The High Court has today (14 June 2017) by majority, dismissed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales in the case of Hughes v The Queen  HCA 20. The case revolved around whether tendency evidence was inadmissible under s 97(1) of the Evidence Act 1995(NSW) and the court found, in a four to three ruling, that using character, reputation or conduct to prove that a person has a tendency to act in a certain way is admissible.
In 2014, Hughes was found guilty of 10 sexual and indecent charges and sentenced to six years imprisonment. During that trial, the prosecution argued, using section 97(1) of the Evidence Act 1995 (NSW), that Hughes had a tendency to commit indecent assault or sexual offences against young girls. Section 97(1) stipulates that such tendency evidence is inadmissible, unless the court finds that it has significant probative value. However the defendant argued that each situation was too different to be regarded as a tendency.
In the Supreme Court of New South Wales, the appellant challenged the admissibility of section 97(1), arguing that there was no significant probative value of the evidence of his character or conduct. The trial judge held that the probative value of the evidence was significant because the fact in issue in each offence was whether the sexual conduct occurred. The jury however returned a verdict of guilty.
On appeal to the New South Wales Court of Criminal Appeal, the appellant's case was on the same grounds but the Court again dismissed the appeal. The appeal to the High Court was granted by special leave.
The High Court’s dismissal by a ruling of four to three was that s 97(1) does not condition the admission of tendency evidence on the court’s assessment of similarity between the evidence and the conduct. The majority also contended that tendency evidence will have significant probative value where the evidence strongly supports proof of a tendency and the tendency strongly supports the proof of a fact that contributes to the charged offence. The court, considering all the tendency evidence, found that the evidence showed the appellant’s tendency to commit such offences against female children, leading to a conclusion that the evidence was significantly probative.
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Hughes v The Queen  HCA 20.
'Hey Dad! star Robert Hughes loses High Court fight against child sex convictions.' 14 June 2017. ABC News Online.
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