Robert Lindsay Hughes from the popular Australian TV show Hey Dad! was charged with 11 counts of child sex offences committed against 5 underage girls. The underage girls at the time were aged between six and 15 years.

What Was He Found Guilty For?

On the 7 April 2014, the jury returned a verdict of guilty to 9 of those charges. The following day, the jury returned a verdict of guilty to the 11th charge. However, no verdict was reached by the jury in respect to the 10th charge.

What Sentence Did He Get?

Robert Hughes was convicted of 10 counts of child sex offences. He was given a sentence of 10 years and 9 months imprisonment, with a non-parole period of 6 years from 7.4.2014. The non parole period is the time he must be behind bars for before being eligible for release on parole into the community.

Strength Of The Police Case – Tendency Evidence

The prosecution’s strongest argument was that Robert Hughes:

  • Had a sexual interest in girls aged under 16 years; and
  • Had a tendency to act on that interest by engaging in sexual activity with them opportunistically, regardless of the risk of detection.

To establish this tendency evidence, the prosecution brought forward evidence to form a basis that he had sexual interest in underage girls, and a tendency to act on that interest. Therefore making it more likely he committed these 11 counts of child sex offences. Specifically, in the case of Robert Hughes, the complaints of his misconduct should not be rejected as unworthy of belief just because it appeared improbable having regard to ordinary human experience.

To establish the basis of this tendency argument, a number of women gave evidence. 3 of the women described times when Robert Hughes touched them in sexual ways and exposed his penis in their presence at his home. Another 3 women gave evidence that he had inappropriately sexually touched them and exposed himself to them in the workplace.

What Is Tendency Evidence?

Tendency evidence is sometimes used to establish a basis that the person charged with criminal offences has a tendency to act in a particular way, or have a particular state of mind, making it more likely he/she committed the alleged offences.

This is found in section 97 of the Evidence Act 1995 (NSW).

In the case, for example, the police wanting to use tendency evidence against you, before this kind of evidence is allowed by the Court, the following conditions must first be satisfied:

  • Section 97(1)(a) requires the police to first give:
    • Reasonable notice to you in writing of its intention to use the evidence showing that tendency. This means the notice must state a number of things in it, which is expressed in detail in regulation 5 of the Evidence Regulation 2010. And
  • Section 97(1)(b) requires the evidence of tendency that the police want to use to have “significant probative value”. This means, before the court allows the tendency evidence, it must be satisfied of the following two points:
    1. The tendency evidence could significantly support a tendency of yours that the prosecution are intending to show; and
    2. The tendency evidence could make it significantly more likely you are guilty of the current alleged offences. When the court looks into this criteria, it’s not allowed to, and doesn’t consider the credibility of the witness giving the evidence to show a tendency. In fact, it looks at the capacity the witnesses tendency evidence has to support his/her credibility. For example, a witnesses tendency evidence will more likely pass this test if the evidence is supported by other evidence.

It’s important to note here, that, for the tendency evidence to be used against you by the police, there is no requirement that, for example, it is similar conduct to the alleged offending conduct you are charged with.

  • Section 101(2) Evidence Act 1995 (NSW) is the final requirement the police must satisfy in order for the Court to allow the tendency evidence to be used against you. This requires the police to show:
    • Any prejudicial effect the tendency evidence may have on you is substantially outweighed by:
      • The extent the tendency evidence could support the tendency relied on, and extent it could make it more likely you committed the current alleged offending conduct.

The prejudicial effect can occur in a number of ways, for example:

  • The jury may fail to accept that, on this occasion, regarding your alleged criminal charges, you may not have acted in the way you have a tendency to act.
  • The jury may underestimate the number of people who share the same tendency.
  • You would be required to answer a raft of uncharged conduct going back, perhaps, over many years.

In each case, there is a real risk that the tendency evidence will be given unfair weight against you. There is also the real risk that the jury will give an emotional response to the tendency evidence. The Jury should be assessing whether the prosecution have established the alleged offending conduct charged, beyond reasonable doubt, under the law.

What Was the Sexual Activity Committed On the Girls?

The allegations consisted of digital penetration of the private parts of a girl aged 14 years; procuring a girl aged about 8 years to masturbate him; indecently rubbing his erect penis against a 9 year old girl; encouraging a 15 year old girl to touch his penis; and indecently exposing himself to girls aged 9 and 12 years.

Can the Defence Case Run a Tendency Argument against the alleged Victim?

The defence case, although rare, can run tendency arguments. For example, where the alleged victim’s injuries were occasioned by self-harm, yet makes false complaints that the injuries were caused by you.

In such an instance, it would be appropriate to adduce tendency evidence where the alleged victim has a history of self-harm behaviour. This can, if the above explained criteria are satisfied, provide a basis that the alleged victim has a tendency to self-harm, making it more likely that the injuries on his/her body were caused by self-harm.

The only difference in the defence running tendency evidence is that the final requirement to be satisfied by the court, before it allows the tendency evidence, is the test in section 135 Evidence Act 1995 (NSW) instead of the test in section 101 explained above.

For further details of this story, see the News article on Robert Hughes.

For more details on child sex offences and their penalties and defences, see our child sex offences page.

Published on 26/11/2017

AUTHOR Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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