1 This is an application for review of a decision of a judge of the County Court to refuse to certify under s 295(3) of the Criminal Procedure Act 2009 for the applicant to seek leave to bring an interlocutory appeal from a decision of the judge to admit evidence as tendency evidence pursuant to s 97 of the Evidence Act 2008.

2 The applicant stands indicted of four charges of indecent assault with a child under 16, and two charges of sexual penetration of a child under 16. It is alleged that he committed two of the offences of indecent assault and the two offences of sexual penetration against his step daughter, 'I', at his home between 1 December 2007 and 31 January 2008; and that he committed the other two offences of indecent assault against his natural daughter, 'K', at his home between 18 March 2011 and 27 March 2011.

3 The judge ruled that the evidence of each complainant is admissible in proof of the offences alleged to have been committed against the other complainant. It is against that ruling that the applicant seeks leave to appeal.

4 The judge refused to certify on the basis that the evidence, if ruled inadmissible, would not substantially weaken the Crown case. In our view, it is plain that it would substantially weaken the Crown case. When a man stands charged with committing unnatural sexual offences against his step-daughter, it is hard to imagine more damning evidence than that he has committed similar offences against his natural daughter. Moreover and perhaps importantly, because the question of cross-admissibility is likely to be determinative of whether the indictment should be severed, the issue is in any event of sufficient importance to the trial to justify it being determined on an interlocutory appeal.[1]

5 The circumstances of the alleged offending against 'I' are described in the judge's ruling as follows:

The context of the offending that involves 'I' is that she alleges when she was aged 11 whilst she was in the accused's care there was an occasion that occurred some time over the Christmas/summer holidays of December 2007/January 2008. The accused took 'I', her brother ('C'), 'K' and his two sons from a previous marriage ('D' and 'E') to his beach house in [suburb] for a two week holiday.

'I' says that she developed a rash between her thighs from swimming that was sore during those holidays and when they were back at his home in [suburb] she told the accused about it and asked for some cream. He took her to his bedroom and asked to see the rash. She showed it to him. He applied the cream to the rash, and then he continued to rub further up her leg and touched her vagina and licked her vagina with his tongue and inserted his finger into her vagina.

The four charged offences involve: Charge 1, removing her pants and applying cream and touching her vagina; Charge 2, inserting his finger into her vagina; Charge 3, licking her vagina; Charge 4, putting his tongue inside her vagina during the course of that incident.

6 The circumstances of the alleged offending against 'K' are described in the judge's ruling, thus:

In relation to 'K', the incident that is alleged to have occurred is that when she was aged nine she was staying over at the accused's home in [suburb] during an access visit. The date of that incident is between 18 March 2011 and 27 March 2011.

In her video-audio recorded evidence she explains that she had been sleeping on the couch and her father had been out at a wedding and had come home in the early hours at about 1am. He picked her up from the couch and took her into his bed and when she woke up he was touching her on her vagina. 'K' said that she woke up when he was touching her vagina and she pretended she was asleep and rolled over and he continued to rub her on the bottom. Those allegations relate to Charge 5, rubbing of the vagina by the accused with his finger; Charge 6, rubbing 'K's bottom with his hands.

7 In reasoning to the conclusion that the evidence of each complainant was admissible in proof of the offences concerning the other complainant, the judge said that:

I am satisfied that the relevant evidence is relevant to the facts in issue in respect to each of the charged offences. Clearly this evidence 'could' affect the probability of the existence of those facts in issue.[2]

Both girls were pre-pubescent when the alleged acts occurred. The accused man allegedly exploited his position as parent or person standing in the shoes of a parent, apropos 'I', when the girls were staying with him during access to take advantage of them. It is unusual for a parent to do acts of the kind described by each complainant.[3]

Although alone with each girl at the time of the alleged offending, others were nearby. With respect to 'I', 'C', 'K' and the two older boys were present and in respect to 'K', 'C' and 'D' were present.

The alleged acts involved him removing the complainant's underwear and involve him touching the girls' vaginas. Notwithstanding it is alleged that the charges concerning 'I' involve penetration of her vagina by the accused's finger, the dissimilarity between the alleged offences do not necessarily deprive the evidence of probative value. Nor does the gap in time between the alleged offences.

The fact that the offences against 'I' occurred when she was 11 and 'K' when she was 9, may, in my view, be regarded as having probative value because it shows that the applicant had a sexual interest in pre-pubescent girls, which was pursued.

