BJS v R

The case confirms that tendency evidence of sexual offending against multiple young victims by a person in a position of trust (here, a Catholic priest) may be cross-admissible across counts involving different complainants where there is a common pattern of using a pastoral/social relationship to gain access to victims. The Pfennig 'no rational explanation' test does not apply under the Evidence Act 1995 (NSW); the statutory tests in ss 97 and 101 require an evaluative judgment, not a discretion. Asking an accused whether a witness's evidence is 'wrong' does not constitute the impermissible Palmer questioning of asking the accused to explain why a witness would lie. A 'reluctant agreement' direction, while undesirable, does not necessarily occasion a miscarriage of justice if the summing up as a whole correctly states the requirement for genuine unanimous agreement.