DJW v R

Court of Criminal Appeal (NSW)|2015-04-21|Before: Simpson J, Hulme J, Bellew J

Solicitors: Robert Kaufmann Criminal Lawyer Solicitor for Public Prosecutions File Number(s): 2012/348461; 2013/348085; 2013/348087 Decision under appeal Court or tribunal: District Court Date of Decision: 27 October 2014 Before: Baly SC DCJ File Number(s): 2012/348461; 2013/348085; 2013/348087

Judgment

SIMPSON J: I agree with R A Hulme J.
R A HULME J: DJW ("the applicant") applied for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) against the refusal of her Honour Judge Baly SC on 27 October 2014 to order separate trials in relation to individual complainants in respect of an indictment alleging 23 sexual assault offences against six children. The effect of the order made by her Honour was that there could be a joint trial in respect of four of the complainants but separate trials in respect of each of two of them.
The application was heard on 21 April 2015. At the conclusion of the hearing the Court granted leave to appeal but dismissed the appeal. The following are my reasons for joining in the making of those orders.

The Crown case

The applicant was married to Ms W and they had three children: RW (born in 1998), CW (2000) and DW (2002). The marriage broke down and the couple separated in 2002. The applicant then lived at various addresses including in a home unit in Dulwich Hill until around August 2007. He then moved to Carlingford after having commenced a relationship with LW. She had four children who became the applicant's step children. Three of these children are complainants: KN (born in 1995), MJ (2002) and TJ (2004).
The Crown alleges that offences concerning RW, CW and DW occurred between January 2007 and December 2009 both at Dulwich Hill and Carlingford when the children were on weekend access visits.
The offences against KN, MJ and TJ are alleged to have taken place between August 2007 and December 2011 in the home at Carlingford when LW was absent and the applicant was looking after the children.

Counts 1 - 2: offences concerning MJ (aged 8)

Sometime between 1 January and 31 December 2010 at Carlingford when MJ was 8 years old she entered the applicant's bedroom where he was lying naked on his bed. He walked over to MJ and exposed his penis to her and touched her body with it (count 1). He then sat in a chair and attempted to put his penis into her mouth and flicked his penis across her cheeks. He managed to force his penis into her mouth for a short period of time (count 2).

Counts 3 - 8: offences concerning TJ (aged 3 - 6)

Sometime between 1 January 2008 and 1 March 2011 at Carlingford when TJ was between 3 and 6 years old he was in the applicant's bedroom when the applicant kissed him on the lips and performed an act of fellatio upon him (count 4). He then forced TJ to perform fellatio upon him (count 5). The applicant then touched his mouth on TJ's anus and buttocks (count 3) and had anal intercourse with him (count 6). The applicant said to TJ: "If you tell your mum I'll punch you hard in the face".
On two separate occasions during that same time period, the applicant made TJ and MJ remove their clothes and kiss each other (counts 7 and 8).

Counts 9 - 12: offences concerning RW (aged 9 - 10)

Sometime between 1 January and 1 August 2007 RW, CW and DW visited the applicant at his Dulwich Hill unit and celebrated RW's ninth birthday. After having dinner and birthday cake the applicant made the children get undressed and dance around naked to music. This incident was the basis of complaints by both RW and CW (counts 9 and 22).
On the same evening, RW went to sleep in the applicant's bed. During the night the applicant entered the room, pulled the blankets off RW and took off her underpants. He had penile/vaginal intercourse with her (count 10). RW cried and felt pain in her vagina. She said the incident lasted more than five minutes.
On an occasion between 1 August 2007 and 31 December 2008 when RW and CW were visiting the applicant at Carlingford they went into his room to get some popcorn that he kept there. The applicant came in, shut the door and turned the light off. He picked up the girls and put them on his bed. He kissed RW on the neck (count 11). He then pulled her pants down and had penile/vaginal intercourse with her (count 12). RW heard the front door shut and LW come home. The applicant quickly got dressed and told the girls not to say anything.

