DR v R

Court of Criminal Appeal (NSW)|2019-09-30|Before: Hoeben CJ, Brereton JA, Cavanagh J, Hunt J

HEADNOTE [This headnote is not to be read as part of the decision] The appellant was convicted of offences of sexual assault of two children: JR (aged between five and eight at the time of the offences), who was one of two children of the appellant and his de facto partner LF, and KF (aged between eight and eleven years at the time of the offences), who was LF's daughter and thus the appellant's de facto step-daughter. In respect of four of those offences, against KF, he was the sole accused. In respect of five (four against KF and one against JR), he was charged and convicted jointly with his brother-in-law AS. In respect of two (against KF), he was tried and convicted jointly with PV. AS was also convicted of another ten counts (6 against KF and 4 against JR), and PV of one other count (against JR). The appellant had applied to be tried separately from PV, if it was determined (as it was) that tendency evidence would be admitted against PV that he had previously committed acts of sexual assault against his own daughter JV. Following a pre-trial hearing, the application for separate trials was rejected, and it was ruled that the evidence of KF and JR was admissible as tendency and coincidence evidence in the trials of each accused, and that the evidence of JV was admissible as tendency evidence on the counts against PV and as against PV only. At the trial, evidence was admitted, against PV only, that in 2000 he had pleaded guilty to four offences of sexual assault, and admitted a further six such offences which were taken into account when he was sentenced, against his daughter JV, and served a sentence of imprisonment for them; and that in 2001, he had told a forensic psychiatrist that he was aware of a sexual interest in female children around the age of pubescence, particularly when their breasts were just starting to develop, and acknowledged fantasising about female children. In addition, in the course of the trial, PV's counsel in cross-examination elicited evidence to the effect that PV was on the child protection register at the time the alleged offences were committed, and that the appellant knew that, and knew that PV had been in gaol for things of a sexual nature done to his daughter. None of this evidence was the subject of any objection, nor was any limitation sought or placed upon its use, nor was any specific direction sought in respect of it. The appellant appealed, his essential complaint being that a miscarriage of justice arose from the appellant being tried jointly with PV in circumstances where evidence was admitted against PV which was inadmissible against but prejudicial to the appellant, in particular the statement of agreed facts, and the associated evidence to the effect that PV was, to the appellant's knowledge, on the child protection register. Held (by Brereton JA; Hoeben CJ at CL (at [1]) and Cavanagh J (at [91]) agreeing), dismissing the appeal: 1. Where an appellate court is asked to set aside a verdict on the ground that a miscarriage has occurred as a consequence of the accused being tried jointly with a co-accused, the essential issue is whether there has been any real injustice done to that accused (at [21]): R v Alexander and McKenzie (2002) 6 VR 53; [2002] VSCA 183 at [28]. 2. There is a risk of unfair prejudice if evidence which was admissible against PV but not against the appellant created unacceptable collateral prejudice (by establishing bad character or other prejudicial connotations); or if there is a real possibility that it impermissibly bolstered a relatively weak case against the appellant against whom the same evidence was inadmissible, and in either case the risk of prejudice was not cured by judicial direction (at [18]-[19]): R v Middis (Supreme Court of NSW, Hunt J, 27 March 1991, unreported); Young v The Queen [2015] VSCA 265 at [37]; Decision restricted [2019] NSWCCA 276. 3. The case was not one of which it could be said that the evidence against the appellant was significantly weaker than and different to that admissible against PV. The case against PV formed a relatively small part of the case as a whole. The evidence that was admissible against PV alone played a very small part in the trial as a whole. To a significant degree it was overshadowed by the confronting evidence that was admissible against the appellant. It did not include any reference to the appellant. Any risk of prejudice arose from the possibility that the jury would engage in reasoning that was not only impermissible, but illogical, of guilt by association (at [66], [87]). 4. While no specific direction was given concerning the evidence that tended to show that the appellant knew that PV was a convicted child sex offender, none was sought, and this - together with the absence of objection to the evidence when it was adduced - is indicative that it was not considered to be of significance in the trial. Any risk of prejudice in this respect was mitigated by the judge's directions that the Crown case was "wholly reliant" on the evidence of KF and JR, and that before the jury could convict they should examine the evidence of the complainants carefully, in order to satisfy themselves that they could safely act upon that evidence to the highest standard required in a criminal trial of beyond reasonable doubt; that the case against each accused must be considered separately and in light only of the evidence that applied to that accused; that the agreed facts were admissible only against PV and played no part in the case against the appellant or AS, and that the jury must have no regard whatsoever to them when considering the cases against the appellant and AS (at [84], [88]). 5. There was no unacceptable risk of prejudice to the appellant from the reception into evidence against PV in the joint trial of the statement of agreed facts, and no real injustice done to the appellant as a consequence of his having been tried jointly with PV (at [89]).

