Evidence of “uncharged acts” or other sexual conduct

The following article has been prepared by the Judicial Commission as a working paper on the High Court’s decision in HML v The Queen (2008) 235 CLR 334

[10-450] HML v The Queen — working paper

The phrase “uncharged acts” would not always, or even usually, be a helpful or desirable phrase to use in jury directions: per Gleeson CJ at [1], Hayne J at [129], Kiefel J at [492]. The phrase suggests that what is described could have been the subject of charges, which may not be right, and the description may invite speculation about why no charges were laid: per Hayne J at [129], Crennan J at [399], Kiefel J at [492]. The alternative most adopted appears to be “other sexual conduct”.

Evidence of other sexual conduct admissible as making it more probable that the accused committed the offence

(a) 

Relevant to establish

(i) 

motive — making more credible the complainant’s allegation that a particular sexual incident occurred, making it more probable the accused committed the offence charged: Gleeson CJ at [7], [11]; Hayne J at [158], with whom Gummow J at [41] and Kirby J at [46] agreed; Heydon J at [277]; Crennan J at [426], [430]; Kiefel J at [493], and a disposition of the accused to act on that motive frequently: Heydon J at [277], [282]

(ii) 

sexual interest/attraction to complainant — involving propensity or disposition which the jury may regard as bearing on the probability that the complainant’s evidence is true: per Gleeson CJ at [8]; Hayne J at [103], with whom Gummow J at [41] and Kirby J at [46] agreed; Heydon J at [103], [277], [282], [289], [345], [364], [371], [387], [392]–[393]; Crennan J at [426]; Kiefel J at [493], [498], [506], [512].

Such evidence is relevant whether it relates to a period before or after the offence charged: Heydon J at [279];1 and, although dependent on the evidence of the complainant, it may be used as a separate element in a course of reasoning towards guilt: Heydon J at [280]

(iii) 

showing state of mind negativing defence of accident — Crennan J at [430]; Kiefel J at [498]

(iv) 

grooming, to render it more likely that the offence charged took place — Heydon J at [364].

(b) 

Test for admissibility: Pfennig

It is important to keep distinct the issues of what direction should be given and what test should be applied to admissibility.

The directions were in general discussed in the terms of the purpose for which the evidence was tendered. In the case of HML, the evidence was tendered by the Crown for the purpose of demonstrating the accused’s sexual attraction for the complainant, denying that it was for propensity purposes. In the High Court, Gleeson CJ at [35], Crennan J at [480] and Kiefel J at [515] said that the judge had warned the jury against the use of propensity reasoning. Heydon J at [340] said that the jury was never informed of such a qualification, and he treated the evidence as demonstrating HML’s disposition to gratify his sexual attraction for his daughter. The view of Hayne J at [132], with whom Gummow J at [41] and Kirby J at [46] agreed, was that “[t]he evidence of other acts (other sexual conduct) is admissible if it meets the test in Pfennig”. It was therefore unnecessary for Hayne J to determine the use to which the jury was invited to use the evidence.

The judge’s task on admissibility In determining the admissibility of evidence of other sexual conduct, and thus whether its probative value outweighs its prejudicial effect:

  • Gleeson CJ It is only each element of the offence which must be proved beyond reasonable doubt, so that a particular fact need be proved beyond reasonable doubt only where it is the only evidence of the fact in issue or an indispensable link in a chain of evidence, and generally speaking, the indispensable link case apart, it is ordinarily neither necessary nor appropriate for a trial judge to give separate directions about the standard of proof of other sexual conduct: at [29], [32].

    In determining the admissibility of the evidence, the trial judge must first assume that the direct evidence of the offence is not accepted by the jury as sufficient by itself to establish the guilt of the accused and then ask him or herself, in accordance with Pfennig v The Queen, whether there is any rational view of that direct evidence and of the evidence of the other sexual conduct, taken together, that is consistent with the innocence of the accused. Where the evidence of other sexual conduct is led for the purpose of explaining that the complainant is not purporting to describe an isolated event or to explain his or her relationship with the accused, the test for admissibility of that evidence is whether the probative value of the evidence outweighs its prejudicial effect: at [24]–[27].