Counts 13 - 17: offences concerning KN (aged 12 - 15)

Sometime between 1 August 2007 and 12 December 2011 at Carlingford the applicant committed the following offences against KN. On one occasion he pushed her onto a bean bag and rubbed his genital area against hers (count 13). Shortly after he picked her up, pulled her onto him and again rubbed his genital area against hers (count 14). On another occasion he entered the bathroom naked while KN was in the shower. He propositioned her, stepped into the shower and pushed her against the wall (count 15). On another occasion he called her into his bedroom and asked how quickly she could take her pyjamas off. She pushed him away and ran off (count 16). On another occasion KN and RW were having a pillow fight in the applicant's bedroom. He entered and told RW to keep a look out. He then removed KN's pants and rubbed his penis onto her vagina (count 17). He stopped when LW came home.

Counts 18 - 19: offences concerning DW (aged 5 - 6)

DW went to live with the applicant and LW at Carlingford in October 2007. On an occasion between 1 October 2007 and 31 December 2008, the applicant told DW to pull his pants down in the lounge room. The applicant manipulated DW's penis with his hand (count 18). On another occasion when DW was in his bedroom, the applicant came in and again manipulated DW's penis with his hand (count 19).

Counts 20 - 23: offences concerning CW (aged 7 - 9)

The offence in count 22 was alleged to have been committed at Dulwich Hill between 1 January and 1 August 2007 at the same time and in the same fashion as the offence in count 9 concerning RW.
On the day after that incident, the applicant took his clothes off and slapped CW in the face after she had accidentally scratched his computer. CW remained clothed but said that the applicant's naked body was touching hers (count 21).
On an occasion when RW and CW were visiting the applicant at Carlingford, sometime between 1 January 2008 and 31 December 2009, they were in his bedroom when he entered, turned off the lights and shut the curtains. He undressed the girls and then undressed himself. They asked the applicant what he was doing but he told them to "shut up" and pushed them onto the bed. He then hit CW and tried to put his penis into her vagina (count 20). She screamed and told him to stop but he told her to "shut up".
On another occasion at Carlingford, the applicant told CW and RW to take their clothes off (count 23). They did not do so as they were interrupted by LW who yelled at the applicant and asked him what he was doing.

Offences concerning KN to which the applicant pleaded guilty

The applicant was sentenced on 6 September 2012, following pleas of guilty, for two offences of committing an act of indecency with KN on 1 February 2011. On that day, KN was in her bedroom when the applicant entered, removed his pants and began masturbating towards her. He then directed her to lift up her top but she refused. The applicant made full admissions to this offence in a police interview and described another occasion when he said that he deposited money into KN's account in exchange for viewing her breasts.

Tendency notice

The tendency notice served by the Crown asserted that what was sought to be proved was the applicant's tendency: (a) to act in a particular way, namely to engage in sexual acts with young children; (b) to have a particular state of mind, namely a sexual interest in young children; and (c) to make use of his parental or step-parental authority to act on his sexual interest in young children.
The Crown particularised the "similarities and the underlying pattern of behaviour/circumstances" as including: "Every complainant was a child at the time of the offences. Every complainant was either the child of the accused, or the step-child of the accused. The accused used his position of authority as the father or step-father of the complainants to facilitate his sexual abuse of them. This included, for example, telling them what to do, or where to go. Thus, there was frequently a degree of coercion in the offending behaviour. The events the subject of the charges, and of the other evidence relied on by the Crown as tendency evidence, occurred in the home of the accused. The offences were frequently committed in the presence of two or more of the complainants. The offences were committed when the accused was at his home, either at Dulwich Hill or Carlingford. The offences were committed when no other adults were in the house. The accused told the complainants not to tell anybody else. The accused would sometimes quickly remove the clothing of the complainants. The accused would frequently expose himself or be naked during the commission of the crimes."

Notice of motion

A notice of motion was filed by which the applicant sought separate trials in relation to each complainant. It was common ground that determination of this application was contingent upon determination of the admissibility of the Crown's asserted tendency evidence.

Ruling

Baly SC DCJ made the following ruling: "The notice of motion is allowed in part. I order that the counts in relation to CW which are counts 20 to 23 be severed from all other counts. I order that counts concerning KN, which are counts 13 to 17, are not to be tried with those concerning RW, counts 9 to 12, and I order that the counts concerning RW, that is 9 to 12, are not to be tried with those concerning DW, that is counts 18 and 19. Whether that means a separate trial of RW from all other complainants is a matter for the Crown."
The practical effect of these orders was that there would be three trials; one concerning MJ, TJ, KN and DW, another concerning RW and another concerning CW.