Judgment

HOEBEN CJ at CL: I agree with Brereton JA and the orders which he proposes.
BRERETON JA: On 23 August 2017, following a trial which had commenced on 3 July 2017 before Girdham DCJ and a jury, the eleven remaining members of the jury returned unanimous verdicts in respect of 35 counts of sexual assault of children against three accused - the appellant, his brother-in-law (sister's husband) AS, and his friend PV. [1] There were two complainants: JR (aged between five and eight at the time of the offences), who was one of two children of the appellant and his de facto partner LF, and KF (aged between eight and eleven years at the time of the offences), who was LF's daughter and thus the appellant's de facto step-daughter.
On the seven counts which related to the appellant alone (Counts 1 to 7), there were verdicts of guilty in respect of four offences against Crimes Act 1900 (NSW) (Crimes Act) s 66C(2) (aggravated sexual intercourse with person aged 10-14 (under authority)), the victim in each case being his de facto step-daughter KF who was aged 10 at the time of those offences (Counts 1, 3, 5 and 7); verdicts were not required on three alternative charges of offences against s 61M(2) (indecent assault of person under 16) in respect of the same acts (Counts 2, 4 and 6).
On the seventeen counts which related to AS alone (Counts 8 to 24), there were verdicts of guilty on ten, namely: 1. indecent assault of person under 16 (KF), contrary to s 61M(2) (Count 9); 2. aggravated sexual intercourse with person under 10 (under authority) (JR), contrary to s 66A(2) (Count 10); 3. indecent assault of person under 16 (KF), contrary to s 61M(2) (Count 12); 4. indecent assault of person under 16 (KF), contrary to s 61M(2) (Count 17); 5. expose person under 16 to indecent material with intention of making it easier to procure person for unlawful sexual activity (KF), contrary to s 66EB(3) (Count 18); 6. aggravated sexual intercourse with person under 10 (under authority) (KF), contrary to s 66A(2) (Count 19); 7. incite person under 10 to commit act of indecency (KF), contrary to s 61O(2) (Count 21); 8. aggravated sexual intercourse with person under 10 (under authority) (JR), contrary to s 66A(2) (Count 22); 9. aggravated sexual intercourse with person under 10 (under authority) (JR), contrary to s 66A(2) (Count 23); and 10. act of indecency towards person under 10 (JR), contrary to s 61O(2) (Count 24).
There were verdicts of not guilty on six of the other counts (indecent assault, act of indecency and inciting his own sons to commit sexual offences), and a verdict was not required on one alternative charge.
On the six counts which charged the appellant and AS jointly (Counts 25 to 30): 1. in respect of Count 25 (aggravated sexual intercourse with person under 10 (in company) (KF), contrary to s 66A(2)), there were verdicts of not guilty, but guilty of the statutory alternative under s 66A(1) (not in company) against both accused; 2. in respect of Count 26 (aggravated sexual intercourse with person under 10 (in company) (JR), contrary to s 66A(2)), there were verdicts of not guilty, but guilty of the statutory alternative under s 66A(1) (not in company) against both accused; 3. in respect of Count 27 (aggravated sexual intercourse with person under 10 (in company) (KF), contrary to s 66A(2)), there were verdicts of guilty against both accused; 4. in respect of Count 28 (aggravated sexual intercourse with person under 10 (in company) (JR), contrary to s 66A(2)), there were verdicts of not guilty, and not guilty to the statutory alternatives, against both accused; 5. in respect of Count 29 (aggravated sexual intercourse with person under 10 (in company) (KF), contrary to s 66A(2)), there were verdicts of not guilty, but guilty of the statutory alternative under s 66A(1) (not in company), against both accused; and 6. in respect of Count 30 (aggravated sexual intercourse with person under 10 (in company) (KF), contrary to s 66A(2)), there were verdicts of not guilty, but guilty of the statutory alternative under s 66A(1) (not in company), against both accused.
On the four further counts which charged the appellant and PV jointly (Counts 31 to 34): 1. in respect of Count 31 (aggravated sexual intercourse with person aged 10 - 14 years (in company) (KF), contrary to s 66C(2)), there were verdicts of guilty against both accused; 2. in respect of Count 32 (indecent assault of person under 16 (KF), contrary to s 61M(2)), which was charged in the alternative to count 31, no verdict was required; 3. in respect of Count 33 (aggravated sexual intercourse with person aged 10 - 14 years (in company) (KF), contrary to s 66C(2)), there were verdicts of not guilty against both accused; but 4. in respect of Count 34 (indecent assault of person under 16 (KF), contrary to s 61M(2)), which was charged in the alternative to Count 33, there were verdicts of guilty against both accused.
On the remaining count (Count 35), which related to PV alone (sexual intercourse with person under 10 (JR), contrary to s 66A(1)), there was a verdict of guilty.