  • Heydon J agreed with Gleeson CJ that, in determining the admissibility of the evidence, the Pfennig test (if it applies) must be applied to both the direct and the other sexual conduct taken together. However, he found it unnecessary to determine whether the Pfennig test applies: at [283]–[289].2

  • Gummow, Kirby and Hayne JJ Whether or not the evidence of other sexual conduct is led to put the evidence of the charged offences into context, if the evidence describes or proves the “relationship” between the complainant and the accused, a Pfennig direction must be given. In determining the admissibility of the evidence, whatever the purpose for which it is led, the trial judge must consider the application of the Pfennig test to the other sexual conduct alone: Hayne J at [106], [113], [116]–[118], [132], [242], [244] with whom Gummow J at [41] and Kirby J at [46] agreed.

  • Crennan J Her Honour’s approach requires careful consideration. Her Honour makes the points at [462]–[463] that, in this case, the Crown case was not entirely circumstantial, and that the other sexual conduct was not led as the sole proof of either the elements of the offence or a fact or facts essential to proof of those offences. Next, her Honour states at [466] that, once a prosecutor demonstrates in any case that the evidence of uncharged acts has a relevance beyond merely demonstrating propensity and disavows use of the evidence as propensity evidence, the test for admissibility is the basic criterion referred to in Pfennig. Finally, Crennan J held at [455], [467] that Pfennig did not apply in relation to the uncharged acts (other sexual conduct) led in these three appeals, because in each case the evidence was led for purposes other than to establish propensity as proving an element of, or fact essential to, the offences charged.

    It is suggested that the total effect of these statements is that, where there is direct evidence of the offence charged, and where the evidence of other sexual conduct is not led in order to demonstrate propensity as proving an element of, or fact essential to, the offence charged, a Pfennig direction is not required in relation to the evidence of other sexual conduct either taken alone or taken together with the direct evidence. If no such direction is required in those circumstances, it would appear to be Crennan J’s opinion that the test for admissibility does not require the application of the Pfennig test in such circumstances either.

  • Kiefel J Her Honour’s approach also requires careful consideration. Her Honour says at [506], that evidence of other sexual conduct clearly involves the use of the accused’s tendency to engage in acts with the complainant such as those charged, and that, assuming that the jury does not accept the direct evidence of the offence charged, the case is a circumstantial one, and that in the ordinary course a jury would be instructed by the trial judge that they must only find that the accused has a sexual interest in the complainant if it is proved beyond reasonable doubt because that is an intermediate fact in such a case.

    Kiefel J at [507], describes the issue as to whether the Pfennig test applied in relation to admissibility as a “more difficult” question. Her Honour points out (at [509]–[510]) that the circumstances of these three appeals were very different from those in Pfennig (where the propensity evidence was led on the issue of identity), and that, in cases where the evidence led is relationship evidence (that is, other sexual conduct with the complainant), there will rarely be a case where an innocent explanation is left.

    In her summary at [512]–[513], Kiefel J repeated her view that such a sexual interest was an intermediate fact, and that the “usual directions with respect to the use of circumstantial evidence and clear directions as to proof of the sexual interest as an intermediate fact” were required. Admissibility of such evidence, she says, is:

    … conditioned by the requirement of a direction to the jury as to the limits on the use to which the evidence can be put. Where the direction is not considered sufficient to overcome the potential for misuse of the evidence, perhaps because of the nature of the evidence, it should not be admitted on this ground.

    Turning to the facts of the three appeals before the court, however, her Honour said at [512]:

    The need for and practical effect of the test for admissibility referred to in Pfennig does not suggest its application in cases such as these as obvious.

    It is suggested that the total effect of these statements is that, where the evidence is not being used for propensity purposes (as her reference, at [515], to the direction given to the jury against the use of propensity reasoning suggests was the case here), the Pfennig test is not applied in determining its admissibility.

    It is also respectfully suggested that the statement by Hayne J at [247] that Kiefel J had agreed that “[i]n the ordinary course a jury would be instructed by the trial judge that they must only find that the accused had a sexual interest in the complainant if it is proved beyond reasonable doubt” may be of little assistance in determining whether Pfennig must be applied on the admissibility of evidence of other sexual conduct.

