Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Sokolowskyj v Regina [2014] NSWCCA 55 Hearing dates: 01/04/2014 Decision date: 15 April 2014 Before: Hoeben CJ at CL at [1] Adams J at [63] Hall J at [64] Decision: (1) The appeal is allowed. (2) The appellant's conviction on 3 August 2012 is quashed. (3) There should be a new trial. Catchwords: CRIMINAL LAW - conviction appeal - assault with an act of indecency upon a person under the age of 10 - whether tendency evidence properly admitted at trial - evidence relevant and capable of proving a tendency - the tendency specified was at a high level of generality - purpose of evidence to rebut likely challenge to Crown case - tendency evidence lacked "significant probative value" - probative value of tendency evidence did not substantially outweigh its prejudicial effect - tendency evidence should have been rejected - conviction quashed. Legislation Cited: Crimes Act 1900 - s61M(2) Evidence Act 1995 - s55, s97(1)(b), s101(2), s137 Cases Cited: DAO v R [2011] NSWCCA 63 DJV v R [2008] NSWCCA 272; 200 A Crim R 206 FB v Regina; Regina v FB [2011] NSWCCA 217 House v The King [1936] HCA 40; 55 CLR 499 Patel v The Queen [2012] HCA 29; 247 CLR 531 Pfennig v R [1995] HCA 7; 182 CLR 461 Qualtieri v The Queen [2006] NSWCCA 95; 171 A Crim R 463` R v Fletcher [2005] NSWCCA 338 R v Ford [2009] NSWCCA 306 R v GAC [2007] NSWCCA 315; 178 A Crim R 408 R v Watkins [2005] NSWCCA 164; 153 A Crim R 434 Regina v Linard Shamouil [2006] NSWCCA 112; 66 NSWLR 228 Townsend v Townsend [2001] NSWCA 136 Warren v Coombs [1979] HCA 9; 142 CLR 531 Category: Principal judgment Parties: Paul Lawrence Sokolowskj - Appellant Regina - Respondent Crown Representation: Counsel: Mr J Trevallion - Appellant Ms S Herbert - Respondent Crown Solicitors: SE O'Connor, Legal Aid NSW - Appellant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2011/078513 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-11-09 00:00:00 Before: Ellis DCJ File Number(s): 2011/078513 Judgment 1HOEBEN CJ at CL: Offence and sentence The appellant was committed for trial to the District Court sitting at Gosford on one count of assault with an act of indecency upon a person under the age of 10, contrary to s61M(2) of the Crimes Act 1900. On arraignment the appellant pleaded not guilty and his matter was listed for trial at the Gosford District Court on Monday, 20 February 2012. 2On Thursday, 16 February 2012 the trial date was vacated as the mother of the complainant had gone into premature labour. On 16 January 2012 the Crown served the defence with a Notice of Tendency Evidence. After the trial date was vacated, the pre-trial tendency argument was listed for Tuesday, 21 February 2012. The Crown served a fresh tendency notice on 21 February. 3On 21 February the matter proceeded before Ellis DCJ. His Honour gave judgment on 22 February 2012 allowing the Crown to rely upon the tendency evidence. The tendency relied upon by the Crown was that "the accused had a tendency at the relevant time to have sexual urges and to act on them in public in circumstances where there was a reasonable likelihood of detection". His Honour found that this tendency was established by the appellant's convictions in 2000, 2001 and 2003. 4The trial commenced on 30 July 2012 and closing addresses were made on 2 August 2012. His Honour's summing up commenced on 2 August and concluded on 3 August 2012. The jury returned a verdict of guilty on that same day. 5The issue at trial was whether the offence had occurred. The appellant denied committing the offence in an interview with the police on arrest. The appellant did not give evidence or call evidence at trial. 6On 9 November 2012 the appellant was sentenced by Judge Ellis to a term of imprisonment of 2 years and 6 months, commencing 9 November 2012 and expiring 8 May 2015 with a non-parole period of 1 year and 3 months expiring 8 February 2014. There was a direction that he be released to parole on that date. 7The appellant has appealed against his conviction. There is no appeal in respect of the sentence. 8The grounds of appeal are as follows: Ground 1 - The trial judge erred in ruling admissible the evidence relied on by the Crown as tendency evidence. Ground 2 - The admission of the tendency evidence resulted in a miscarriage of justice. Crown case 9The Crown case may be summarised as follows. Between 28 August 2008 and 6 May 2009 the appellant and his girlfriend, Ms Van Hout, took the complainant shopping at Westfield Tuggerah. While they were there, Ms Van Hout went into the ladies toilet. The appellant then took the complainant (aged 8 years at the time) into the parents' room, pulled down her pants and underwear and touched her vagina. He threatened her and told her not to tell anyone. Tendency evidence was tendered through the officer in charge of the investigation that showed that the appellant had a tendency to act on his sexual urges, when he was in public, when there was a reasonable likelihood of detection. This was done by way of agreed facts (exhibit J). 