic principle must be that the admission of similar fact evidence (of the kind now in question) is exceptional and requires a strong degree of probative force. This probative force is derived, if at all, from the circumstances that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence. The jury may, therefore, properly be asked to judge whether the right conclusion is that all are true, so that each story is supported by the other. I use the words 'a cause common to the witnesses' to include not only … the possibility that the witnesses may have invented a story in concert but also the possibility that a similar story may have arisen by a process of infection from media of publicity or simply from fashion. In the sexual field, and in others, this may be a real possibility …" 163 The above passage was cited with approval in Hoch (at 295 and 300). The joint judgment of Mason CJ, Wilson and Brennan JJ went on to say: "Similar fact evidence which does not raise a question of improbability lacks the requisite probative value that renders it admissible. When the happenings which are said to bear to each other the requisite degree of similarity are themselves in issue the central question is that of the improbability of similar lies …" (at 295) 164 All of the above cases were discussed by the High Court in Pfennig v The Queen (1995) 182 CLR 461 commencing primarily at p.475. Their Honours (Mason CJ, Deane and Dawson JJ) in summarising the Australian authorities (which largely, in turn, summarised or formed the basis of the English authorities) said: " … propensity evidence is not admissible if it shows only that the accused has a propensity or disposition to commit a crime or that he or she was the sort of person to commit the crime charged … It was also accepted that, in order to be admissible, propensity evidence must possess 'a strong degree of probative force' or the probative force … must clearly transcend the prejudicial effect of mere criminality or propensity." (p.480 – 481) 165 There is, in the matter now before the Court, insufficient pattern or underlying unity; there are no striking similarities or unusual features; and the two sets of offences alleged (i.e. against GG and the complainant) show no system such that the evidence of GG takes the matter beyond showing that the appellant has a propensity to commit acts of this kind, using "propensity" in the sense that would render the evidence inadmissible. 166 As to the statements rejected by the trial judge, they do not show a propensity to commit the acts alleged. They show a propensity to befriend youth and to act inappropriately. They also show, at least on a probability basis, that such inappropriate behaviour does not lead to or is not associated with acts of the kind alleged. The proof of befriending and inappropriate behaviour does not show a system leading to the acts charged; and is highly prejudicial. The trial judge was correct to reject them. Discretionary Judgment 167 There is some divergence in the authority as to whether the exercise of judgment in admitting or rejecting evidence of this kind is discretionary. The later authorities seem to suggest that approach. Toohey J in Pfennig seems to divide the process into 2 steps: the first step is whether (under the common law) the evidence is admissible based upon whether it has a sufficiently strong probative force (at 507); the second step is the exercise of discretion, notwithstanding the probative force of the evidence, to exclude the evidence because it does not outweigh its unfairly prejudicial effect. (See, however, Perry, supra, at 585.8) 168 Pfennig was decided without regard to the provisions of the Evidence Act. Sections 96, 98 and 101(2) of the Evidence Act are not expressed in terms usually associated with an exercise of discretion. Even s.137 of the Act stands, starkly in contradistinction to the terms of s.135, as other than an exercise of discretion. In my view there are more than sufficient errors of law already outlined for it to be unnecessary to determine, on any final basis, that question. Those errors of law, as I see them, would, in any event, satisfy the test in House v The King. 169 For the reasons expressed, I am unable to agree with Simpson J and adhere to the orders proposed by me at paragraph [143] that the appeal be allowed, the conviction be quashed and a new trial ordered. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.