    Evidence of other sexual conduct that would constitute an offence by the accused against the complainant will usually satisfy the Pfennig test because, in the context of the prosecution case, there will usually be no reasonable view of the evidence, if it is accepted, which would be consistent with innocence; there will be no reasonable view of this evidence other than as supporting an inference that the accused is guilty of the offence charged: per Hayne J at [107], [109], with whom Gummow J at [41] agreed; Kiefel J at [510]. The wider foundations for the admission of other sexual conduct would not ordinarily meet the Pfennig standard: per Kirby J at [60].

Specific bases for admissibility

(i) 

motive — need be proved beyond reasonable doubt only where it is an indispensable link: at [32] Gleeson CJ; [455], [467], [477] Crennan J.

Pfennig applies when evidence relied on as propensity: at [26] Gleeson CJ.

(ii) 

sexual interest/attraction to complainant — the majority on this issue, Gummow, Kirby, Hayne and Kiefel JJ, have held that such evidence must be established beyond reasonable doubt whatever its purpose, in the usual course: Hayne J at [247]. Hayne J cites the judgment of Kiefel J at [506] as supporting that proposition (but see above).

The sexual interest must be established beyond reasonable doubt:

  • whatever its purpose, at all times: Hayne J at [106], [113], [116]–[118], [132], [200], [242], [244], [247], with whom Gummow J at [41] and Kirby J at [46] agreed

  • whatever its purpose, in the ordinary course: Kiefel J at [506] (see comments above)

  • when relied on as propensity: Gleeson CJ at [26]

  • when relevance beyond merely demonstrating propensity: Crennan J at [466].

Evidence of other sexual conduct admissible for other purposes

(a) 

Relevance

(i) 

as explaining a statement or event that would otherwise appear curious or unlikely: Gleeson CJ at [6], Kiefel J at [494]

(ii) 

as affecting the plausibility of other evidence or to assess the credibility and coherence of the complainant’s evidence: Gleeson CJ at [6]; Hayne J at [155]–[156], with whom Gummow J at [41] and Kirby J at [46] agreed

(iii) 

as essential background against which the evidence of the complainant and the accused necessarily fall to be evaluated, to show the continuing nature of the conduct and explain the offences charged: Crennan J at [425], [431]

(iv) 

as providing a context, helpful or even necessary, for understanding the evidence: Gleeson CJ at [6]; Kiefel J at [494]

(v) 

to overcome a false impression that the event was an isolated one, that offence happened “out of the blue”, or to explain why complainant submitted, or why accused confident that she would submit or why she did not show distress or resentment or complain promptly, or to answer inferences against the complainant that might otherwise have been drawn by the jury: Gleeson CJ at [9]; Heydon J at [390]–[391], [394]; Crennan J at [431] where acts closely and inextricably mixed up with the history of the offence; Kiefel J at [499], [500], [513]

(vi) 

to ensure that jury not required to decide issues in a vacuum: Crennan J at [428]; Kiefel J at [498]

(vii) 

as negativing defences such as accident or mistake: Crennan J at [430]

(viii) 

part of res gestae: Gleeson CJ at [24]; Kiefel J at [495]–[497].

(b) 

Standard of proof where relevance other than propensity

must be established beyond reasonable doubt:

  • whatever its purpose, at all times: Hayne J at [106], [113], [116]–[118], [132], [200], [242], [244], [247], with whom Gummow J at [41] and Kirby J at [46] agreed

  • whatever its purpose, in the ordinary course: Kiefel J at [506] (but see [513]; “The judge’s task on admissibility”, above)

  • when relied on as propensity: Gleeson CJ at [26]

  • when relevance beyond merely demonstrating propensity: Crennan J at [466]

  • when led as sole proof by which the elements of the offence are to be proved: Gleeson CJ at [29], [32]; Crennan J at [462].

The judge must necessarily direct the jury that they must be satisfied beyond reasonable doubt about the truth of such evidence if they are to use it as a step in reasoning towards the guilt of the accused: Kirby J at [46], [83].

Need not be proved beyond reasonable doubt unless indispensable fact in reasoning towards guilt — Gleeson CJ at [32], [37]; Crennan J at [455], [477]; Kiefel J at [506], unless it demonstrates a sexual interest in the complainant when, in the ordinary course, it must be established beyond reasonable doubt.