10The complainant's recorded interview with the police, dated 24 June 2010, was played to the jury and the jury saw copies of the transcript of the interview. The complainant told the police that she had accompanied her mother's friend, Missy, to the shops at Tuggerah. While they were there, Missy went into the toilet. While they were waiting for Missy, the appellant pulled her down a hallway and into the toilet and touched her "rude part". He told her not to tell anyone and said that he would do something to her mum, her house or her car if she did. 11The complainant was wearing jeans, a t-shirt, underwear and a jumper. She demonstrated on a diagram that the appellant touched her vagina. He pulled down her jeans and underwear and then touched her with his finger "underneath her undies". It happened for a short time. She was lying down on the chair and the appellant was standing up. The complainant said "stop it, I don't like it" and he said "make me". The appellant then unlatched the door and she ran out. She found Missy and they all went to the bottle shop and then they went back to the car and drove to her house. 12The complainant said that she did not speak about what had happened to anyone because she thought that it would start an argument. A few months before the police interview, the complainant told a neighbour, JH, about what had happened. JH then told the complainant's mother. The complainant subsequently told her father and her grandparents. 13The complainant's mother confirmed that on one Saturday morning, her friend Missy and the appellant visited the family house. That was sometime after the complainant's eighth birthday in August 2008. They came back about 1 - 1½ hours later. The family moved to Ourimbah in May 2009 and the complainant changed to a new school. 14On 31 March 2010 a neighbour, who was looking after the complainant, told the complainant's mother when she arrived home that the complainant needed to tell her something. As a result the complainant's mother rang her husband and told him what the complainant had said. Her husband took the complainant to the police station. This was the first time that the complainant had said anything about the incident. 15Ms Van Hout recalled an occasion when accompanied by the appellant she went to the shops at Tuggerah and the complainant asked if she could come along. They went to Target and then Ms Van Hout needed to go to the toilet. She left the appellant and the complainant in between the shops by a laneway while she went inside. She was in the toilet for about 5 minutes. When she came out they were not where she left them - they were then at the entrance to the women's toilets which was about 5 metres from where she had left them. She did not notice anything unusual about the complainant or the appellant. They all then returned home. 16Exhibit J was in the following form: "AGREED FACTS PURSUANT TO SECTION 191 EVIDENCE ACT 1995 For the purposes of these criminal proceedings, the abovenamed Accused upon the advice of his lawyer and the Crown have agreed upon the following facts pursuant to section 191 of the Evidence Act 1995 (NSW): 1. On 24 March 2000 a 15 year old girl was walking her dog along Koolang Road, Greenpoint near the Community Centre. The accused was standing near his motor vehicle having a cigarette. As the girl walked past the accused he pulled down the front of his tracksuit pants and exposed his penis to the girl. 2. On 2 May 2001 the accused was seen standing next to his motor vehicle parked about 10-15 metres away from the main entrance to the Gladesville Fitness Centre. At the time he was seen to have his fly to his trousers down and was masturbating his penis for about 30 seconds. At the time the accused was seen by a young female member of the gym and two female and one male employee. 3. On 16 September 2003 at about 6.15pm the accused was parked along a grass strip beside Townview Road, Mt Pritchard. His passenger side window was wound down. He had a sudden urge to masturbate, so he pulled down his tracksuit pants whilst still sitting in the driver's seat and started masturbating. At this time a 21 year old female who was walking her dog approached the vehicle. As she approached the vehicle the accused turned on the interior light. The female saw the accused was masturbating as she walked past the vehicle." Defence case 17The appellant denied that he touched the complainant's vagina. He could not remember taking her to Westfield. He argued that the complainant's evidence was inconsistent and unreliable. 