Evidence of uncharged sexual conduct against a complainant may be relevant for three distinct purposes: (1) removing implausibility of isolated incidents (relationship evidence), (2) establishing sexual attraction/motive (motivation evidence), and (3) establishing preparedness to act on that motivation (tendency evidence). Only purpose (3) is tendency evidence subject to ss 97 and 101 of the Evidence Act 1995 (NSW). However, in child sexual assault cases, the distinction between purposes (2) and (3) may be of little practical significance because sexual feelings of adults towards children are considered abnormal, making it difficult to separate motivation from tendency. Where uncharged conduct is independently corroborated, the Crown should give notice of intention to rely on it as tendency evidence. The three-purpose analysis was that of Hodgson JA alone; Grove J and Adams J decided the ground on narrower reasoning.
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