Separate trials decision (ground 1)
98 Mr Thangaraj for the appellant submitted that the trial judge was in error in holding that evidence in respect of charges in relation to each complainant was admissible in respect of charges relating to other complainants as tendency and/or coincidence evidence, and on that basis rejecting the application for separate trials.
99 He submitted that the trial judge was in error to say that it did not appear that the significant probative value of the evidence in that respect was really challenged, and that the trial judge did not give reasons for holding that the evidence did have significant probative value.
100 On the question of the probative value of evidence relied on as tendency or coincidence evidence, Mr Thangaraj relied on O'Keefe v R [2009] NSWCCA 121, and on CGL v DPP [2010] VSCA 26. He submitted that the real assertion made by the tendency and coincidence notices was that the appellant had a sexual interest in young children, and as O'Keefe and CGL showed, this was insufficient for the probative value necessary for tendency or coincidence evidence. The limitation to family members did not significantly change the position, and in any event was artificial, because originally there were non-family complainants. Many of the further particulars were just matters of opportunity and how things allegedly happened to occur, and many applied only to some or only one of the complainants. The probative value of the evidence as tendency or coincidence evidence was small, and the prejudicial effect enormous.
101 Mr Thangaraj submitted that the trial judge also erred in dealing with the question of concoction and/or contamination.
102 He submitted that the trial judge made no reference to the recorded interview with TP, and in particular no reference to statements that TP had seen SP before making contact with police, that she was aware of allegations involving TM and that SP said "don't worry we'll get him for you". He also pointed to TP saying in her record of interview that she became aware of TM's allegation through CP, whereas in a conference with the DPP on 6 March 2009, she said she was told by MP.
103 Mr Thangaraj submitted that the family relationship heightened the risk of concoction. He pointed out that whereas SP denied telling anyone of what happened to her, there were rumours about this in the family. TP's complaint to her father was well after the appellant had been charged in respect of SP and TM and others; and Mr Thangaraj also pointed to evidence given by TP at the trial that the appellant had done to her "what he did to [TM]", showing there had been discussion of it. He also referred to MP's evidence on the voir dire that TM said to her "that's Mum's story".
104 Mr Thangaraj submitted that the trial judge did not consider the risk that TM and/or TP, knowing about alleged improper sexual conduct against SP and others, were influenced by that in the complaints they made; that is, he did not consider the possibility of concoction or contamination by one or other of them because of what they had heard about complaints by older members of the family.
105 In my opinion, these submissions should be rejected.
106 Evidence with which s 97 is relevantly concerned is evidence that a person has a tendency to act in a particular way or have a particular state of mind; and the probative value of the evidence will depend both on its probative value in establishing the tendency and on the probative value of the tendency (if established) in relation to an issue in the case: R v Li [2003] NSWCCA 407 at [11], R v Cittadini [2008] NSWCCA 256; (2008) 189 A Crim R 492 at [22] - [23].
107 To be admissible as tendency evidence, the evidence must have significant probative value. It must be capable of rationally affecting the probability of the existence of a fact in issue to a significant extent, meaning (at least) an extent greater than required for mere relevance: Zaknic Pty Limited v Svelte Corporation Pty Limited (1995) 61 FCR 171 at 175-6, R v Ford [2009] NSWCCA 306 at [50] and [51], R v PWD [2010] NSWCCA 209 at [66]. The question of probative value (and also the possibility of prejudicial effect) must be assessed having regard to the issues in the case: PWD at [63].
108 It is not necessary in criminal cases that the incidents relied on as evidence of the tendency be closely similar to the circumstances of the alleged offence, or that the tendency be a tendency to act in a way (or have a state of mind) that is closely similar to the act or state of mind alleged against the accused; or that there be a striking pattern of similarity between the incidents relied on and what is alleged against the accused: Ford at [38], [125], PWD at [64]-[65]. However, generally the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value.
109 The possibility of prejudicial effect with which s 101 is concerned is the possibility that the jury will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue, for example by giving effect to "some irrational, emotional or illogical response" or "giving the evidence more weight than it truly deserves": R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 at [116]. An assessment must be made whether the probative value of the evidence substantially outweighs any prejudicial effect that the evidence may have: R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 at [94]-[95]. If the evidence passes the s 101 test, it will a fortiori not be excluded under s 137: Ford at [59].
110 One matter that powerfully affects both the probative value of tendency evidence and the possibility of prejudicial effect is the risk of concoction or contamination of evidence. If the evidence of tendency from different witnesses is reasonably capable of explanation on the basis of concoction, then it will not have the necessary probative value: Hoch v The Queen (1988) 165 CLR 292. However, this will be so only if there is a real chance rather than a merely speculative chance of concoction: R v Colby [1999] NSWCCA 261 at [111], R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433 at [74], [112]. The onus is on the Crown to negate the "real chance" of concoction: OGD at [74], R v F [2002] NSWCCA 125; (2002) 129 A Crim R 126 at [48].
111 Relevant to consideration of concoction are the factors mentioned in Hoch at 297, namely relationship, opportunity and motive. One of these on its own is not sufficient to base a finding of a real possibility of concoction: R v RN [2005] NSWCCA 413 at [15], OGD at [111] - [112].