18The appellant participated in a recorded interview with the police on 10 March 2011. In the interview he agreed that he knew the complainant and her parents. He used to work with her father at a carwash and lived with the family for a few months in their house in Wyoming. He said that he had never babysat the complainant, cuddled her or even taken her to the bathroom. 19He agreed that he had a sexual problem "years ago" when he exposed himself to women and was caught masturbating in public, but he did not have the urges anymore and had not had the urges since 2003. 20He said that it was not true that he dragged the complainant into the parent's room and rubbed her vagina. He was adamant that it never happened. He said that "I've never seen that corridor and I've never been in that corridor with [the complainant] and I don't recall the inside, most of all of any parent's room". He did not recall travelling with Ms Van Hout and the complainant in his red Corolla to Westfield Tuggerah. 21In relation to the offence, the appellant said: "It makes me sick, angry and I don't even know how to explain it half the time because it's that distressing. I don't know how anybody could do it, let alone to a child, to anybody. Like I said to you, I've made stupid mistakes when it comes to indecent exposure and I hold that and I'll honestly put that on the table and I take full blame that I was an idiot. I was an idiot and I was foolish and there's many other words that go along with that but this, yuck, no, no it's not me, no way. No, not [the complainant], not to any kid, I would not do it." Decision of Ellis DCJ to allow Crown to lead tendency evidence 22His Honour identified as a threshold question whether the tendency evidence was relevant pursuant to s55 of the Evidence Act 1995 (the Act), i.e. "could it rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue". 23His Honour next referred to the authorities as to what constituted "tendency evidence". In that context, his Honour had regard to the provisions of s97(1)(b) and s101(2) of the Act to the effect that the tendency evidence must have significant probative value and its probative value must substantially outweigh any prejudicial effect. His Honour reviewed the authorities on the meaning of the terms "significant probative value" and "prejudicial effect". 24His Honour identified the function which he had to perform as: "In summary this statutory regime, as set out in sections 97 through to and including 101 requires a court to conclude that the evidence either by itself or having regard to other evidence to be adduced has significant probative value. Further, s 101(2) requires a balancing process between probative force and prejudicial effect during which the court must make a judgment that probative value substantially outweighs prejudicial effect. There is little guidance as to the meaning of "substantial" but the Macquarie dictionary definition includes "real or actual, of ample or considerable amount and of real worth or value". In the event that the court is satisfied that the proposed evidence has significant probative value and that that probative force substantially outweighs any prejudicial effect it may have on the accused the court must still consider whether it is appropriate to limit the use made of such evidence pursuant to s 136 or whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused pursuant to s 137 of the Evidence Act 1995." (Interlocutory judgment 4.3) 25His Honour reviewed some of the authorities relating to "unfair prejudice" in s137 and noted that the "danger of unfair prejudice is lowered if clear and strong directions are given to the jury identifying the dangers and how the evidence can and cannot be used both generally and in the context of the particular case" (interlocutory judgment 5.4). 26His Honour referred to the observations of Simpson J (with whom McClellan CJ at CL agreed) in R v Fletcher [2005] NSWCCA 338 where her Honour said that a consideration of the admissibility of tendency evidence is a "predictive and evaluative" exercise, that it is a value decision upon which reasonable minds might differ and it is based upon information available to the court at the time the decision is made. 27His Honour set out the five steps identified by Simpson J in Fletcher as follows: (i) The court must determine whether the tendency is "capable of being ascribed probative value". (ii) The court must determine the extent to which the evidence has the capacity to affect the probability of the existence of a fact in issue. (iii) The court must assess and predict the probative value a tribunal of fact might ascribe to the evidence, i.e. the capacity of the evidence to have the effect specified. (iv) The court must refuse to admit the evidence if it concludes that the evidence either alone or in conjunction with other evidence, would not have significance (in the sense of important but not necessarily substantial) probative value. (v) The court must determine whether the probative value substantially outweighs any prejudicial effect it may have on the accused. 