Background
SFD was convicted after a two-day District Court jury trial of two counts of indecent treatment of his stepdaughter, who was under 12 and in his care, and one count of observing her naked in the shower. The alleged conduct occurred in 2020 and 2021, when the complainant was 10 or 11. He received a 12-month sentence, suspended after six months for an operational period of 18 months.
The prosecution also led evidence of an uncharged “truth or dare” incident. The complainant said SFD told her to undress and run down the street while he recorded her on his phone; she removed her clothes to her underwear and did so. Trial counsel did not object to its admission or to the judge’s direction allowing the jury to use the incident, if proved, as evidence of SFD’s sexual interest in the complainant and willingness to act on it.
The Court’s Holding
The Court of Appeal dismissed the conviction appeal. It held that the trial judge made no legal error in giving the propensity direction. Applying the Pfennig test in the context of the prosecution case, and assuming the other prosecution evidence and the uncharged-act evidence were accepted, there was no rational view consistent with SFD’s innocence.
The Court distinguished MDP v The King, where the impugned conduct was capable of a non-sexual explanation and therefore could not be used for a propensity purpose. Here, the truth-or-dare incident could properly be viewed, together with the charged conduct, as an initial low-risk sexual interaction that emboldened SFD to engage in the later alleged acts. The evidence was therefore admissible for the directed propensity use.
Key Takeaways
- Propensity evidence must be assessed in the context of the prosecution case, not in isolation.
- The Pfennig test excludes propensity evidence where a rational view of it, in that context, remains consistent with the accused’s innocence.
- Because the truth-or-dare evidence passed that test, the jury direction caused no miscarriage of justice.
Why It Matters
The decision illustrates the fact-specific application of the Pfennig test after MDP v The King. An uncharged act with an apparently innocent explanation may nevertheless be admissible as propensity evidence where, considered with the prosecution case, that explanation is not reasonably open.