Reasons for judgment

The learned judge reviewed the statutory provisions relating to tendency evidence and referred to well-known authorities which discuss the principles relevant to their application: R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308; R v Smith [2008] NSWCCA 247; 190 A Crim R 8; R v Cittadini [2008] NSWCCA 256; 189 A Crim R 492; R v Ford [2009] NSWCCA 306; 201 A Crim R 451; PWD v R [2010] NSWCCA 209; 205 A Crim R 75; DAO v R [2011] NSWCCA 63; 81 NSWLR 568; DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758; R v XY [2013] NSWCCA 121; 84 NSWLR 363; Sokolowskyj v R [2014] NSWCCA 55; Saoud v R [2014] NSWCCA 136; 87 NSWLR 481 and JG v R [2014] NSWCCA 138. The applicant did not contend that her Honour displayed any misunderstanding as to the correct approach to the assessment of the admissibility of such evidence.
Her Honour considered "whether there is a reasonable possibility of concoction and or contamination of the evidence". She quoted the following from the judgment of Hodgson JA in BP v R; R v BP [2010] NSWCCA 303: "[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]."
Her Honour continued: "Therefore, if concoction or contamination may be the explanation for apparent similarities the tendency evidence is deprived of force or significant probative value. Any chance of concoction or contamination must, however, be a real one not merely a speculative one: R v Colby. Now in BJS v R [2011] NSWCCA 239 which was a case concerned with the effect of publicity on the various complainants, Basten JA held that the second and third sentences at [110] of BP are inconsistent with the decision in R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 and should not be applied as a general rule. The same observation was made in BJS v R [2013] NSWCCA 123 at [65]. It remains however the law that a reasonable risk of concoction and or contamination as distinct from a speculative or conjectural one is relevant. And in determining whether there is a real risk it remains, in my view, the case that the relationship between the complainants, the opportunity for concoction and or contamination and any motive put forward for concoction is relevant. Factors relevant include whether there has been communication between the complainants and whether any of the complainants has been exposed to the fact of the detail of the complaints made by any other complainant, thus the timing of and the nature and circumstances surrounding the complains made by each complainant are relevant."
Her Honour reviewed the evidence in considerable detail, placing particular emphasis upon anything to do with a complainant having discussed the allegations of sexual abuse by the applicant with other complainants (Judgment pp 12 -37). She then provided her conclusions on the possibility of concoction and/or contamination: "MJ when she made her interview had very limited knowledge of allegations regarding TJ. MJ said TJ told her that the accused pulled TJ's pants down. This is nothing like what is alleged by TJ, which includes kissing allegations made by TJ and not mentioned by MJ. There is no evidence that TJ had any conversations with any other complainant. So far as KN is concerned, there is no evidence she discussed her allegation with TJ or MJ. In relation to KN the additional allegations did not emerge until later, by which time it was clear that KN was aware and had discussed RW's allegations with her, that is by 27 March 2014 when KN's additional allegations emerged. RW in turn had discussions with KN and DW, although perhaps not specifics about DW. DW learnt through RW about the allegations concerning KN's breasts and nothing more. But it is clear that DW and RW have discussed their allegations amongst themselves and had discussed the specifics of the allegations. So far as CW is concerned, it was not until April this year that CW made her allegations, despite the fact that she was interviewed in 2011. She learnt of RW's allegations four months before making her statement in May 2014. CW's allegations first emerged to a teacher in April 2014. It is clear that CW by the time she made her 2014 statement knew about RW's allegations. She knew about KN's allegations, at least in part, and she knew that there were allegations in relation to TJ and MJ."
Her Honour then referred again to BP v R; R v BP and JG v R before concluding on the issue of concoction and contamination: "In so far as motive is concerned there is no evidence and there is no obvious motive for concoction. In relation to the other considerations, relationship and opportunity, there is clearly relationships existing between all of the complainants and there has clearly been opportunity, although that varies between the complainants. There have clearly been conversations as outlined in the analysis above and there have clearly been visits between the households. Factoring in the evidence of the actual communication and the complaints and the timing of the complaints, I make the following finding in so far as whether there is a real risk of contamination and concoction between some of the