28His Honour took as a guide the observation of Whealy JA (with whom Buddin and Harrison JJ agreed) in FB v Regina; Regina v FB [2011] NSWCCA 217 at [24] where his Honour said: "24 More often than not, in a criminal trial, tendency evidence is placed before the jury as evidence tending to prove the guilt of the accused. However, evidence may be offered simply to show a tendency to act in a particular way, not necessarily in a criminal manner. Indeed, it is not necessary that the tendency [is] to commit a particular crime or, for that matter, to commit a crime at all. Section 97 applies to both civil and criminal proceedings. It represents a fresh start in relation to the issues involved in the categories of evidence known historically as propensity evidence and similar fact evidence. To assess whether evidence is capable of being admitted as tendency evidence, it is first necessary to consider the issues at trial, and the likely probative force of the evidence, having regard to those issues (Pfennig v R (1995) 182 CLR 461)." 29His Honour noted that the evidence of previous conduct upon which the Crown relied to establish a tendency was not in dispute. His Honour noted that although the Crown submission was that this material would lead a jury to conclude that the accused had a tendency at the relevant time "to have sexual urges and to act on them in public in circumstances where there was a reasonable likelihood of detection", the Crown did not submit that the previous conduct could establish that the accused had a tendency to indecently assault prepubescent girls. The Crown submitted that this tendency evidence was strongly supportive of the Crown case and that it bolstered the evidence of the complainant. The Crown submitted that it did so because if the accused had such a tendency, the evidence effectively negatived the likely criticism of the circumstances alleged by the complainant on the basis that they were so unlikely or unbelievable that they should not be accepted. 30By reference to the Crown case, his Honour said: "Based on these allegations it is clear that the circumstances were that there was a limited opportunity and that it was in a public place making detection reasonably likely had the complainant screamed or complained. If the Crown established that the accused had a tendency to act on sexual urges in public when detection was reasonably possible then that is relevant to whether he acted in that way on the day in question and indecently assaulted the complainant as she alleges. The Crown acknowledges that on the complainant's version, absent the tendency material, there is a strong argument available to the defence that the complainant's version is so unlikely as to be untrue or at least unbelievable to the requisite standard. This defence argument, it is said, would be based on the proposition that no sane person would indecently assault an eight year old girl in such circumstance, namely in public with a huge risk of detection, even if the child did not protest or do anything to attract attention." (Interlocutory judgment, 9.6) 31Against that background, his Honour summarised the probative value of the tendency evidence in this way: "It is in the context of this strong anti-Crown credibility argument that the Crown says the probative value of the proposed tendency evidence should be considered or assessed. It is said that if it were established that the accused had a tendency to act out his sexual urges, even in public places and even when detection was the reasonably likely outcome then the circumstances as alleged by the complainant would no longer be unbelievable. That is, her credibility would no longer be undermined by a defence argument that it was so unlikely as to unbelievable. His tendency to act in that manner would be capable of supporting the complainant's allegation." (Interlocutory judgment, 10.4) 32In relation to the possible prejudicial effect, his Honour said: "The Crown acknowledges that without direction a jury might misuse the tendency evidence by using it to prove that he has a tendency to indecently assault young girls. By concluding that he has been a sexual deviant in the past so must have committed the alleged offence. By responding in an emotional manner which would make it impossible for them to act objectively and fairly in their assessment of the evidence. However, the Crown submits that any and all possible prejudice can be remedied by appropriate jury directions. The Crown relies on cases such as R v Ford, R v DAO and R v Smith to establish that juries will follow direction and that even where tendency is strong and precisely the same as alleged in the trial, directions that clearly establish what can and cannot be made of the tendency evidence can dissipate any prejudicial effect." (Interlocutory judgment, 11.5) 33His Honour set out his conclusion as follows: "The tendency evidence the Crown seeks to lead before the jury is capable of being ascribed probative value as it has the capacity to affect the probability of the existence of a fact in issue. I am of the view that the evidence has significant probative value. Having regard to the judicial directions that will be given its probative value substantially outweighs any prejudicial effect." (Interlocutory judgment 12.5) Consideration 34The admissibility of the tendency evidence is relevantly governed by the following sections of the Act: "97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. ... 