R v OQM[2025] QDCPR 44

1. [1]
   The defendant is charged on an indictment alleging that, on a date unknown between the 1^st day of January 1987 and the 17^th day of July 1989 at Alexandra Hills in the State of Queensland, he had carnal knowledge of HEW against the order of nature.  The Crown has filed an application seeking a ruling that certain propensity evidence sought to be led by the Crown is admissible.
2. [2]
   The evidence sought to be led is identified as evidence of “conviction, and facts pertaining to the conviction of” counts 2 and 3 on indictment 1260/12 relating to a victim BIF, and the conviction of the defendant on counts 1, 2 and 3 of indictment 685/12 relating to a victim GOH and relating to the conviction of the defendant on count 1 of indictment 686/12 relating to the victim then known as TID.
3. [3]
   The defendant was convicted in this court after trial of the offences relating to BIF and subsequently entered pleas of guilty in relation to the offences against GOH and TID.  The Crown seeks to lead the evidence of those offences against those three complainants as propensity evidence in the trial of the defendant on the charge of offending against HEW.
4. [4]
   There is a recent and helpful discussion of the applicable law in the decision of the Court of Appeal in R v HCR; Ex parte Director of Public Prosecutions (Qld) [2024] QCA 192 in the reasons of Burns J, with whom the President and Bond JA agreed, at paragraphs [29] to [33] (footnotes as per original): 

   29. [29]
       As the Court observed in R v LBE,^[18] mere relevance of the evidence of other complainants is an insufficient justification for admissibility in a case such as this. That is because the admission of similar fact evidence is exceptional and requires a strong degree of probative force to justify its admission despite its highly prejudicial effect.^[19] Indeed, the evidence must have such probative force that when considered with the other evidence there remains no reasonable view of it consistent with the innocence of the accused.^[20] It is for this reason that a “particular evaluative assessment”^[21] must be made of the probative force of the evidence in order to determine whether the evidence of other complainants is cross-admissible. As to that:

“The label which is placed on the impugned evidence is not the important consideration. The important consideration is the clear identification of how the impugned evidence is said to be relevant, so as to permit the requisite evaluative assessment of its probative force when tendered for that purpose.”^[22] [Emphasis in original]

30. [30]
    In that regard, there are several different purposes for which this kind of evidence  might in any given case be led,^[23] and the various categories in that regard should not be regarded as closed.^[24] It is also not the case that the evidence may be tendered for only one such purpose.^[25] Among the possibilities are two well-recognised categories of purpose – “coincidence evidence” and “tendency evidence” – to borrow for descriptive convenience from the language of the Uniform Evidence Acts.^[26]
31. [31]
    Coincidence evidence derives its probative force from the coincidence of circumstances of the offending against each complainant.^[27] There must be such similarity, distinctiveness, underlying unity or connection in the acts making up the alleged offending as to compel the conclusion that there is no reasonable view of them consistent with the innocence of the accused.^[28] As such, when evaluating evidence tendered for this purpose, the focus is on the particular acts – or operative features – constituting the offending across the complaints. On the other hand, the probative force of tendency evidence is to be found in the tendency itself, that is to say, a tendency to engage in particular conduct or in accordance with a particular state of mind. When evaluating evidence tendered for this purpose, the focus is on whether the accused behaved consistently with the alleged tendency and to such a degree that there is no reasonable other view of that evidence consistent with the innocence of the accused. Importantly to a consideration of this reference, that the accused may have acted on an alleged tendency in different ways across the complaints will not of itself deprive the evidence of it probative effect.
32. [32]
    This very point was decided in Hughes v The Queen.^[29] There, the majority (Kiefel CJ, Bell, Keane and Edelman JJ) held it wrong to assume the probative value of tendency evidence lies in the degree of similarity of “operative features” of the facts that prove that tendency.^[30] Tendency evidence should not be “confined to a tendency to perform a particular act”.^[31] To the point, depending upon the issues in the trial, a “tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it”.^[32] On the facts of that case, the evidence was capable of proving that the appellant was “a person with a tendency to engage in sexually predatory conduct with underage girls as and when an opportunity presented itself in order to obtain fleeting gratification, notwithstanding the high risk of detection”.^[33] The majority said this about the proper assessment of the probative force of such evidence:

“An inclination on the part of a mature adult to engage in sexual conduct with underage girls and a willingness to act upon that inclination are unusual as a matter of ordinary human experience. Often, evidence of such an inclination will include evidence of grooming of potential victims so as to reveal a ‘pattern of conduct’ or a ‘modus operandi’ which would qualify the evidence as admissible at common law. But significant probative value may be demonstrated in other ways. In this case the tendency evidence showed that the unusual interactions which the appellant was alleged to have pursued involved courting a substantial risk of discovery by friends, family members, workmates or even casual passers-by. This level of disinhibited disregard of the risk of discovery by other adults is even more unusual as a matter of ordinary human experience. The evidence might not be described as involving a pattern of conduct or modus operandi – for the reason that each alleged offence involved a high degree of opportunism; but to accept that that is so is not to accept that the evidence does no more than prove a disposition to commit crimes of the kind in question.”^[34]

