Hughes v The Queen
High Court of Australia · 2017
Hughes v The Queen (2017) 263 CLR 338
The prosecution wants the jury to use evidence about other things the accused is said to have done. How alike do those other things have to be before it can reason that way?
In New South Wales the ordinary statutory assessment under s 97(1)(b) that Hughes describes has been modified for one category of case by s 97A of the Evidence Act 1995 (NSW), inserted in 2020. Where the commission of a child sexual offence is a fact in issue, s 97A(2) PRESUMES that tendency evidence about the defendant's sexual interest in children, or about acting on such an interest, has significant probative value -- and s 97A(3) applies that whether or not the interest or act was directed at a complainant in the proceeding. A court may still find the evidence lacks significant probative value if satisfied there are sufficient grounds (s 97A(4)), but s 97A(5) removes from that assessment, absent exceptional circumstances, SEVEN matters -- exactly the ones an accused would press: (a) the tendency act differs from the alleged act, (b) the circumstances differ, (c) the personal characteristics of the subject differ, (d) the relationship differs, (e) the period of time between them, (f) the two "do not share distinctive or unusual features", and (g) "the level of generality of the tendency to which the tendency evidence relates". The Australian Capital Territory has enacted a provision in the same terms, s 97A of the Evidence Act 2011 (ACT). So where a statutory presumption of this kind applies, start with it rather than with Hughes; Hughes governs the s 97 assessment in proceedings and jurisdictions where no such presumption applies.
Hughes's observation about similarity where identity is in issue is narrower than it reads. Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ say it "should be understood as postulating a situation in which there is little or no other evidence of identity apart from the tendency evidence, and the identity of the perpetrator is 'at large'" ([30]). Where there is other important identification evidence, the threshold may be met "without the close similarity insisted upon by the appellant" ([38]). Their Honours also warn that requiring the tendency to distinguish the accused from the other potential perpetrators "tends to conflate probative value and proof", and restate the Hughes two-step ([31]).
What happened?
Hughes was tried on counts of sexual offences against several young complainants. The prosecution wanted each complainant's evidence to be used in support of its case on every count, reasoning from a tendency: that a man of mature years had a sexual interest in girls under 16 and a tendency to act on it "opportunistically, notwithstanding the risk of detection" ([2]).
What s 97 controls is whether the jury may reason from evidence as tendency evidence, and that requires the court to be satisfied it has significant probative value. Where the evidence is tendered only for that purpose, failing s 97 keeps it out altogether; where it is independently admissible for another purpose the jury may still hear it, with the tendency use restricted under s 95.
What did the Court decide?
The appeal was dismissed. Kiefel CJ, Bell, Keane and Edelman JJ formed the majority; Gageler and Nettle JJ each wrote separately in dissent, Gordon J agreeing with their orders. The question was whether proof of that tendency "is capable of having significant probative value on his trial for a sexual offence involving an underage girl. The answer is that, in a case in which the complainant's evidence of the conduct the subject of the charge is in issue, proof of that tendency may have that capacity" ([2]).
Note what kind of case that is. "In the trial of child sexual offences, it is common for the complainant's account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted." Where that is the challenge, proof that the accused is sexually interested in children and acts on that interest "is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded" ([40]).
Proposition
What is the principle?
Tendency evidence has significant probative value under s 97(1)(b) where it could rationally affect the assessment of the probability of a fact in issue to a significant extent — the disputed evidence "should make more likely, to a significant extent, the facts that make up the elements of the offence charged" ([40]). Two interrelated matters must be assessed: "[t]he first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence" ([41]). Section 97(1) "does not ... condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue" ([39]); how much similarity matters depends on the issue the evidence is adduced to prove.
Their Honours add both a warning and a limit: "[b]y seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as 'underlying unity', 'pattern of conduct' or 'modus operandi'" ([41]). And generality is not a solution: "[a] tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish" the charged facts to the required extent ([64]).
Why does this case matter?
Because of what the ruling permits in practice. On this reasoning a jury hearing several complainants may use each account in deciding every count — which is why the threshold, and not the tendency label, is what the contest in these trials is really about, and why the argument is almost always run before the jury is empanelled rather than at the end.
It is also a case where the Court divided three ways on how high the bar sits, with Gageler J grounding his dissent in the cognitive bias that tendency reasoning invites ([70]-[73]). If you are asked whether the threshold is set correctly rather than what it is, that disagreement is the material.
Exam and application relevance
Write out the tendency in the terms the prosecution has actually formulated, because both halves of the assessment are measured against that sentence. Then do them in order: how strongly does the evidence support that tendency, and how strongly does that tendency support the charged facts? Resist the temptation to solve the first by broadening the tendency — that only weakens the second.
Identify the issue before you argue similarity, and do not overstate what turns on it. Hughes says probative value will "almost certainly" depend on close similarity where identity is in issue, but TL v The King reads that as addressed to the case where identity is "at large" and there is little other identification evidence. Where other evidence identifies the accused, the threshold may be met without close similarity. So say what else is in the case before you make similarity decisive.
And check the jurisdiction. In New South Wales and the Australian Capital Territory, s 97A now presumes significant probative value for tendency evidence about a defendant's sexual interest in children in a child sexual offence proceeding, and restricts the grounds on which that presumption can be displaced. Where such a provision applies, the Hughes assessment is the fallback, not the starting point.
Check your understanding
Two prosecutions assert a tendency from the same prior acts, one narrowly and one broadly. Which of the two halves of the assessment does each formulation help, and which does it hurt?