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. ... 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 35The dictionary to the Act includes: "Probative value of evidence" means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. 36Before this Court the parties accepted that the "tendency evidence" was relevant in accordance with the provisions of s55 of the Act. They also accepted that the "tendency evidence" did fit the description of such evidence in s97 in that it was evidence of the character or conduct or tendency of a person which was capable of establishing that a person had a tendency to act in a particular way. The issue between the parties was whether the evidence was capable, either by itself or by reference to other evidence, of having significant probative value and whether that probative value would substantially outweigh any prejudicial effect the evidence might have. It was also accepted by the parties that for the tendency to have "probative value" there was no need for the tendency to be to commit acts closely similar to those that constituted the crime charged (R v Ford [2009] NSWCCA 306 at [43] (Campbell JA with whom Howie and Rothman JJ agreed)). 37In Regina v Linard Shamouil [2006] NSWCCA 112; 66 NSWLR 228 Spigelman CJ (with whom Simpson and Adams JJ agreed) said in relation to the definition of "probative value": "61 In my opinion, the critical word in this regard is the word could in the definition of probative value as set out above, namely, "the extent to which the evidence could rationally affect the assessment ...". The focus on capability draws attention to what it is open for the tribunal of fact to conclude. It does not direct attention to what a tribunal of fact is likely to conclude. Evidence has "probative value", as defined, if it is capable of supporting a verdict of guilty. 62 This conclusion is reinforced by the test that evidence must "rationally affect" the assessment. As Gaudron J emphasised in Adam, a "test" of 'rationality' also directs attention to capability rather than weight." (See also R v XY [2013] NSWCCA 121; 84 NSWLR 363 Basten JA; Hoeben CJ at CL and Simpson J) 38As was set out by the trial judge, the probative value of the tendency evidence in this case, according to the Crown, was its capacity to effectively negative the very real criticism that the circumstances of the offence as alleged by the complainant were so unlikely or unbelievable as to leave a jury unable to accept her evidence. I do not understand the appellant to submit that the tendency evidence had no probative value. 39An issue in the appeal was whether the tendency evidence had "significant probative value". In R v Ford Campbell JA said: "50 The test for whether evidence not only has probative value, but also "significant probative value" was described by Lehane J in Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171 at 175-6. His Honour said that relevance was not enough, but rather it must be shown that the evidence "could rationally effect the assessment of the probability of the relevant fact in issue to a significant extent; ie, more is required than mere statutory relevance. 51 Similarly, in R v Lockyer (1996) 89 A Crim R 457 at 459 Hunt CJ at CL noted that the terms of the definition of "probative value" are substantially similar to those of the definition of "relevance" in the Act, and said: "... the probative value of evidence is the degree of its relevance to the particular fact in issue. There is no definition of 'significant' probative value as that phrase is used in s 97. In its context as I have outlined it, however, 'significant' probative value must mean something more than mere relevance but something less than a 'substantial' degree of relevance ... 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 to the significance (or importance) which that evidence may have in establishing that fact." Hunt CJ at CL in substance repeated that analysis in R v Lock (1997) 91 A Crim R 356 at 360-1. 