33. [33]
    The logic underlying this reasoning has been repeatedly held by this Court to be equally applicable under the common law in Queensland.^[35] For present purposes, though, it is sufficient to state that the “particular evaluative assessment”^[36] needed to assess the probative force of the evidence in question in this case required a focus on the alleged tendency and not the similarity of the operative features by which that tendency was identified. The Crown made plain what was alleged in that respect – a “tendency to have a sexual interest in pre-pubescent to early pubescent girls and to engage in sexual touching of them using his position as a judo instructor to gain access to them” – along with the facts on which they intended to rely to prove this tendency^[37] and the features across the four complaints which, it was submitted, demonstrated the alleged tendency.^[38] The probative value of the evidence lay in proof of the respondent’s tendency to act in a way that is unusual as a matter of ordinary human experience, that it is say, in accordance with the alleged tendency. That he may have done so in a variety of different ways is neither here nor there when assessing this category of purpose. The critical considerations are whether the evidence relied on by the Crown supports the alleged tendency and the extent to which the tendency, if proved, makes more likely the happening of the acts said to constitute the offences charged on the indictment. Put another way, the true force of evidence of this type (if accepted) is to render the commission of the offence under consideration more probable because evidence of acts of other offending demonstrates that the accused had sexual urges of a particular bent which he was prepared to act on.^[39]

5. [5]
   The probative value of the evidence sought to be led by the Crown in this case lies in proof of the defendant’s tendency to act in a way that is unusual as a matter of ordinary human experience in accordance with the alleged tendency. That he may have done so in a variety of different ways is neither here nor there when assessing such category of purpose of admission of the propensity evidence – see paragraph [33] above. The probative value of the evidence in this case is in proof of the defendant’s tendency between 1987 and 1993 to sexually offend against boys. In particular, the probative value of the evidence lies in it proving that the defendant had an unusual sexual attraction to boys that he was prepared to act upon by committing sexual acts, including sodomy, upon such boys at his residence at [redacted].
6. [6]
   The evidence possesses that strong probative force necessary to ground its admissibility according to the Pfennig test, notwithstanding the differences in the facts of offending and circumstances of offending against the propensity witnesses and the complainant in this trial. The probative value lies in proof of the defendant’s tendency to act on his sexual attraction to young boys.  That he did so in a variety of different ways does not deprive that evidence of its significant probative effect, nor does the other differences between the circumstances of the offending against the complainant and his offending against the other victims, as detailed in the careful submissions on behalf of the defendant and as summarised in annexure B to the outline of submissions on behalf of the defendant.
7. [7]
   I have paid careful attention to those submissions and those differences, including the most significant difference, which is that the complainant in this matter is alleged to have been offended against when he was aged nine to 10 years, whereas the other boys were offended against when they were aged respectively between 11 and 15 years, 14 and 15 years, and 15 and 16 years.
8. [8]
   The differences in the facts of the offending and the circumstances of the offending against the other victims and that alleged against the complainant in this matter are not such as to deprive the evidence of the requisite probative value to ground its admissibility – contrast R v CDA (2022)13 QR 62. 
9. [9]
   In HCR in the passages quoted above and in R v LBE [2024] QCA 53 cited therein, the Court of Appeal has drawn a distinction between the purposes for which propensity evidence is to be led and a determination of its admissibility. I have determined, for the reasons that I have expressed, that the evidence sought to be led by the Crown is admissible as tendency evidence.  Such ruling will be sufficient to deal with the admissibility of the evidence.  If the Crown seeks to also rely upon such evidence at trial as coincidence evidence, a ruling as to whether the evidence is also admissible for that purpose is best left to the trial Judge, having regard to the evidence led at trial. 
10. [10]
    My ruling is that the evidence of the offending of the defendant against the victims BIF, GOH and TID, grounding those specific counts on indictments specified in the Crown application and noted at the beginning of these reasons, is admissible.
11. [11]
    As noted earlier, the application was in terms seeking a ruling that evidence of the “conviction, and facts” pertaining to those convictions is admissible.  My ruling is as to the facts pertaining to the conviction of those offences.  I have not ruled upon how those facts might be proved at the trial of the defendant.  So despite the Crown application seeking a ruling in addition as to the admissibility of convictions, I have ruled only as to the admissibility of evidence of facts, not evidence of the fact of the convictions.  The Crown will need to give further consideration as to how the facts of the offences would be adduced at trial.
12. [12]
    So I rule as follows. 
13. [13]
    The following propensity evidence is admissible in the trial of the defendant:

1. the facts pertaining to the conviction of counts 2 and 3 on indictment 1260/12 relating to BIF;
2. the facts pertaining to the conviction of the defendant on counts 1, 2 and 3 on indictment 685/12 relating to GOH; and
3. the facts pertaining to the conviction of count 1 on indictment 686/12 relating to TID as he was then known.