Unnecessary to decide — Heydon J at [289], [339], [376], [395] — because Pfennig direction given in each case.

In particular, the mere fact that relevant evidence amounts to criminal conduct does not require a Pfennig direction to be given — Gleeson CJ at [31].

An associated issue — R v Nieterink (1999) 76 SASR 56; [1999] SASC 560

Six of the seven judges in HML gave consideration to the decision in R v Nieterink, in which it was held by the Full Court at [43]–[49], [83] that:

1. 

evidence of other sexual conduct led in evidence in order to understand the context in which alleged offences occurred — to explain how the complainant might have come to submit to accused on first charged occasion, why the victim might not have complained, or how the accused achieved the submission of the complainant — and is relevant as establishing a sexual attraction of the accused towards the complainant, and

2. 

that it is admissible without satisfying the test in Pfennig provided it is not used to establish by way of propensity that the accused was the offender or committed the offence charged, but

3. 

if the evidence is led as propensity evidence, Pfennig applies.

Gleeson CJ at [33] and Crennan J at [461] held that the decision was correct. Kiefel J said at [472] says that Nieterink does not really differ from R v Vonarx [1999] 3 VR 618, but her conclusion at [461] and [477] is consistent with Nieterink. On the other hand, Hayne J, with whom Gummow J at [41] and Kirby J at [46], [47] agreed said that Nieterink was not correct: at [164]. Heydon J said at [369] that it was unnecessary to decide.

Directions to be given

General and specific tendency

Where evidence is led in proof of a sexual attraction of the accused for the complainant in order to establish that, in relation to the particular incident on which the charge is based, he is more likely to have gratified that attraction on that occasion (thus satisfying the issue of relevance), it must be made clear that the jury should not reason that the accused is the sort of person who, because of a general tendency to sexually assault young children generally or to act in a criminal manner, would be more likely to have committed the offence charged. It is the specific sexual attraction he has for this particular offence that is relevant to proof that it was committed: Harriman v The Queen (1989) 167 CLR 590 at 630 McHugh J, following R v Bond [1906] 2 KB 389 at 401, approved in Wilson v The Queen (1970) 123 CLR 334 at 338 Barwick CJ, 344 Menzies J; HML v The Queen at [345]–[346] Heydon J, following R v BJC (2005) 13 VR 407; [2005] VSCA 154 per Byrne AJA at [37]. Crennan J also referred to a specific propensity at [436].

Application of HML to the Evidence Act All of the cases cited in HML are common law cases, but the test of relevance under s 55 of the Evidence Act is expressed in very similar terms as the common law test has been expressed in, for example, Martin v Osborne (1936) 55 CLR 367 at 375, where Dixon J said:

If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued.

This passage was cited in HML v The Queen by Gleeson CJ at [24] and by Hayne J, with whom Gummow and Kirby JJ agreed, at [155], and quoted in the same case by Crennan J at [452]. Gleeson CJ at [5] used the precise wording of s 55 to describe the issue of relevance at common law; Hayne J at [155] used similar terms, citing the passage from Martin v Osborne and s 55; see also Crennan J at [423]. In Goldsmith v Sandilands (2002) 190 ALR 370; [2002] HCA 31 at [2], Gleeson CJ quoted the definition of relevance in s 55 as representing the common law, stating (in n 2) that it was not materially different from that given by Sir James Stephen in his Digest of the Law of Evidence, 5th ed, Macmillan, London, (1887), Art 1 at 2, and adopted by McHugh J in Palmer v The Queen (1998) 193 CLR 1 at [55] (n 36).



1This is discussed more fully in R v Beserick (1993) 30 NSWLR 510 at 521 — the case which Heydon J cites, with a here irrelevant qualification — which was followed in Gross v Weston [2007] NSWCA 1 at [32].

2However, the Victorian Court of Appeal has interpreted the judgment of Heydon J as expressing the emphatic view that such evidence should not be received on a broader basis consistently with the view of Gummow, Kirby and Hayne JJ: R v Sadler [2008] VSCA 198 at [54]–[56].