52 For a judge to decide that evidence has "significant probative value" is, like the decision about whether the evidence has "probative value" at all, a decision about the reasoning processes that are open to a jury. 53 It has previously been observed that the generality with which a tendency is stated may be such that it provides a handicap to that evidence having "significant probative value": Townsend v Townsend [2001] NSWCA 136 at [78] per Giles JA (with whom Hodgson JA agreed); Ibrahim v Pham [2007] NSWCA 215 at [264] per Campbell JA (with whom Hodgson and Santow JJA agreed)." 40One of the difficulties for the Crown in establishing "significant probative value" was the high level of generality of the tendency relied upon. A tendency to have sexual urges was so general as to be meaningless. The additional qualification to that tendency, i.e. to have sexual urges and to act on them in public circumstances where there was a reasonable likelihood of detection, refined the concept but not greatly. Its generality was such as to attract the criticism made by Giles JA in Townsend v Townsend [2001] NSWCA 136 at [78] where his Honour said: "78 Assuming that the evidence was tendency evidence, it was admissible unless his Honour considered that it would not have significant probative value. His Honour considered that it did have significant probative value, although with a qualification which tended to cast doubt on that status. I am inclined to the view, still assuming that it was tendency evidence, that the evidence should have been rejected as not having significant probative value. So far as appeared, the circumstances of the respondent's conduct towards Mrs Townsend were very different from the circumstances in which the incident between the appellant and the respondent took place; certainly the evidence was of such generality that little meaningful tendency was established." 41Another difficulty for the Crown in establishing significant probative value for the tendency evidence was the marked dissimilarity between the conduct relied upon to establish the tendency and the offence under consideration by the jury. On the Crown case, key elements of the offence were a prepubescent victim and no public exhibition. The appellant is said to have latched the door to the change room (inferentially to achieve privacy) and then to have assaulted the complainant. The actions on which the tendency evidence was based had as their hallmark a public display with no prepubescent element in the victim. There was no active assault, rather the appellant's actions were "passive". Far from seeking to conceal his actions, the gist or thrill of the offences was the fact that they could be seen and were intended to be seen. 42In DAO v R [2011] NSWCCA 63 Simpson J (with whom Kirby and Schmidt JJ agreed) said in relation to that issue: "180 ... Similarity or dissimilarity in the nature of the conduct alleged is relevant to the assessment of both whether the evidence has probative value, and, if so, whether it is significant. If the evidence has significant probative value (and, in a criminal case, subject to s 101) it is admissible." 43I have concluded that the tendency evidence in this case did not reach the standard required for it to have "significant probative value". There is a large qualitative distinction between on the one hand offences of exhibitionism, involving either public masturbation or exposure of one's genitals, and on the other, engaging in non-consensual, physical contact with the genitals of an underage complainant. In relation to the actions on which the tendency evidence was based, public display was an essential ingredient and the sexual gratification or thrill was apparently achieved by such public exposure of his genitals to women. The offence under consideration was very different. The appellant is said to have taken steps to prevent discovery by latching the change room door and by warning the complainant not to tell anyone, otherwise he would take retributive action against her family. 44The flaw in the Crown case in support of the admission of the tendency evidence was that it failed to have regard to the fact that the evidence only had probative value if it increased the probability that the appellant committed the offence of indecently assaulting the complainant. In assessing the extent of the probative value of the evidence, the focus had to be on the fact in issue to which the evidence was said to logically relate. In that context, it was an error to generalise the conduct said to constitute the alleged offence in a way which removed the elements that made up the offence. In this case, the focus of the prosecution was on generalised sexual activity, which involved neither an assault nor a child. The focus of the tendency evidence should have been on the logical link to the elements of the offence charged, in this case involving both an assault and a child victim. The question was whether the evidence had "significant probative value" to prove the offence charged, i.e. indecently assaulting a young girl. 45It follows that the tendency evidence did not satisfy the requirements of s97(1)(b) of the Act. That is sufficient to resolve the appeal. 