complainants or all of the complainants. In my view that risk applies to some of the complainants. In my view the evidence in relation to Facebook does not allow me to draw any conclusions beyond those I have already spoken of in relation to KN and RW. In my view the evidence does not allow me to make general findings that there was two way communications between the households. The only conclusion I can make is based upon the evidence I have gone through and concerns actual communication. I do not draw a general conclusion that there was always communications; that would in my view amount to speculation. I do not place any weight on the opinion of Mr Taylor [a psychologist who assessed DJW for sentencing purposes], the report of Mr Taylor which was made when there was only one allegation involving KN. In my view a real risk does exist in relation to the allegations made by CW. In my view CW should be tried separately to all other complainants. That is based on the fact that her complaint emerged only months ago and after discussions with other complainants and in the light of the fact that she made no complaint in 2011. In addition I find that there is a real risk of concoction as between KN and RW and as between DW and RW."
Her Honour then turned to the question more generally of "significant probative value" of the evidence, although putting aside that concerning CW: "Applying the s 97 standard that the evidence must have significant probative value I accept firstly that there is a variety of allegations and that the allegations do not necessarily exhibit close similarity, however in my view there is a similar course of conduct alleged. What is shown is a sexual interest on the part of the accused in his children whether they be his own or those of his partner which he himself describes as a step-father relationship. I accept that there is shown an underlying pattern whereby the accused used his position to facilitate the alleged sexual abuse. I do not place any weight upon the fact that the complainants are of different genders and that the complainants were of different ages, in my view that is not material and it does not deprive the evidence of significant probative value: R v SK; SK v R [2011] NSWCCA 292. I place a great deal of weight on the fact that all the complainants were his children and all of the acts were done in his home. I accept that there was frequently a degree of coercion or a use of force or some violence or threats and that there were threats made to the complainants not to disclose and I base that conclusion upon what I have read in exhibit A [sic - Exhibit A was the tendency notice and Exhibit B was the bundle of statements and interviews referred to therein] as well as the analysis provided by the Crown in exhibit E [a table of references to the "use of force, violence, threats or admonitions to not disclose"]. Again I place weight on the fact that all events occurred in the home of the accused. I place weight on the fact that there were no adults in the house at the relevant time. I accept the Crown's submission that the accused was frequently naked or at least partially naked. I pause to consider the allegations in relation to the prior conviction concerning the viewing of KN's breasts and I note that in that allegation monies were paid into her bank account. This is a difference that does stand out in my mind, however in my view the significance of that difference does not deprive the proposed tendency evidence of its significant probative value, that is having regard to the other factors and circumstances that point strongly in my view to an underlying pattern of behaviour and a sexual interest by the accused in his children. By way of conclusion in relation to each remaining count and the evidence concerning the allegation of KN to which the accused pleaded guilty, in my view that evidence does have significant probative value in that it is capable of being an important circumstance establishing a definite tendency on the part of the accused to engage in sexual misconduct with his children or step-children. In my view the Crown has discharged the onus of establishing significant probative value."
Finally, her Honour turned to the requirement in s 101 that the "probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant": "Again the onus is on the Crown to establish that the probative value of the tendency evidence substantially outweighs any prejudicial effect. I must factor in the ameliorating effect of directions including that any tendency evidence that is used must be proven beyond reasonable doubt. No specific prejudicial effect has been identified and I note that this is not a case of, for example, where there is some deviant behaviour which is inherently likely to raise prejudice. The applicant in my view has not identified how the risk of misuse by the jury could arise. It is no answer to make general statements about prejudice in a general way, see SK at para 34 per Latham J. The Crown has satisfied me that the probative value of the tendency evidence does substantially outweigh any prejudicial effect."