In my view, the circumstances of the alleged offending against 'I' and 'K' does demonstrate a pattern of conduct which makes the evidence of these two girls cross-admissible. That is, the evidence of one complainant that [the applicant] committed these offences against them has significant probative value as evidence of a tendency to offend against the other children in the family.

8 It appears from the transcript of argument before the judge that her Honour was referred to the judgment of this court in RHB v R.[4] Her Honour's reasons suggest that she regarded the following passage of the judgment as providing relevant guidance:

... With great respect, I am not sure that PNJ was correctly decided. But, accepting for present purposes that it should be followed, it was concerned with a question of coincidence evidence and thus, as it was held, whether there was sufficient similarities between the several incidents of offending as to make proof of one significantly probative of the proof of another. In this case we are concerned with tendency evidence, which is to say evidence which establishes that the appellant had a tendency to commit a particular kind of act or to commit an act in a particular way, and the question is whether the degree of peculiarity (for want of a better term), either in the acts themselves, or in the circumstances in which they were committed or in nature or identity of the persons against whom they were committed or by reason of a combination of those and possibly other considerations, are such

that the evidence has significant probative value. The two are not the same, albeit that in some cases there may be a large degree of overlap.

As Hansen JA observed in KRI v R, the test for the admissibility of tendency evidence is one of fact and degree to be assessed in light of the facts and circumstances of the particular case. And in the facts and circumstances of this case, I am not persuaded there is room for doubt about it. As the judge held, it is a remarkable thing for a man to commit sexual acts against his female lineal descendants. It is still more remarkable when, in each case, the nature of the acts is similar if not identical, even if they are commonplace sexual acts. It is even more remarkable that in each case the acts were committed in the home while the victim was in the applicant's care, while other adults were close by and the risk of detection was significant. It follows that, if accepted, the evidence of the applicant's prior offending against his daughters would demonstrate that he had a tendency to be sexually attracted to his young female descendants and to act upon that attraction in similar ways at different times, when the victims were in his home under his care and thus vulnerable to his advances. As such, as the judge held, it would be capable of rationally affecting the assessment of the probability of the applicant having had a sexual interest in his granddaughter and giving effect to it by committing the offence alleged.

9 Evidently, her Honour was persuaded, by analogy with RHB, that there is sufficient 'peculiarity' in this case in that the alleged offending was committed against pre-pubescent female children of similar age, in relation to whom the applicant stood in loco parentis, in his own home, when other persons were close by with consequent risk of detection, and that the offending was in each case of a not dissimilar nature, constituted of touching the complainant's genitalia, albeit that in one case but not the other there was actual penetration.

10 With respect, we are not sure that we would have reached the same conclusion. As at present advised, we are inclined to think that her Honour may have pressed the analogy with RHB a little too far. Despite the similarities between the two cases, there are also some important differences.

11 To start with, in RHB, there was not just one previous occasion on which the perpetrator was alleged to have offended against another complainant, but three. And as was said then:

... It does not follow from the fact that, because in this case there are three occasions of prior offending which are regarded as relevant to and probative

of the charged act, in another case one previous act of offending would be regarded as relevant and probative of the act which is charged in that case.[5]

12 Secondly, in RHB the relevance of the prior offending was not just that the perpetrator had in the past offended against his female lineal descendants but that he had done so in a particular way, albeit perhaps that it was not particularly striking. Here, there is not the same degree of particularity as there was RHB, if only because in this case there was penetration of one complainant but not of the other.

13 Thirdly, in RHB the perpetrator's modus operandi of approach to each complainant was virtually identical, whereas in this case one incident of the alleged offending arose out of what might otherwise have been seen as an innocent act of parental care and the other incident occurred in a different and more inexplicable context.

14 As Redlich JA warned in RR v R,[6] when it comes to the admissibility of propensity evidence, one must be careful to ensure that the features of commonality or peculiarity which are relied upon are significant enough logically to imply that because the offender committed previous acts or committed them in particular circumstances, he or she is likely to have committed the act or acts in issue. Otherwise, there is the danger of admitting evidence as tendency evidence simply because that evidence suggests that the accused is or was the sort of person who is more likely to commit the kind of offence with which he is charged.