46To the extent that there was any doubt on that issue, it is resolved by the application of s101(2). I have concluded that the probative value of the tendency evidence did not substantially outweigh any prejudicial effect it might have on the appellant. 47The concept of "prejudicial effect" is understood in substantially the same way as "unfair prejudice". "Unfair prejudice" is used in s137, albeit with an emphasis on the way that the evidence "may" rather than necessarily will, impact adversely on a defendant. 48In the present case, one of the dangers of unfair prejudice was that the jury would use the evidence in the way they were directed not to use it - to show that the appellant was a sexual deviant who, as a result, was the sort of person who was likely to have committed the offence alleged against him. A second danger was that the jury would be so emotionally affected by the evidence that they would disregard the appellant's account in his police interview and disregard the directions to assess the evidence in an unemotional manner. A third danger was that the jury might be disinclined to give the appellant the benefit of any reasonable doubt. 49The danger of unfair prejudice has been variously described in the cases. In R v Watkins [2005] NSWCCA 164; 153 A Crim R 434 Barr J at [49] said: "50 ... a real danger that the jury's recognition of the appellant's prior guilt was likely to divert them from a proper consideration of the evidence as bearing on the question of his intent in the charges before them." 50In R v GAC [2007] NSWCCA 315; 178 A Crim R 408 Giles JA said at [83] that the primary danger was that, notwithstanding any directions given by the trial judge, "the jury might reason no more rationally than that, if the respondent molested [two other persons], he did the same to the complainant, and that emotion not rationality would govern". 51Another difficulty for the Crown in seeking to uphold the admission of the tendency evidence was that his Honour did not carry out the weighing exercise required by s101 of the Act. While he clearly considered the question of "probative value", he did not consider the essential question required by s97(1)(b) of whether the probative value of the tendency evidence was "significant". 52That error was compounded when his Honour came to consider the s101 question in that there was no attempt to assess the prejudicial effect of the tendency evidence and to balance that against its probative value. What his Honour did was to assume that a judicial direction to the jury designed to minimise the risk of unfair prejudice would be completely effective. He did that without ever having assessed the risk of unfair prejudice. 53This approach involved two errors of principle. The first and most obvious was a failure to carry out the weighing exercise required by s101. The second was of the kind identified by Giles JA (with whom Hulme and Hislop JJ agreed) in R v GAC where his Honour said: "87 The Crown further submitted that the judge was in error in not proceeding on the assumption that, if appropriate directions were given, the jury would act in accordance with the direction. It referred to McHugh J's emphasis in Gilbert v The Queen [2000] 201 CLR 414; 109 A Crim R 580 at [31] - [32] that the fundamental assumption of a criminal trial is that the jury acts on the evidence and in accordance with the directions of the trial judge. Prejudicial effect, however, is to be evaluated without such a foreclosing assumption, and his Honour's remarks were not directed to the present situation. ... 89 It was well open to the trial judge to see a real risk of unfair misuse of the tendency evidence, and to conclude that directions could not be given which would satisfactorily prevent it. ...." 54In Qualtieri v The Queen [2006] NSWCCA 95; 171 A Crim R 463 McClellan CJ at CL (with whom Howie and Latham JJ agreed) said at [80] that "prior illegal acts by the accused, especially where the charges relate to alleged sexual acts ... would inevitably be prejudicial". In DJV v R [2008] NSWCCA 272; 200 A Crim R 206 (which involved evidence of uncharged acts of child sexual abuse) McClellan CJ at CL (with whom Hidden and Fullerton JJ agreed) said at [31]: "31 ... The risk in a particular case of an impermissible course of reasoning by the jury which cannot be averted by directions must be a consideration when determining whether the evidence should be admitted." 55In Patel v The Queen [2012] HCA 29; 247 CLR 531 the plurality (French CJ, Hayne, Kiefel and Bell JJ) said: "113 Despite the fact that the trial judge gave careful and succinct directions as to some of the most prejudicial evidence, such as evidence of errors in surgery, it cannot be concluded that the directions were sufficient to overcome the prejudicial effects of the evidence, individually and collectively, upon the jury. The misgivings his Honour recorded in his ruling on the application to discharge the jury were well-founded. ... 