Submissions for the applicant

The sole ground of appeal is that her Honour erred in not ordering a separate trial for each complainant but the principal issue is the correctness or otherwise of the ruling upon the admissibility of tendency evidence.
Counsel for the applicant who was the author of written submissions (but who did not appear at the hearing) identified that: "The issue in this case was whether or not there was, in respect to each complainant, a real risk of concoction or contamination and, if there was, what effect that should have on the assessment of the probative value of the evidence."
Four specific contentions were raised in the written submissions which will be dealt with in turn.

Error in concluding no real chance or possibility of concoction or contamination between MJ, TJ and KN

Submissions

The applicant submitted that her Honour concluded that MJ had very limited knowledge of the allegations made by TJ but she failed to take into account that MJ had told police in his interview that, "[TJ] tells me everything".
It was also submitted that her Honour referred to KN saying in her statement that she had not spoken with TJ or MJ about sexual abuse. But RW said in her police interview that KN had told her that the applicant had done things to MJ and TJ. KN did not say anything in her interview about witnessing any offending against MJ or TJ so it may be inferred that KN had been told about it by one or the other (or both). Accordingly, her Honour was in error in saying that there was no evidence that KN had "discussed her allegation with TJ or MJ".
The Crown did not challenge the decision to sever the trials concerning RW and CW. But it was submitted that this was not a case in which there were competing inferences of concoction or contamination arising in relation to the other four complainants and the decision to refuse separate trials in respect of them should be maintained.

Consideration

It was implicit in the written submissions, and made explicit at the commencement of the hearing (T1.32), that the applicant accepts that there was no error by the primary judge in identifying the correct principles to apply to the determination of the admissibility of tendency evidence. As a consequence, it is unnecessary for this Court once again to refer to the principles in detail. They are more than adequately set out in the cases to which the primary judge referred (see above at [26]).
It is, however, necessary to refer in some detail to a case in which judgment was delivered after the primary judge's determination. The judgment is presently restricted: Jones v R [2014] NSWCCA 280. In that case, the primary judge had held that questions of possible concoction or contamination relate to the reliability and credibility of the evidence. This was said to be so on the basis that Hoch v The Queen and post-Evidence Act cases that had applied it, notably BP v R; R v BP and FB v R, should not be followed. In accordance with cases such as R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 and R v XY the probative value of the evidence was not to be determined by an assessment of its reliability and credibility.
In Jones v R, Bellew J (Gleeson JA and Schmidt J agreeing) considered (at [87]) that the primary judge had gone too far in holding that R v Shamouil prohibited, under any circumstances, consideration of issues of credibility. He referred to some of the judgments in DSJ v R; NS v R and R v XY and said (at [88]) that they supported the conclusion that in assessing probative value a court may take into account, without determining the acceptance or rejection of, such competing inference(s) as may arise from the evidence. Whether that may extend to allowing a court to take into account concoction and contamination was said (at [89]) to be a separate question which would depend largely upon the evidence. His Honour allowed (at [90]) for the possibility that evidence of concoction and contamination may give rise to competing inferences that may be relevant to a determination of the probative value of the evidence.
What was said by Bellew J in Jones v R was strictly obiter; the determination of the case was based upon a finding that it was open to the primary judge to have found that there was an absence of evidence of concoction or contamination. Nevertheless, I respectfully agree with his Honour's reasoning with one relatively minor exception. That is that Simpson J in R v Burton [2013] NSWCCA 335; 237 A Crim R 238 at [189]-[194] (with which Barr AJ and I agreed) identified that in R v XY, only two of the five judges constituting the Court accepted the relevance of there being competing inferences to the assessment of probative value for the purposes of s 137. R v Shamouil and R v XY were concerned with that provision. DSJ v R; NS v R was concerned with s 98 (coincidence evidence). In JG v R, Simpson J said (at [105]) that (on the authority of DSJ v R; NS v R) competing inferences were also potentially relevant to the assessment of probative value in relation to s 97. The distinction is that ss 97 and 98, but not s 137, require consideration of "other evidence adduced or to be adduced by the party seeking to adduce the evidence".
The primary judge in the present case was in error (the decision in Jones v R was not available to her) in determining the issue of concoction or contamination quite separately from the issue of whether the evidence had significant probative value. Whilst her Honour acknowledged what was said by Basten JA in BJS v R [2011] NSWCCA 239 in criticism of BP v R; R v BP, the separate treatment by her of the concoction/contamination issue, and finding that it was determinative by itself in respect of the trials concerning RW and CW, indicated an approach which was more akin to the Hoch approach. The Crown submitted, and I respectfully agree, that this resulted in her Honour adopting an approach that was unduly favourable to the applicant.
In the present case I am prepared to assume that the issue of possible concoction or contamination in the present case could give rise to a competing inference in the assessment of whether there was significant probative value. I am prepared to make this assumption because the applicant's submissions on this subject must all be rejected in any event.
The applicant relied upon the statement by MJ to police that "[TJ] tells me everything" as a failure of the judge to take into account a material consideration. It was submitted that in light of this, it was not open for the judge to conclude that there was no real risk of contamination in relation to MJ.
There is no merit in this. MJ made this statement when she was being asked by police about how she knew of TJ's complaint that the applicant had pulled his pants down. The judge specifically mentioned that "MJ said TJ told her that the accused pulled TJ's pants down" but observed that "this is nothing like what is alleged by TJ" (Judgment p 15). It was well open to the judge not to find any real possibility of concoction or contamination on this account.
The asserted inference that KN must have spoken with either or both of MJ and TJ about their allegations was said to arise from something RW told police. This is a rather flimsy foundation for a conclusion that there is a real risk of contamination. And it is contradicted by KN saying in her statement of 8 December 2012 that: "TJ and MJ have never spoken to me about anything that has happened to them with the accused. I have never spoken about my sexual abuse with TJ or MJ … I have never talked about sex or sexual abuse with TJ or MJ".

