Robert Hughes was a well-known actor who had, for many years, appeared in the series of ‘Hey Dad’. He was charged with a number of sexual offences and Greg Walsh represented him as his Trial Counsel. The Appellant was convicted of all but one (1) of the counts against him, being 11 counts of sexual offences committed against five (5) underaged girls. Each of those girls are aged between 6 – 15 years at the date of offending.
The prosecution sought to adduce tendency evidence from additional witnesses.
Greg Walsh, on behalf of the Appellant, applied for severance of the counts relating to each complainant and an order for separate trial. This, in turn, was based on the admissibility of tendency evidence. The Trial Judge rejected the Appellant’s challenge that the evidence lacked sufficient similarity to the charged conduct to have significant probative value. The trial Judge held that the contention focused too narrowly on the need to prove a tendency to engage in sexual activity in a particular fashion.
Kiefel CJ, Bell, Keane and Edelman JJ dealt with the ground contending that the Court of Criminal Appeal erred by holding that an “underlying unity” or “pattern of conduct” need not be established before tendency evidence is held to have significant probative value and by declining to follow Velkoski.
Their Honours observed that “Commonly, evidence of a person’s conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court’s assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove”.
Their Honours also observed that the “probative value of the evidence of each complainant…lay in proof of the tendency to act on the sexual attraction to underage girls, notwithstanding the evident risks. The fact that the appellant expressed his sexual interest in underage girls in a variety of ways did not deprive proof of the tendency of its significant probative value”.
Their Honours also observed that the evidence “will necessarily involve a comparison between the tendency and the facts in issue. 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 anything more than relevance”.
Their Honours dismissed the appeal.
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