Tendency Evidence: McPhillamy v The Queen [2018] HCA 52

Thursday 8 November 2018 @ 1.47 p.m. | Crime | Judiciary, Legal Profession & Procedure

In Richard John McPhillamy v The Queen [2018] HCA 52 (8 November 2018), the High Court of Australia has delivered its reasons for orders it made on 9 August 2018, allowing an appeal from the Court of Criminal Appeal of the Supreme Court of NSW, quashing the appellant's convictions and directing a new trial (see McPhillamy v R [2017] NSWCCA 130 (14 June 2017)).


Following a trial before a judge and jury in 2015 in the NSW District Court (8 May 2015, King DCJ File Number(s): 2013/14004), the appellant had been convicted of six sexual offences alleged to have been committed between 1995 and 1996 against "A", an 11 year old altar boy. "A" was at the time under the appellant’s supervision, the appellant being an acolyte. According to "A's” evidence, the offences took place over two Saturday nights before mass when the appellant followed “A” into the public toilet at the church.

Evidence was not given by the appellant at trial. The appellant's claimed that "A" had made up the allegations to support his claim for compensation from the Catholic Church. The appellant further claimed that “A” knew that the appellant had been previously charged with sexual offences against boys, although he did not know the details of those offences. Further, the appellant claimed "A" had previously told police that he had falsely stated in his compensation application that the appellant had anally penetrated him.

The prosecution led tendency evidence from two men, "B" and "C". The evidence of B and C was that in 1985, "B" and "C" had been 13 years old and were boarding students at a college at which the appellant was then an assistant housemaster. In their evidence "B" and "C" indicated that they had separately sought out the appellant when they felt homesick and the appellant had then comforted them in the appellant's room before committing sexual acts against them. At trial in relation to the offences against "A", the appellant did not challenge the evidence of "B" or "C" and the jury were instructed that the prosecution relied on the tendency evidence as demonstrating the appellant's ". . . sexual interest in male children in their early teenage years who were under his supervision".

Court of Criminal Appeal

The appellant appealed against his convictions to the Court of Criminal Appeal (see [2017] NSWCCA 130). The appellant challenged the admission of the tendency evidence. Normally, tendency evidence is not admissible unless the court considers that it possesses "significant probative value". In the Court of Criminal Appeal a majority of the Court found that the tendency evidence strongly supported the prosecution case and had been rightly admitted.

Special Leave

The appellant sought special leave to appeal to the High Court. The grounds for appeal were:

•    The majority of the Court of Criminal Appeal erred in holding that the tendency evidence had significant probative value.

•    The majority of the Court of Criminal Appeal erred in holding that the probative value of the tendency evidence substantially outweighed its prejudicial effect.

Special leave was granted and the appellant appealed to the High Court.

The High Court Decision

The High Court held that, while the tendency evidence was capable of establishing that the appellant had a sexual interest in young teenage boys, it did not meet the threshold requirement of significant probative value in circumstances in which there was no evidence that the asserted tendency had manifested itself in the decade prior to the commission of the alleged offending.

The tendency evidence rose no higher than to insinuate that, because the appellant had sexually offended against "B" and "C" ten years before, in different circumstances, he was the kind of person who was more likely to have committed the offences that "A" alleged. It was not, however, capable of affecting to a significant extent the assessment of the likelihood that the appellant committed the offences alleged by "A". From the majority decision at para [31] and para [32]

“Moreover, where, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together. The suggested link in this case is the appellant's tendency to act on his sexual interest in young teenage boys who were under his supervision. . . . The evidence does not suggest that "A" was vulnerable in the way that "B" and "C" were vulnerable. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with "A"'s account that the appellant followed him into a public toilet and molested him.

"B"'s and "C"'s evidence established no more than that a decade before the subject events the appellant had sexually offended against each of them. Proof of that offending was not capable of affecting the assessment of the likelihood that the appellant committed the offences against "A" to a significant extent .”

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Richard John McPhillamy v The Queen [2018] HCA 52 (8 November 2018) and associated court summaries and documents

McPhillamy v R [2017] NSWCCA 130 (14 June 2017)

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