Her Honour erred in not ordering a separate trial for DW

The applicant referred to her Honour's conclusion that "there is a real risk of concoction as between KN and RW and as between DW and RW". It was submitted that as this was assessed as a risk of concoction rather than contamination there must be doubt about the entirety of DW's evidence. This should have led to her Honour ordering a separate trial for DW.
RW's allegations are of the applicant requiring her and CW to dance whilst naked; kissing her on the neck; and having penile/vaginal intercourse with her. DW's allegations are of the applicant fondling his penis. Her Honour found that RW and DW had discussed "the specifics of the allegations". But having regard to their different gender and the differences in their allegations the prospect of "concoction" would appear to be remote.
After the judge had announced her reasons for judgment on 27 October 2014, the Crown Prosecutor sought some clarification which included: "CROWN PROSECUTOR: And as I understood it … your Honour was quite deliberately using the words 'contamination and concoction' in different sentences and different ways. HER HONOUR: It's contamination that I've really ruled upon."
It seems, therefore, that her Honour may have used the word "concoction" in relation to RW and KN, and RW and DW, when she intended the word "contamination". In any event, I consider the submission that there must be doubt about the entirety of DW's evidence as a substantial overstatement. I am not persuaded that the fact that DW had discussed his allegations with RW denied his evidence the probative value her Honour assessed.
Counsel for the applicant made further submissions at the hearing concerning the refusal of the judge to order a separate trial in relation to DW. The submissions were concerned with RW telling police in her interview that DW had said "he was joking" when he had earlier said, according to RW, that the applicant had tried to rape him. The judge had included this in her review of the evidence (Judgment at p 25). She also referred to RW having said in the same interview that DW had proceeded to tell her that the applicant "was just playing with him … like pulling the foreskin back". The latter is consistent with the offences alleged concerning DW, allegations that the applicant fondled DW's penis.
The further submissions also made reference to RW and DW having discussed their "secrets". Again, this was included in the judge's review of the evidence.
These two additional matters did not support severance of the trial of DW from those concerned with MJ, TJ and KN. They did support, in the judge's view, severance of the trials of RW and DW. There was no suggestion of DW having been involved in discussions of his allegations with any other complainant, or of other complainants discussing their allegations with him. The submission that there was "a risk of contamination in relation to DW" in relation to complainants other than RW is not supported by the evidence.

The evidence of KN, additional to the above, is too dissimilar to the evidence of the other complainants to have significant probative value