The pre-trial applications

The joint trial of all the accused and counts followed a pre-trial hearing, which commenced on 12 September 2016, for the prerecording of the complainants' evidence, and the determination of applications by the Crown to rely on tendency and coincidence evidence of KF and JR against each accused, and of PV's daughter JV against PV, and by each accused for severance of the indictment. Ultimately, the appellant sought severance only from PV, and only if the tendency evidence concerning JV was admitted. The substance of the tendency evidence concerning JV was that PV had committed, been convicted of, and imprisoned for sexual offences against her between 1992 and 1998 when she was aged about 12. For the appellant, it was submitted that this evidence was "explosive" and would occasion "impermissible prejudice" to the appellant that could not be cured by directions.
On those applications, in a careful and thorough judgment delivered on 30 March 2017, Traill DCJ (who was not ultimately the trial judge) dismissed the applications for separate trials; ruled that the evidence of KF and JR was admissible as tendency and coincidence evidence in the trials of each accused, and that the evidence of JV was admissible as tendency evidence in relation to Counts 31 to 35 only against PV; and ordered that the trials in relation to all counts be heard together.
Addressing the question whether the reception of the tendency evidence concerning JV would occasion unfair prejudice to the appellant in a joint trial, her Honour noted that this Court has often said that juries will follow directions, and continued: In my view, the jury would be capable of being able to follow directions specifically in relation to JV's evidence as it clearly only relates to the accused PV and not the other accused. A jury can be given strong directions that the tendency and coincidence reasoning in relation to counts 31 to 35 and the evidence of JV can only be used as tendency reasoning in relation to PV. Courts operate on the basis that juries abide by directions given to them in criminal trials. More recently the Royal Commission published a report dated May 2016 'Jury Reasoning in Joint and Separate Trials of Institutional Child Sexual Abuse An Empirical Study' by Professor Goodman-Delahunty, Professor Cossins and N Martschuk. Tendency and coincidence evidence has particular significance in relation to the Royal Commission. The mock trials in the Royal Commission study were designed to interrogate three types of unfair prejudice. (1) Inter Case Conflation/Prejudice: The idea that juries would confuse or conflate evidence led to support different charges in a joint trial and wrongly use evidence relating to one charge to consider another charge. (2) Accumulation Prejudice: The idea that juries will assume that the accused is guilty because of the number of charges against him or the number of prosecution witnesses regardless of the strength of the case. (3) Character Prejudice: The idea that juries will use evidence about the accused other criminal misconduct and find guilt by reasoning that because he did it once he has done it again. [45-48]. The research found that no verdicts were based on persistent, uncorrected or inter case conflation of the evidence. The researchers also found that there was no accumulation prejudice and most significantly in relation to character prejudice evaluation of the jury deliberations revealed that no juries in either the tendency evidence or joint trials impermissibly used the tendency evidence to conclude that the defendant was guilty because of the number of allegations of prior misconduct that were made. The researchers found no evidence of verdicts motivated by emotional reactions to the severity of the allegations such as a sense of horror regarding allegations or a desire to punish the defendant. The researchers ultimately concluded that "the low frequency of isolated examples of reasoning and deliberations involving inter case conflation of the evidence, accumulation prejudice or character prejudice suggests that the likelihood of impermissible reasoning whether in joint trials or separate trials is exceedingly low. This low probability suggests that there is negligible unfair prejudice to the defendant in joint trials where tendency evidence is admitted". (Ibid [35]). The researchers found no evidence of emotional or illogical reasoning by juries in any of the trials in which tendency evidence was admitted. There was no support for the hypothesis that joint trials lead to impermissible reasoning. We now have an empirical study indicating that there is little unfair prejudice and, in my view, the jury will accept the directions given in relation to the tendency and coincidence and further directions as to what tendency evidence is to be led in relation to each accused.
The appellant did not seek leave, as he might have, under Criminal Appeal Act 1912 (NSW) s 5F, to appeal from the pre-trial ruling. [2] The trial therefore proceeded on the basis determined by her Honour, and the tendency evidence concerning JV - which is described in further detail below - was admitted - only against PV - in the course of the joint trial, with the result that the jury that determined the matters charged against the appellant was inevitably aware it.