15 On the other hand, as it emerged in the course of oral argument this morning, there are two, perhaps three, further aspects of the evidence which also bear on the question of cross-admissibility and which tend to add some weight to the judge's decision. The first is that the Crown intends to call evidence from the complainants' mother that, when the applicant returned 'K' to her custody the day after the alleged offending against 'K', the applicant volunteered that there had been some sort of incident between him and 'K', which 'K' would likely speak to her about, during which he had removed 'K's' pants, rubbed her back and possibly also her buttocks. Secondly, according to the complainant's mother, the applicant said that he had been drinking at the time of the incident with 'K', and did not remember much about the episode, other than that he was seeking to alleviate 'K's' suffering from a skin disorder to which it was known that she was subject. Thirdly, there is some evidence that the applicant was affected by alcohol at the time of the alleged offending against 'I'.

16 If all that evidence is accepted, and for present purposes its reliability may perhaps be assumed,[7] it could be thought to amount to a partial admission of what is alleged against the applicant in relation to 'K' and also to demonstrate an additional degree of commonality as between the circumstances of offending in each instance: inasmuch as it shows that the applicant, while affected by alcohol, took improper, opportunistic advantage of the need to treat one of his children for a skin disorder.

17 Furthermore, it is now clear[8] that an interlocutory appeal from a decision to admit tendency evidence under s 97 of the Evidence Act 2008 is governed by the principles in House v The King.[9] It follows that:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred...[10]

That is a high hurdle for any applicant to surmount.

18 Counsel for the applicant argued that the judge had committed three errors of principle which got him over the hurdle. The first, he said, was that her Honour had overlooked or undervalued the importance of the observation of this court in CGL v R:[11]

As a general rule, the greater the degree of specificity with which the similarities can be identified, the more likely it is that the evidence will be probative of a tendency to act in a distinctive way or to do acts of a distinctive kind. Conversely, the greater the degree of generality, the more difficult it will be to demonstrate that the evidence in question has 'significant' probative value and - even more so - to demonstrate that its probative value 'substantially outweighs' the very real prejudicial effect of evidence of this kind.

There is no substance in that complaint. One can see from the transcript of argument before her Honour, and indeed from her Honour's reasons for ruling, that she paid close attention to the recent decisions of this court in which considerations governing the admissibility of tendency evidence have been questioned and expounded.

19 Counsel next submitted that the judge erred as a matter of principle by the misapplication of Hansen JA's observation in KRI v R,[12] that:

... It is important to bear in mind that each case is a decision on its own facts. In PNJ the court considered as critical the fact that the complainants came to the Youth Training Centre as inmates where the accused worked in a supervisory role as a youth officer, and that the boys' presence at that place and in those circumstances was something outside the accused's control. In short the court considered that there was a lack of distinctiveness about the way in which the accused took advantage of the setting or context to engage in the alleged sexual activity with the complainants, the location merely reflecting the custodial setting, and the acts being otherwise unremarkable. There being no distinctive feature, or pattern, the evidence was considered not to constitute tendency or coincidence evidence. It was in reliance on this decision that the applicant submitted that a critical feature in the present case was the lack of "control" of the applicant in relation to the presence of the complainants at his house. That is, they came voluntarily to see his son, X, and not in any way under or in virtue of any control, direction or plan of his. Accordingly, the alleged offences were to be seen, as in PNJ, as lacking any distinctiveness or pattern. As I have said, each case is to be decided on its own facts, the question being whether the evidence proposed to be adduced is tendency or coincidence evidence as stated in ss 97(1) and 98(1). In my opinion the evidence proposed to be adduced in the present case does establish a modus operandi or pattern of conduct and a state of mind sufficient to bring it within the terms of s 97(1).

1"> 20 There is no substance in that submission either. Plainly, the judge was right to consider, as Hansen JA observed, that there is frequently not a lot of utility to be derived from contrasting the facts and circumstances of one case with another. At the same time, and recognising that contrast and analogy can sometimes be a valid and effective process of reasoning to a logical conclusion, it is to be noted that the judge's reasons are replete with attention to the facts and circumstances of what her Honour rightly regarded as comparable cases.

21 Finally, counsel submitted that the judge erred in principle in failing heed the admonition of this court in PNJ v R[13] that:

The touchstone of admissibility under s 98(1) is similarity. And the degree of similarity must be such as to render the evidence of significant probative value, either by itself or having regard to other evidence to be adduced by the prosecution. In CGL v Director of Public Prosecutions, in which the same issue arose on an interlocutory appeal, the prosecution conceded that the correct approach to assessing the probative significance of asserted similarities was to be found in the judgment of Winneke P in R v Papamitrou. That was, of course, a pre-Evidence Act decision. In the present case, counsel for the applicant pointed out that the NSW Court of Criminal Appeal had likewise treated pre-Evidence Act learning on this issue as instructive.

