Bauer v The Queen

Facts

The accused was charged with multiple sexual offences against a single complainant occurring over several years. At trial, the prosecution sought to lead tendency evidence drawn from the accused's own conduct with the same complainant to prove that he had a tendency to engage in sexual misconduct with her. The trial proceeded on a joint trial basis in respect of the multiple counts.

Issues

1. Whether, in a single-complainant case, tendency evidence rules under the uniform Evidence Acts apply where the tendency evidence and the charged conduct both concern the same complainant. 2. Whether a joint trial of multiple counts involving one complainant requires a Pfennig-style no rational explanation test or the significant probative value test under s 97 of the Evidence Act 2008 (Vic).

Holding

The High Court held that the uniform Evidence Act tendency provisions apply to single-complainant cases and that the significant probative value threshold in s 97, not the common law Pfennig test, governs admissibility of tendency evidence in such cases.

Ratio decidendi

Under the uniform Evidence Acts, tendency evidence is admissible if it has significant probative value that substantially outweighs any prejudicial effect (ss 97 and 101); the common law Pfennig no-rational-explanation test has no residual role where the statutory scheme applies, even in single-complainant multi-count trials.

Obiter dicta

The Court noted that the task of assessing 'significant probative value' requires attention to the particular features of the tendency relied upon — including its specificity and frequency — and that courts should not treat the statutory test as equivalent to, or informed by, the superseded common law standard.

Significance

Bauer definitively displaced the Pfennig no-rational-explanation test in uniform Evidence Act jurisdictions, confirming that ss 97 and 101 provide the exclusive framework for tendency evidence admissibility in both single- and multiple-complainant sexual offence prosecutions.

Key authorities

• Pfennig v The Queen Pfennig v The Queen (1995) 182 CLR 461distinguished
• IMM v The Queen IMM v The Queen (2016) 257 CLR 300applied
• Hughes v The Queen Hughes v The Queen (2017) 263 CLR 338applied
• R v Velkoski R v Velkoski [2014] VSCA 121considered
• R v Fletcher R v Fletcher (2005) 156 A Crim R 308considered