The tendency evidence pertaining to PV

That evidence comprised a statement of agreed facts, which became Exhibit 40, and relevantly included that: 1. on 7 December 2000, PV had pleaded guilty to four charges and admitted he had committed a further six offences which were taken into account when he was sentenced, the victim being his daughter JV; 2. the four offences to which he pleaded guilty each involved an act of sexual intercourse (in three cases penile/vaginal intercourse and the fourth fellatio) with his daughter JV when she was aged between 11 and 15; 3. the six further offences taken into account were aggravated indecent assaults and involved contact between PV`s penis and JV's genitals or other body parts; 4. PV was sentenced to imprisonment for a total of four years; and 5. in 2001, PV told a forensic psychiatrist that he was aware of a sexual interest in female children around the age of pubescence, particularly when their breasts were just starting to develop, and acknowledged fantasising about female children.
In addition, in the course of the trial, in cross-examination of the officer-in-charge, PV's counsel elicited evidence that PV was on the child protection register at the time the alleged offences were committed, and in compliance with his obligations to notify a change of address had gone to Wyong Police station with the appellant on 26 September 2013 and informed police that he would be living with the appellant; police attended the address the next day and PV left when told it was not a suitable address. [3] Further, evidence was elicited from the appellant's de facto partner LF (in cross-examination by PV's counsel) that she and the appellant had known PV for more than eight years at the time of the trial in 2017; that when they first met PV he told them that he had been in gaol for things of a sexual nature done to his daughter; and that the appellant responded that he believed that everyone deserved a second chance; but that she did not thereafter leave the children alone with PV. [4] None of this evidence was the subject of any objection, nor was any limitation sought or placed upon its use, nor was any specific direction sought in respect of it.

The grounds of appeal

The appellant appeals to this court against his convictions, on the following ground: A substantial miscarriage of justice was occasioned in that: (a) evidence was led in the joint trial which was inadmissible against the appellant that was highly prejudicial such that there was a real danger that its prejudice could not be cured, even by careful direction; (b) the applications for a separate trial in relation to counts 31 to 34 and 35 should have been granted because of the Crown adducing tendency evidence in relation to [PV] and Counsel for [PV] at trial adducing evidence that her client was on the Child Protection Register at the time of the commission of the offences.
The evidence referred to in sub-paragraph (a) is the tendency evidence concerning JV, and in particular the agreed statement of facts admitted in the case against PV, and the evidence adduced at the trial to the effect that he was, to the appellant's knowledge, on the child protection register. The appellant did not take issue with the admission of tendency evidence in relation to Counts 1 to 30 relating to the appellant and AS, nor with the appellant and AS being tried together; the complaint was confined to the appellant being tried jointly with PV. [5] Thus the essential complaint is that a miscarriage of justice arose from the appellant being tried jointly with PV in circumstances where evidence was admitted against PV which was inadmissible against but prejudicial to the appellant, in particular the statement of agreed facts, and the associated evidence to the effect that PV was, to the appellant's knowledge, on the child protection register.
The respondent submitted that leave to appeal was required, on the basis that the sole ground of appeal involved a question of fact, namely that the appellant was tried jointly with PV. The appellant did not, at least expressly, seek leave to appeal. As will appear, decisions about prejudice in joint trials tend to be fact-specific. Nonetheless, the appeal does not involve a challenge to any finding of fact, and I am content to accept it involves a question of law alone, so that leave is not required. If leave were required, I would grant leave to appeal.