22 There is no merit in that complaint either. As Beazley JA observed in PWD v R,[14] PNJ was a about the admissibility of coincidence evidence under s 98 of the Act and, when it comes to the admissibility of tendency evidence under s 97:

The authorities are clear that for evidence to be admissible under s 97 there does not have to be striking similarities, or even closely similar behaviour. By contrast, coincidence evidence is based upon similarities. Section 98 provides in terms that two or more events occurring is not admissible to prove that a person did a particular act, on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless, the evidence has significant probative value.

23 In the result, we are not persuaded that the judge was wrong. Despite our concerns that the judge may have pressed the analogy with RHB too far, the

23 applicant has failed to satisfy us that the judge's conclusion was one which on the evidence available no reasonable judge could properly reach.

24 It remains to consider the possibility of collaboration between the complainants, or at least the possibility that one of them may have unconsciously influenced the other. The judge took the view that there was nothing to support the idea of collaboration or innocent influence as opposed to mere speculative suggestion;[15] and so, in effect, her Honour proceeded on the basis that any possibility of collaboration or influence was excluded. It was thus that her Honour concluded that the evidence of each applicant was sufficiently probative of guilt of the offences committed against the other applicant as substantially to outweigh the prejudicial effect of its admission.

25 In our view, there was some evidence which suggested the possibility of collaboration or innocent influence. The complainants are half sisters who lived together throughout the period of allegations, complaint and investigation, and 'K' actually said in the course of her VARE interview that she had told 'I' about what the applicant did to her. It also appears that 'I' did not complain to her mother about the attack on her until months after the incident and that she did not complain to the police until after 'K' told her of what 'K' said was the attack on her.

26 The judge declined to conduct a voir dire investigation into the possibility of collaboration or innocent influence. She said that she did not consider that there was sufficient basis to do so. In her words:

Overall I am not satisfied that there has been any collusion or contamination of the complainant's accounts of the kind which would diminish the probative value of the relevant evidence. Nor do I consider that there is any evidentiary basis for conducting a voir dire to explore this matter further.

27 With respect, we are inclined to think that it was not open to exclude the possibility of collaboration or innocent influence without further investigation.[16]

28 That said, however, the propriety of the judge's refusal to conduct a voir dire hearing also falls to be decided for the purposes of this application according to the principles in House v R;[17] and, although we have some reservations about the rectitude of the judge's voir dire ruling, we are not persuaded that the course which her Honour adopted was not open to take. We accept that it is something about which reasonable minds may properly differ.

29 Finally, we add that we are to some extent strengthened in that conclusion by the fact, as counsel for the Crown pointed out, the special hearings will precede the empanelment of any jury; it will be open to defence counsel in the course of the special hearings to pursue the possibility of contamination and innocent influence; and, although that is obviously not as satisfactory from the defence point of view as a voir dire hearing, it will be open and appropriate for the judge to revisit the questions of cross-admissibility and severance after the special hearings have been conducted.

30 For those reasons, we propose to allow the application to review the judge's refusal to certify, but to refuse the applicant leave to appeal.

1. The application to review the judge's refusal to certify is allowed.

2. The application for leave to appeal is refused.

[1] See Criminal Procedure Act 2009, s 295(3)(b) and PNJ v R (2010) 27 VR 146, 158 [33].

[2] S.55.

[3] See DR v The Queen [2011] VSCA 440, 88. Citing with approval BP v R [2010] NSWCCA 303, 112.

[4] [2011] VSCA 295, [17]-[18].

[6] RR v R [2011] VSCA 442, [37]-[38] (Redlich JA).

[7] R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228, 237-8 [61]-[64] (Spigelman CJ).

[8] KJM v R (No 2) [2011] VSCA 268, [12].

[9] [1936] HCA 40; (1936) 55 CLR 499.

[10] Ibid 504-505 (Dixon, Evatt and McTiernan JJ).

[11] [2010] VSCA 26; (2010) 24 VR 486, 497 [40].

[12] (2011) 207 A Crim R 552; [2011] VSCA 127, [58] (Hansen JA).

[13] (2010) 27 VR 146, 148 [8] (citations omitted).

[14] [2010] NSWCCA 209; (2010) 205 A Crim R 75, [79]; [2010] NSWCCA 209, [79].

[15] Cf SPA v The Queen [2011] VSCA 306, [11].

[16] PNJ v R [2010] VSCA 88, [28].