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4.18.2 - Charge: Tendency Evidence (Sexual Interest Evidence)

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When to Use This Charge

This charge may be given if evidence that the accused had an improper sexual interest in a single complainant has been admitted as tendency evidence. See Directions Under Jury Directions Act 2015  for information on when directions are required.

A short direction based on this charge should be given at the time the evidence is led.

Alternative Charges

If evidence has been admitted to prove that the accused had a tendency to act in a particular manner or with a particular state of mind (including a tendency to commit sexual offences against multiple individuals in a particular class), use Charge: Tendency Evidence (General Charge).

If evidence of two or more similar events has been admitted to enable the jury to draw an inference of guilt by a process of coincidence reasoning, use Charge: Coincidence Evidence.

If evidence is led of other discreditable acts of the accused which are not directly relevant to a fact in issue, or is adduced to help the jury understand the context of the alleged offending, use Charge: Other forms of other misconduct evidence.


Permissible Uses of "Sexual Interest" Evidence

Members of the jury, part of the prosecution case is that NOA has demonstrated a sexual interest in the complainant and a willingness to act on that interest.[1]

[Identify relevant tendency evidence]

The prosecution argues that [summarise prosecution arguments on the use of tendency evidence]. In response, the defence says [summarise defence arguments on the use of tendency evidence].

If you find that NOA had a sexual interest in the complainant and was willing to act on that interest, then you can use that to find that it is more likely that NOA committed [identify relevant offences].[2]

The prosecution also says that this evidence sets the scene in which the alleged offences took place. Without the evidence, there is a risk that NOC’s evidence would be incomplete and may even be incomprehensible.[3]

[Explain how the provision of contextual information can assist the jury. Possibilities include helping the jury to understand:

You must keep this evidence in perspective. It is only one part of the prosecution’s case.[4] It is not enough to convict the accused that you find [he/she] [identify the tendency evidence, e.g. committed the uncharged acts] or had acted on a sexual interest in NOC in the past. You can only find NOA guilty of a charge if you are satisfied of [his/her] guilt of that charge beyond reasonable doubt, based on the whole of the evidence.

As I have told you, you must not decide the case on the basis of feelings of sympathy or prejudice because of what you learn about the accused. The evidence has been led for the limited purpose of helping you understand the circumstances surrounding the alleged offending and to show that NOA had a sexual interest in NOC and a willingness to act on that interest, and so s/he is more likely to have committed the offence(s) charged. You must not use the evidence for any other purpose.

Notes

[1] This statement should be adapted based on the specific tendency alleged, including any circumstances which are said to form part of the circumstances in which the accused acts on the alleged tendency.

[2] In some cases, it will be necessary to identify intermediate steps through which the tendency evidence makes NOA’s guilt more likely, such as by enhancing the credibility of the complainant.

[3] If the unhealthy sexual interest evidence is not relevant on a contextual basis, this section of the charge must be omitted.

[4] If the tendency evidence is the whole of the prosecution case, then this sentence should be omitted.

Last updated: 2 October 2018

See Also

4.18 - Tendency Evidence

4.18.1 - Charge: Tendency Evidence (General Charge)

4.18.3 - Charge: Tendency Evidence (General Defence Evidence)