Miscarriage of justice from a joint trial

It is well-established that, as a general rule, persons charged with committing an offence jointly should be tried together. [6] This is so, notwithstanding that some prejudice to one or other accused is almost inevitable, [7] because the prejudice may be obviated by appropriate directions to the jury, [8] and it is assumed that juries obey directions. [9] Separate trials should be ordered only where a joint trial would produce a real risk (as opposed to a remote possibility) of positive injustice, in the sense of prejudice that cannot be cured by direction, [10] sufficient to outweigh the public interest in the efficient dispatch of trials, the conserving of costs and the avoidance of inconvenience to witnesses by having to attend multiple trials. [11]
Unfair prejudice may arise, where evidence admissible against one accused is inadmissible against the other, in two ways: first, that evidence may create unacceptable collateral prejudice, by establishing bad character or other prejudicial connotations; and secondly, it may impermissibly bolster an otherwise relatively weak case against an accused against whom it is inadmissible; but in either case that will be so only if the risk of prejudice cannot be cured by judicial direction. [12] A separate trial will usually be ordered in relation to the charges against an accused who applies for severance where (1) the evidence against the applicant is significantly weaker than and different to that admissible against the other accused; (2) the evidence against the other accused contains material highly prejudicial to, but not admissible against, the applicant; and (3) there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by the prejudicial material. [13] However these guidelines are not exhaustive, and each case must depend upon its own facts. [14]
A Court of Criminal Appeal considering whether injustice has accrued to one of the accused from a joint trial is in a different position to a trial judge considering an application for severance at the outset of the trial, as was explained by Winneke P (with whom Charles and Vincent JJA agreed) in R v Alexander and McKenzie: [15] [26] Whilst it is significant for an appellate court to be satisfied that an application for a separate trial has been made and refused, the issue for it will depend not so much upon an erroneous exercise of the judge's discretion as it will upon the view which it forms upon the question whether the course of the trial has constituted a miscarriage of justice to the applicant. This was made clear in R v Demirok [[1976] VR 244] where the Full Court, comprising Young CJ, Lush and Crockett JJ, said (at 251): "The ordering of separate trials ... is a matter within the discretion of the trial judge. Usually, although not necessarily, ... the application is made before the trial itself has started ... .At this point in the trial, the knowledge available to the judge of the course which the trial is likely to take is based upon the depositions ... . It will appear from the depositions whether the accused have made statements to the police, and whether those statements involve a denial or admission of guilt. The judge is aware that it is possible that all the accused, or some or none of them, may give evidence. In the case of accused persons who are alleged to have made statements, the judge does not know whether the statements will be acknowledged or repudiated, adhered to or departed from. He does not know whether accused persons who appear from their statements to be giving the same account of events will, in the result, be in difference between themselves. The possibilities of the outcome of which the judge is necessarily ignorant can be multiplied indefinitely. Nevertheless a decision must be made. [I interpolate that these statements were made before the practice and procedure in criminal trials was changed by the Crimes (Criminal Trials) Act 1993.] When the judge's exercise of discretion comes to be challenged in an appellate court, the trial has been completed and the appellate court has the advantage of knowing how, in the end, it was conducted. This circumstance means that any review of the judge's discretion has unusual qualities. If it can be shown that the judge made an error in the exercise of his discretion the appellate court will nevertheless not put the judge's discretion aside, and substitute a different view of its own, unless, in the event, it considers that the course of the trial constituted a miscarriage of justice. Conversely, if the decision of the trial judge was in itself a decision which the appeal court would consider to be unimpeachable, it may nevertheless appear that developments at the trial were such as to constitute a miscarriage of justice. In the latter case, the ground of appeal taken no doubt should not be the ground that the trial judge's discretion miscarried, but simply that, because of the course of events which developed during the trial, the nature of the trial constituted such a miscarriage." Their Honours referred to a number of authorities from England and other States of Australia to support the propositions which they had stated [R v Grondkowski [1946] KB 369, per Goddard CJ at 371, 373; R v Kerekes (1953) 70 WN(NSW) 102 at 105, per Owen J; R v Teitler [1959] VR 321 at 325, per Lowe and O'Bryan JJ, at 335 per Sholl J].
Thus, where an appellate court is asked to set aside a verdict on the ground that a miscarriage has occurred as a consequence of the accused being tried jointly with a co-accused, the essential issue is whether there has been any real injustice done to that accused: [16] [31] … Different considerations must necessarily apply depending upon whether the trial judge is considering an application for severance at the outset of the trial; or whether an appellate court is considering whether injustice has accrued to one of the accused from the joint trial. In each circumstance, the touchstone must remain general. Where the trial judge is considering an application for separate trials, the consideration must be whether the applicant for a separate trial has shown that there is a real risk of positive injustice to the accused were he or she to be tried jointly [Patsalis & Spathis, supra, at 435]. Where an appellate court is asked to set aside a verdict on the ground that a miscarriage has occurred as a consequence of the accused being tried jointly with the co-accused, "the essential issue to be considered is whether any real injustice has been done to the applicant, as otherwise the proviso ... can be applied" [R v Assim [1996] 2 QB 249 at 259; Demirok, supra].
