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48
Court of Criminal Appeal 23 September 2005

Fletcher v R

[2005] NSWCCA 338

Also reported as (2005) 156 A Crim R 308
Sexual offences
CRIMINAL LAW EVIDENCE PRIOR CONDUCT TENDENCY AND COINCIDENCE RELEVANCE PRINCIPLES TO APPLY

Citation: R v Fletcher [2005] NSWCCA 338
Court: NSW Court of Criminal Appeal
Date: 23 September 2005
Judge(s): McClellan CJ at CL, Simpson J, Rothman J (dissenting)

Background

The appellant was a Roman Catholic parish priest who served a rural district encompassing Clarence Town in the Hunter Valley. He developed a close relationship with the family of the complainant, who was born in 1976 and served as an altar boy. The alleged offences took place during 1990 and 1991, when the complainant was aged 14 and 15.

The appellant was charged with nine counts, including eight counts of homosexual intercourse with a male aged between 10 and 18 years, and one count of committing an act of indecency toward a person under 16 who was under his authority. The charges arose from a series of alleged encounters in cars and at various locations, involving acts of fellatio, anal intercourse, and indecent conversation.

Before trial, the Director of Public Prosecutions gave notice of an intention to adduce tendency evidence under section 97 of the Evidence Act 1995 and coincidence evidence under section 98. The admissibility of that evidence was contested and formed the central issue on appeal.

  • Whether the trial judge correctly admitted tendency evidence under section 97 of the Evidence Act 1995 and, where applicable, coincidence evidence under section 98
  • Whether section 101 of the Evidence Act 1995 (requiring that probative value "substantially outweigh" prejudicial effect before tendency or coincidence evidence can be used against a defendant) was correctly applied
  • What materials a trial judge may consider when assessing the probative value of tendency or coincidence evidence at the admissibility stage
  • At what point in the proceedings the judgment about admissibility should be made, and whether that assessment can be revisited
  • Whether the common law on similar fact evidence (including the test in Pfennig v The Queen) remains relevant as a guide to applying the Evidence Act provisions

Decision

By majority (McClellan CJ at CL and Simpson J, with Rothman J dissenting), the Court of Criminal Appeal dismissed the appeal.

Simpson J, with whom McClellan CJ at CL agreed, held that the trial judge had not erred in admitting the tendency evidence. Her Honour examined the principles governing sections 97, 98, and 101 of the Evidence Act 1995 in detail, including the threshold requirement that tendency evidence have significant probative value and that such value substantially outweigh any prejudicial effect before it can be used against an accused in a criminal proceeding. The majority concluded that the evidence met those statutory requirements on the facts of this case.

The majority also addressed the relationship between the Evidence Act regime and the common law on similar fact evidence. The court accepted that common law authorities, including decisions such as Pfennig v The Queen, remain relevant as a guide to understanding how the statutory provisions operate, but that the Evidence Act framework is the governing law and its language must be applied directly.

Rothman J dissented, concluding that the admitted tendency evidence did not disclose sufficient pattern, underlying unity, or striking similarity to take the material beyond mere propensity, and that its admission was therefore in error. His Honour would have allowed the appeal, quashed the conviction, and ordered a new trial.

Orders Made

  • Appeal dismissed (by majority)

Key Takeaways

  • In dismissing the appeal, the majority confirmed that the test under section 101 of the Evidence Act 1995 requires the probative value of tendency or coincidence evidence to "substantially outweigh" any prejudicial effect before such evidence can be used against a defendant in criminal proceedings, a higher threshold than the general discretionary exclusion in section 135.
  • Common law similar fact authorities, including Pfennig v The Queen, remain relevant as interpretive guides to the operation of the Evidence Act tendency and coincidence provisions, but the statutory language is the primary and governing framework.
  • Rothman J's dissent illustrates the contested nature of the probative value assessment: where alleged prior conduct shows no sufficiently distinctive pattern or system beyond a general propensity, it may not clear the admissibility threshold under the Act.
  • The question of what materials a trial judge may consider when assessing probative value at the admissibility stage, and when that assessment is to be made, were identified as significant matters of principle in this case.
  • No error was established by the majority in the trial judge's exercise of judgment in admitting the evidence, and the conviction accordingly stood.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW): ss 55, 56, 97, 98, 101, 102, 135, 137, Dictionary
- Crimes Act 1900 (NSW): ss 61E, 78K (both now repealed)
- Criminal Appeal Act 1912 (NSW): ss 5F(3A), 6

Cases
- Pfennig v The Queen (1995) 182 CLR 461
- DPP v Boardman [1975] AC 421
- DPP v Kilbourne [1973] AC 729
- Hoch v The Queen (1988) 165 CLR 292
- Harriman v The Queen (1989) 167 CLR 590
- R v Ellis [2003] NSWCCA 319; 58 NSWLR 700
- R v AH (1997) 42 NSWLR 702
- R v Fordham (1997) 98 A Crim R 359
- R v Lock (1997) 91 A Crim R 356
- R v Harker [2004] NSWCCA 427
- R v Milton [2004] NSWCCA 195
- R v Nassif [2004] NSWCCA 443
- House v The King (1936) 55 CLR 499
- Adam v R (2001) 207 CLR 96
- Noor Mohamed v The King [1949] AC 182