128 ... In the present case, no weight can be given to the verdicts of guilty for the reason that so much irrelevant or unnecessary and prejudicial evidence was before the jury. The miscarriage of justice was grounded in the nature, significance and extent of the evidence to which the jury had been exposed. It would be expecting too much of a jury to attend to its task of determining the appellant's guilt on the four charges on the basis only of the appellant's judgment about whether to operate, putting to one side all that it had seen and heard concerning his competencies in other areas and his deficiencies as a person. ... 129 ... However, any consideration of the effect upon the jury's ability to undertake its now more confined task must take account of the evidence as a whole. The sheer extent of the prejudicial evidence in the context of a wide-ranging prosecution case is likely to have overwhelmed the jury. The jurors were not given directions that they must exclude much of it from their minds. In practical terms any such directions would have been useless." 56A further consideration is this. An assumption that a judicial direction to the jury designed to minimise the risk of unfair prejudice will be completely effective would effectively prevent s101(2) operating as a safeguard against the potential risk of miscarriages of justice arising from the admission of tendency evidence. In the present case there was a real risk that, notwithstanding directions to the jury, the jury would see the appellant as a sexual deviant who had no credibility in denying the allegation against him, was not deserving of the benefit of any reasonable doubt and was the sort of person who was likely to have committed the offence alleged against him. 57Members of the jury might have so proceeded subconsciously, even accepting that they would have tried to follow the directions given to them. Had his Honour carried out the weighing exercise required by s101, he should have concluded that the probative value of the evidence was not high and that it was substantially outweighed by the risk of unfair prejudice. In that regard, the observations of McHugh J in Pfennig v R [1995] HCA 7; 182 CLR 461 at 528 - 529 are pertinent: "39 ... the proposition that the probative value of the evidence must outweigh its prejudicial effect is one that can be easily misunderstood. The use of the term "outweigh" suggests an almost arithmetical computation. But prejudicial effect and probative value are incommensurables. They have no standard of comparison. The probative value of the evidence goes to proof of an issue, the prejudicial effect to the fairness of the trial. ... If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial." 58An issue arose in the appeal as to whether there should be an adjournment and a bench of five constituted to consider the related question of what test should be applied when an appellate court reviews the application of ss97 and 101 of the Act. In his submissions in reply, the appellant had identified the difference of opinion in this Court most recently referred to by Simpson J in DAO v R in relation to its approach to those sections on appeal. One line of opinion was that decisions under those sections were discretionary decisions and accordingly there should only be appellate intervention if a House v The King [1936] HCA 40; 55 CLR 499 error could be identified. The other line of authority was that the test for appellate review is that stated in Warren v Coombs [1979] HCA 9; 142 CLR 531. 59The Court refused the application. It did so because this matter was not an appropriate vehicle for such an analysis. The basis for that conclusion was that the error in the trial judge's approach in failing to weigh the probative value and unfair prejudice, and in assuming without analysis that directions to the jury would be capable of eliminating unfair prejudice, constituted a House v The King error. In those circumstances, the higher test was satisfied so that this Court could re-exercise his Honour's discretion in relation to ss 97 and 101 in any event. 60The error in admitting the tendency evidence was such that injustice has resulted and the appellant's conviction must be quashed. 61The orders which I propose are: (1) The appeal is allowed. (2) The appellant's conviction on 3 August 2012 is quashed. (3) There should be a new trial. 62Since the appellant has already served the non-parole portion of his sentence of imprisonment, it is a matter for the prosecuting authority as to whether it wishes to undertake a new trial. 63ADAMS J: I agree with Hoeben CJ at CL. 64HALL J: I agree with Hoeben CJ at CL. ********** 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. Decision last updated: 15 April 2014