In R v Alexander and McKenzie, the accused were convicted of 10 counts of sexually interfering with a female student of the school at which the male accused Alexander was a music teacher; the female accused McKenzie was his girlfriend. At the time of the alleged offences, which involved a "threesome", the complainant was aged 14 and was one of a number of students who were taught music by Alexander. In addition to the complainant, the Crown called five of those students as witnesses (including two designated LSM and SMT). Their evidence, which comprised a substantial part of the trial, was of a "similar fact" nature, to demonstrate that Alexander employed a distinctive pattern of conduct, or modus operandi, as a prelude to seduction. It was admitted only against Alexander, and not against McKenzie. However, it included hearsay that suggested that McKenzie had a predilection to "threesomes sex".
Winneke P (with whom Charles and Vincent JJA agreed) said: [24] To my mind, this was one of those rare cases where - once the judge had decided to admit the evidence of similar facts to be given by the five girls other than the complainant - it should have been obvious that the trial of McKenzie would be prejudiced in a manner which could not be cured by judicial direction. That evidence, which was admitted only against Alexander, was - both as to volume and content - clearly going to "swamp" any case which McKenzie was going to make, and was so laden with hearsay and irrelevant material (to the case against McKenzie), suggesting that McKenzie had a predilection to "threesomes sex", that any case which she was intending to make would be irrevocably compromised.
The Court concluded that not only were there powerful reasons for concluding that the trial judge's discretion not to grant separate trials miscarried, but the course of the trial demonstrated that a miscarriage of justice did occur in the trial of McKenzie which was not and could not have been cured by direction. This was notwithstanding that the trial judge had told the jury that the evidence of five tendency witnesses, and the complainant, as to what Alexander was alleged to have said to them, particularly with regard to McKenzie, was not evidence against her, and gave a "separate consideration" direction, including that "the various conversations that Alexander had with the students about sexual matters was in the absence of McKenzie. That evidence cannot be led in the case of McKenzie": [17] [29] I agree with Mr Priest that, in the context of this trial, those directions, general as they were, were not capable of overcoming the prejudice which, irredeemably, flowed to McKenzie. The Crown case against her was that, on 20 December 1996, she had committed sexual offences against the complainant in the course of a "threesomes sexual orgy" with Alexander and the complainant, a girl with whom McKenzie had had no prior connection. That Crown case was given impermissible substance by the hearsay material, irrelevant and inadmissible against her, which was contained in the conversations between Alexander, on the one hand, and the complainant, LSM and SMT on the other; evidence to which I have previously referred, and which was calculated to show that McKenzie had a predilection to the very sort of sexual behaviour which the complainant described. It is difficult to resist the conclusion - notwithstanding the general directions (which came early in the judge's charge) to which I have referred in the preceding paragraph - that the jury would, or might, have discounted her alibi evidence as a consequence of a belief, engendered by the inadmissible evidence, that she had a predilection for the very type of sexual encounter which the Crown was alleging. That potential prejudice in the case of McKenzie was heightened by the judge's direction that her alibi evidence would have "general application". This was a comment made in the course of the judge's directions to the jury that, unless they could exclude McKenzie's alibi beyond reasonable doubt, they could not be satisfied that the events of 20 December occurred. No doubt his Honour's directions were given because Alexander's counsel relied heavily upon McKenzie's alibi evidence to absolve his client from those events, and no doubt his Honour was referring to the consequence that that evidence, given on oath during the trial, was available to be used generally. Nevertheless, unexplained, the direction impinged upon the "separate trial" direction and the "linking" of McKenzie's case with that of Alexander was capable of producing unfortunate consequences for McKenzie.
The prejudice was accentuated by the circumstance that the "similar fact evidence", inadmissible against McKenzie, constituted the bulk of the evidence at the trial. [18]
Recently, in [2019] NSWCCA 276, [19] this court has, on an interlocutory appeal, overturned a trial judge's refusal to sever an indictment; the essential reason was that in a joint trial, there would be evidence of admissions made by a co-accused which were not admissible against the applicant, but which would support evidence given by other witnesses who were to give evidence in the case against him. The Court was of the view that there was a significant risk that, despite careful directions, the inadmissible evidence, consistent as it was with the Crown case against the applicant, would be used to reason that the evidence of other Crown witnesses was reliable - in a way which could not sensibly be distinguished from the case against the applicant - so that there was a real risk of positive prejudice to the applicant, as there was significant potential for even a properly instructed jury in a joint trial to be influenced by evidence that they would be told that, as against the applicant, they must disregard.
Forming an "opinion that the matters ought to be heard and determined separately in the interests of justice", for the purpose of Criminal Procedure Act 1986 (NSW) s 29, involves considering the prejudice identified in the context of all of the evidence, and whether that prejudice can be - or has been - obviated by appropriate jury directions. [20] The question of potential unfairness in a joint trial from the receipt of evidence against a co-accused which is not admissible against another is highly fact dependent, and necessitates consideration of the significance of the various aspects of the evidence. [21] The cases to which reference has been made above indicate that relevant considerations include: 1. the prejudice said to arise to the applicant for a separate trial from the evidence that is admissible only against the co-accused; 2. the significance in the trial as whole of that evidence, including the extent to which it refers to and, directly or indirectly, potentially inculpates the applicant, and the relative strength of the case against the applicant for a separate trial, compared to that against the co‑accused; and 3. the directions given to address and mitigate any potential prejudice.