112 In my opinion, subject to the question of concoction, to which I will return, features of the appellant's conduct described by each complainant were sufficiently similar and sufficiently unusual for the evidence of each of them to have significant probative value in showing the specified tendencies; and the existence of those tendencies would have significant probative value in supporting other evidence that the appellant committed the offences charged. In my opinion, it is unusual for a parent or grandparent to do acts of the kind described by each witness, and the acts described by each, if accepted, would in my opinion to a very significant extent rationally affect the assessment of the probability of the appellant having an unusual sexual interest in his daughter and granddaughters and having a tendency to give effect to that interest in assaulting them; and the existence of those tendencies in turn would to a very significant extent rationally affect the assessment of the probability of the commission of the offences charged. In my opinion also, the probative value of the evidence is such that it substantially outweighs any prejudicial effect it may have. The danger of the jury responding inappropriately to it, or giving it more weight than it truly deserves, is in my opinion small, particularly if appropriate directions are given.
113 The case is very different from O'Keefe, in which tendency/coincidence evidence was sought to be relied on to identify the accused as the person who committed a sexual assault, where there was no other evidence that identified him. In those circumstances, it was clear that tendency evidence could not establish the identity of the accused, and coincidence evidence could not establish identity unless the coincidence or coincidences were particularly striking and powerful.
114 The case of CGL is also distinguishable. In that case, there was no common pattern of conduct, and what was said to be similarities were features which would characterise almost every allegation of sexual offending against a young girl. Even where there were similarities (the offending against two complainants occurring when the accused was living with the complainants' mother), the nature of the offending was very different. In the present case, the nature of the alleged offending was similar, the complainants were a daughter and granddaughters of the accused and of similar ages when the offending commenced, and there were other features such that the evidence as a whole did suggest a pattern of conduct.
115 Turning to the question of concoction, in my opinion no error is shown in the trial judge's finding that there was no real possibility of concoction.
116 No motive for concoction was suggested at the voir dire hearing. Although such a motive was suggested at the trial, through the evidence of JP, no application was then made to withdraw evidence from the jury or to abort the trial.
117 Although there was a family relationship between the complainants, and some opportunity for concoction, particularly as between SP and TM, the whole of the circumstances disclosed at the voir dire hearing weighed strongly against any possibility of concoction. The recorded telephone conversation between the appellant and SP weighed very strongly against concoction by SP.
118 Although there was some variation between the accounts of SP and MF as to the circumstances in which TM first made her complaint to them, there was nothing in the evidence to suggest that TM's complaint was instigated by anything done by SP or MF, and nothing to suggest that TM was ever made aware of particular allegations by SP or that TM's complaint underwent any change between her initial complaint and the record of interview of 20 August 2007. The evidence of MP that TM said "that's Mum's story" was justifiably rejected by the trial judge, and no challenge on appeal is made to that rejection.
119 There is no suggestion that TP had been told of any allegation against the appellant when she complained to her friend ST in 2002 or 2003. Although TP saw SP before making her statement to the police, there is nothing to suggest that either SP or CP told TP the precise nature of allegations by SP or TM before TP gave her record of interview.
120 In my opinion, the whole material justified the trial judge's conclusion that there was no real chance of concoction, and that consideration of the question of concoction does not alter the conclusion that the evidence had significant probative value, and that this probative value substantially outweighed any prejudicial effect the evidence may have.
121 Mr Thangaraj also referred to the risk of contamination.
122 I note that in R v Ananthanarayanan (1993) 98 Cr App Rep 1, the English Court of Appeal held that, where there was a real risk, whether by reason of collusive concoction or innocent contamination, that the evidence of a witness was not independent of that given by another witness, it was not admissible to corroborate the evidence of that other witness; and in R v Glennon (No 2) [2001] VSCA 17; (2001) 7 VR 631 at [155], Callaway JA (with whom Winneke JA and Ormiston JA agreed, at [73]) said this:
[155] "Collusion" does not have a special meaning which includes unconscious influence or innocent infection. The point is rather that, just as collusion deprives disputed similar fact evidence of its probative value, the same may be true of unconscious influence or innocent infection from media publicity. The unconscious influence or innocent infection may supply the explanation for the similarity between the respective complainants' accounts without there being any dishonest fabrication. Where that is an issue at a trial, the judge should direct the jury that they have to be satisfied beyond reasonable doubt that such unconscious influence or innocent infection is not the explanation for the similarities on which the Crown relies. Her Honour refused to give such a direction. The question is whether unconscious influence or innocent infection was an issue at the second trial.
123 In my view, it is not a risk of any contamination whatsoever that would necessarily require the exclusion of evidence: it must be a risk of contamination that goes to the substance of the evidence, and not merely to incidental details of no materiality. I accept that, unless the Crown negates a real chance of contamination going to the substance of the evidence, then the evidence of other witnesses should not be admitted as tendency evidence. However, the risk of unconscious influence as to incidental details would not in my view necessarily require the evidence to be excluded.
124 Whether or not this view is correct, in my opinion, having regard to the circumstances I have referred to, no error is shown in the trial judge's finding that there was no real possibility of contamination in this case.
125 Since the evidence of the different complainants was admissible as tendency evidence in each of the cases, in my opinion there was no error in the trial judge's decision to permit the trials of complaints by SP, TP and TM proceeding together.
126 So far, I have not considered the admissibility of the evidence as coincidence evidence. The question whether the evidence was admissible as coincidence evidence does not affect the question whether the trial judge erred in not ordering separate trials. However, my view is that the evidence was admissible as coincidence evidence, albeit not independently of its admissibility as tendency evidence. That is, there were indeed similarities in events and circumstances making it improbable that they occurred coincidently, but this was because those similarities were evidence of the tendencies relied on by the Crown. And in my opinion the evidence had significant probative value as coincidence evidence, which substantially outweighed any prejudicial effect it may have had, just because of its value as evidence of the relevant tendencies.