The offences alleged in respect of MJ (indecent touching and fellatio) were said to have occurred when she was aged 8 and the offences alleged in respect to TJ (indecent touching, fellatio and anal intercourse) were said to have occurred when he was aged 3 to 6. In contrast, the offences alleged in respect of KN (various forms of indecent assaults) were said to have occurred when she was aged 12 to 15. There were also the offences concerning KN to which the applicant had pleaded guilty which occurred when she was 15 and involved masturbating in her presence, asking her to reveal her breasts, and admitting to having paid her money in the past in order to show him her breasts. Accordingly, it was submitted that the acts were dissimilar and the difference between the ages of MJ and TJ on the one hand and of KN on the other was indicative of the applicant having a different state of mind.
The judge was mindful of the different ages of the complainants but found that this was not significant. She was also mindful that "the allegations do not necessarily exhibit close similarity". (This was correct: see, for example, R v Ford [2009] NSWCCA 306 at [43], and Sokolowskyj v R at [36].)
The applicant's submission should be assessed in the context of the various matters her Honour took into account in coming to the conclusion that there was "significant probative value" (see above at [31]). Without referring to every matter, her findings included that "there is a similar course of conduct alleged" and "there is shown an underlying pattern whereby the accused used his position to facilitate the alleged sexual abuse". These were findings that related as much to the offences concerning KN as to any of the other complainants. Having regard to the matters her Honour did take into account it cannot be said that the assessment was not one that was open to be made.

Her Honour did not give appropriate weight to the prejudicial effect of the evidence when weighing it against its probative value

It was submitted that her Honour erred when she said "No specific prejudicial effect has been identified"; there was no "deviant behaviour which is inherently likely to raise prejudice"; and "the applicant … has not identified how the risk of misuse by the jury could have arose". This "ignores the inherent identifiable prejudice in tendency evidence and also in prior convictions". Reference was made to a discussion of "prejudicial effect" in Sokolowskyj v R at [47]-[50]. It was submitted that the "types of prejudice outlined [in that judgment] including [the applicant's] prior conviction and 'deviant behaviour' were present in this case".
This was not a submission that was developed any further in oral argument, except for counsel to acknowledge the practical reality that evidence of prior convictions would not be before the jury (T8.44). This was understandable in my view as it has no merit.
Sokolowskyj v R was a case in which the tendency evidence concerned the alleged offender having exposed himself to women when he was in public places whilst masturbating on three separate occasions some five to nine years before the offence in question was allegedly committed. The offence alleged was that he had taken an eight year old child into a public toilet, closed the door and indecently assaulted her. Hoeben CJ at CL identified (at [48]) the potential prejudice as involving the jury thinking that the accused was a "sexual deviant" who was "the sort of person who was likely to have committed the offence alleged against him". Another danger was that the jury would be "so emotionally affected by the evidence that they would disregard the accused's version and disregard judicial directions to assess the evidence in an unemotional manner". A third danger was that the jury might be "disinclined to give the accused the benefit of any reasonable doubt".
The types of prejudice identified in Sokolowskyj v R is far removed from anything identified in the present case. In fact, no specific prejudice was identified in the present case and this was acknowledged at the hearing (T8.20). Counsel who appeared at the hearing pressed a submission that there was error in the judge not weighing any "identifiable prejudice" against the probative value of the tendency evidence and also submitted that there was a potential for a jury to consider the applicant's behaviour as "deviant".
My reading of the judge's reasoning leaves me with the view that her Honour was well aware that tendency evidence in cases such as this has an inherent prejudicial effect but that could be adequately dealt with by directions which would include that before the tendency evidence could be taken into account it must be proved to the criminal standard. It was open for her to conclude that "this is not a case … where there is some deviant behaviour which is inherently likely to raise prejudice". She made reference to the judgment of Latham J in R v SK; SK v R [2011] NSWCCA 292 where her Honour said: "[34] … [T]he applicant did not identify how the risk of misuse of the evidence by the jury could arise. It is no answer to make general statements about the arousal of prejudice. A jury's antipathy towards an accused, assuming that the accused is guilty and failing to properly consider a defence are all potential by-products of tendency evidence. In that sense, the nature of tendency evidence is inherently prejudicial, hence the need for strong directions, including the requirement that the tendency evidence be proved beyond reasonable doubt. It is not however, prejudicial simply because it tends to prove the commission of the offences. That constitutes, subject to proper directions, appropriate use of the evidence, not its misuse."
There was no error in the judge's weighing of the probative value and the prejudicial effect.

Conclusion

The foregoing are my reasons for joining in the orders made at the conclusion of the hearing on 21 April 2015: 1. Leave to appeal granted. 2. Appeal dismissed.
BELLEW J: I agree with R A Hulme J.

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Evidence Act 1995(NSW)ss 97, 98, 101, 137

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