The prejudicial effect of the evidence that was admissible only against PV

The starting point is to consider what was the substance and effect of the evidence that was said to be admissible against PV but not against the appellant, and the prejudice supposed to arise from it.
This evidence fell into two categories. The first was the statement of agreed facts, admitted as Exhibit 40, which was expressly admitted only in the case against PV, and which relevantly established that PV: 1. had admittedly committed, and been convicted of, multiple counts of sexual assault of his daughter when she was aged 12; 2. had served a sentence of imprisonment for those offences; and 3. had a sexual interest in female children around the age of pubescence.
The second was the evidence elicited by PV's counsel, in cross-examination of the officer-in-charge and of LF, which was admitted without objection and without limitation, and relevantly established that: 1. PV was on the child protection register; and 2. the appellant knew that to be the case, and that it was because of sexual offences committed by PV against his daughter for which he had been imprisoned.
Although the submissions on behalf of the appellant sought to give emphasis to the inclusion in the statement of agreed facts of the fact that PV had been sentenced to imprisonment, it adds nothing to their "sting", which lies in the multiple previous acts of sexual intercourse and indecent assault of a young child, his own daughter, and his admitted sexual interest in pubescent girls. Nothing in the statement of agreed facts says anything adverse to, or even about, the appellant.
The fact that PV was on the child protection register adds nothing to the prejudicial effect, at least as against PV, of his admitted acts. Nor does the fact that PV was on the child protection register of itself say anything adverse to, or for that matter in any way about, the appellant. The only aspect of the evidence that is potentially directly adverse to the appellant is that he knew PV was on the register, by reason of acts of sexual misconduct involving his own daughter.
This evidence was said to be prejudicial to the appellant by reason that he was associated with and a friend of PV, and to be so damaging that any jury would "close their minds to the issue for determination". As I understand the argument, it was that the appellant's association with a convicted child sex offender would attract such opprobrium that it could not be overcome by direction. Any potential prejudice would lie in the risk that a jury might reason that because he had an association with a known child sex offender, he was guilty of the offences charged against him. Such reasoning would, of course, be not only legally impermissible, but rationally illogical.

The evidence in the case as a whole

In order to appreciate the role and significance of the tendency evidence relevant to PV in the context of the trial as a whole - and in particular any actual prejudice to the appellant - it is unfortunately necessary to provide a more detailed summary of the Crown case, which the jury must have substantially accepted.

