A Tendency to Convict
| Date | 01 April 2018 |
| DOI | 10.1177/1365712718765566 |
| Author | Pearl Davidson |
| Published date | 01 April 2018 |
| Subject Matter | Articles |
Article
A Tendency to Convict:
Section 97 Evidence Act in
Hughes vThe Queen
Pearl Davidson
University of Sydney, Sydney, NSW, Australia
Abstract
This case note examines the High Court of Australia’s determination in Hughes vThe
Queen that tendency evidence can have significant probative value, and therefore be
admissible, even if such evidence does not share close similarities with the facts in issue.
While the case involved allegations of child sexual assault, the principle will apply to all
criminal and civil cases under the Australian Uniform Evidence Acts. This case note argues
that the Hughes decision is appropriate as a matter of statutory interpretation and in the
context of child sexual assault cases. It also positively increases uniformity between
Uniform Evidence Act jurisdictions where there had previously been diverging approaches
astothedegreeofsimilarityrequiredfortendency evidence to have significant probative
value. However, it is more questionable whether the decision should apply equally to
other criminal and civil cases.
Keywords
Hughes, tendency evidence, significant probative value, similarity, child sexual assault
Introduction
In Hughes vThe Queen,
1
the High Court of Australia (‘HCA’) held by majority that tendency evidence
can have significant probative value even if it is not closely similar to the facts in issue. This decision
was in the context of the high-profile child sexual assault trial of Robert Hughes, former star of the Hey
Dad ...! television show. Specifically, tendency evidence given by five complainants and other
Corresponding author:
Pearl Davidson, University of Sydney, C/o 8/174 Phillip St, Sydney, Sydney, New South Wales 2000 Australia.
E-mail: pdav6792@uni.sydney.edu.au
1. Hughes vThe Queen (2017) 344 ALR 187 (‘Hughes’). As at 26 February 2018, this decision has not been published in the
Commonwealth Law Reports.
The International Journalof
Evidence & Proof
2018, Vol. 22(2) 144–160
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DOI: 10.1177/1365712718765566
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tendency witnesses had significant probative value in proving that Hughes had a tendency to engage in
sexual acts with young girls opportunistically, with an unusual disinhibited indifference to the high risk
of detection. The tendency evidence was therefore admissible under s. 97 Evidence Act 1995 (NSW).
After outlining the facts, context and procedural history of Hughes, the case note analyses the
HCA’s decision, concluding that the majority’s approach in not making similarities determinative
under s. 97 is correct as a matter of statutory interpretation. The majority’s decision also helpfully
demonstrates that tendency evidence can have significant probative value despite differences in
complainants’ accounts because it makes it less likely that the complainants fabricated their evidence.
Furthermore, the decision accords with research regarding the patterns of behaviour of child sexual
offenders.
The final section discusses implications from the majority’s decision. At least in Victoria, the
decision is significant in lowering the bar to admissibility under s. 97. However, the lower standard
of admissibility is tempered by the s. 97 threshold remaining higher than mere relevance and by the
operation of s. 101 in criminal cases. The decision positively makes the interpretation under s. 97 in
Uniform Evidence Act jurisdictions more consistent. Yet the absence of a clear test applicable in
situations where there is no opportunistic conduct or disregard to the risk of detection means that law
reform is necessary to clarify these uncertainties. This could include the Royal Commission’s recent
reform recommendations for child sexual offences, but these reforms should not be implemented more
broadly without proper consideration of whether such changes are appropriate for all s. 97 cases.
Background to the High Court Appeal
Facts and relevant procedural history
In 2014, Hughes stood trial for 11 sexual offences committed against five female children between 1984
and 1990.
2
The Crown gave notice
3
of their intention to adduce evidence of charged and uncharged acts
by the complainants, plus evidence of six witnesses, as tendency evidence in relation to all the charges.
4
Evidence that a person has a tendency to act in a particular way or to have a particular state of mind is
important in providing the foundation for an inference that the person was more likely to act in a
particular way or have a relevant state of mind on the occasion the subject of the charge or charges.
5
Counts 1 and 2 occurred when Hughes allegedly digitally penetrated the complainant JP’s vagina
when she was 14 or 15 years old.
6
Both incidents occurred at JP’s home when she was asleep. In Count 1
JP was sharing a bed with Hughes’ daughter, while in Count 2 she was sleeping alone.
7
Counts 3 to 6
occurred when the complainant, SH, then aged between six and eight,
8
was asleep on the floor in
Hughes’ daughter’s room. Hughes’ daughter was also asleep at the time.
9
Hughes allegedly placed SH’s
hand on his penis and ejaculated, covering the outside of SH’s vagina with ejaculate.
10
Counts 7 and 8 occurred when Hughes, his daughter and the complainant AK were at the beach. On
Hughes’ encouragement, AK swam beneath Hughes’ legs, whereby Hughes allegedly exposed his penis
2. RvHughes (Judgment on the Admissibility of Tendency Evidence) (Unreported, District Court of New South Wales, Judge
Zahra, 14 February 2014), 1–2 (‘RvHughes’); Hughes at 190 [3]–[4].
3. This satisfied the requirements in Evidence Act 1995 (NSW), s. 97(1)(a).
4. Hughes vThe Queen (2015) 93 NSWLR 474 at 502 [118].
5. IMM vThe Queen (2016) 257 CLR 300 at 328 [104]; Elomar vR(2014) 316 ALR 206 at 278 [359]–[360]; Gardiner vThe
Queen (2006) 162 A Crim R 233 at 260 [124]; FB vR; R vFB [2011] NSWCCA 217 (30 September 2011) [23]; Hughes vThe
Queen [2015] NSWCCA 330 (21 December 2015) at [160]–[161].
6. RvHughes at 10–11; Hughes at 217 [121]–[122].
7. RvHughes at 10–11; Hughes at 200 [44].
8. RvHughes at 2.
9. Ibid. at 14–15.
10. Ibid. at 15.
Davidson 145
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