Counts against the appellant alone (1, 3, 5 and 7)

Counts 1 and 3 referred to events on or about 23 March 2014, when KF was aged ten, at the Tumbi Umbi home of the appellant and his family.
Count 1 (digital penetration by the appellant of KF). At about 8pm, while KF's mother LF was visiting a friend across the road, the appellant stayed at home with the children. KF was in her bedroom playing on her Nintendo, when the appellant came into her bedroom, and told her to go to his bedroom. He took her, by the arm, to his bedroom, placed her on the bed and laid her on her side. He then lay beside her, pulled her pyjama pants down to her knees, and penetrated her vagina with his finger.
Count 3 (anal intercourse by the appellant with KF). On the same occasion, the appellant proceeded to insert his penis into KF's anus. Afterwards, KF went to the toilet and noticed a stinging sensation as she urinated. She then returned to her bedroom and went to bed. LF returned to the house shortly afterwards and found the front door locked. KF said she was too scared to tell her mother what had happened, because her mother had previously told her she was a liar. However on the weekend of 30 March 2014, KF told her young friend PH what the appellant had done, and PH told her mother. KF then told PH's mother that the appellant had taken her into his bedroom and "sexed her and played with her front part". On 30 March 2014, the police spoke to KF, and she told the police that the appellant "put his fingers in my wee and then put his penis in my bum". Her pyjamas were seized, and she was interviewed by police. The appellant was arrested and denied any sexual impropriety. Subsequent DNA analysis recovered the appellant's DNA from an area of seminal staining on the inside of the rear seat of her pyjamas.
Count 5 (digital penetration of KF's genitalia). Between 1 September 2013 and 31 March 2014, when KF was aged between nine and ten, the appellant came into her bedroom (at their previous home at Long Jetty). She was lying on her side, listening to the radio, and he lay beside her and put his finger inside her genitalia and rubbed her genitalia. She pulled his arm to try to get him to stop, but he continued until she said, "I will go to my mum".
Count 7 (oral intercourse with KF). Immediately following the act alleged in Count 5, the appellant left KF's room and went to the toilet. He called her to get him some toilet paper and told her to open the toilet door; she said "No". The appellant opened the door and pulled KF inside by her arm, saying "Come here or you will get a smack". The appellant was seated on the toilet, and KF could see his penis. The appellant forced his penis into KF's mouth, which she described as "he made me suck his doodle"; she said "stop", but the appellant replied, "No, you won't get a biscuit", and continued to force her to suck his penis until he ejaculated in her mouth.

Counts against AS alone (9, 10, 12, 17, 18, 19, 21, 22, 23 and 24)

Between 12 October and 25 November 2012, during the school holidays, KF (then aged 9) and JR (then aged 6) were staying the home of AS and his wife, the girls' aunt TS.
Count 9 (indecent assault by AS of KF). During this period, at a time when TS had gone to Sydney, AS told KF that she was to sleep in his bed with him while TS was away. KF went into the bedroom, got onto the bed and lay on her left side. She was wearing a love heart top, pink grey jeans and socks. AS lay behind her, also on his left side. He pulled her pants down, pulled out his penis and rubbed his hands on her bottom. KF felt his hands on her vagina and then felt something wet all over her back and bottom, which she said was like milk. He rubbed it into her back and bottom and they were wet; she said it was "yuck" and "gross". AS had previously told her that he drinks milk and the milk comes out of his doodle. KF described AS's doodle as having a hole in the middle of the doodle where the milk came out. KF's cousin AS (jnr) came to the door, and AS stopped and went to get a drink; he came back to the bed and told her to "Shush and not tell anyone". KF was scared.
Count 10 (penile/vaginal intercourse by AS with JR). During the same period, JR was lying on the bed in AS's bedroom wearing pink and yellow pyjamas with butterflies on them. She went outside to play and AS called her back inside. She went to him in his bedroom and lay down, and AS lay behind her. He pulled her pyjama pants and underpants down, pulled his own pants down, and then inserted his penis into her vagina. She said his body went back and forth while she kept her body still, and that she felt disgusted when AS's "rude parts" started touching her "rude part". JR could feel AS's "rude part" where she "does a weewee". AS ejaculated over her body and bottom; JR said that "milk came out of his rude part" onto her "rude part where my poo comes out of and all over my bum"; it was "all over [her] bottom, and it felt like worms". JR then had a shower and washed it all away.
KF and JR stayed at the home of AS and TS on another occasion, between 14 June 2012 and 13 June 2013. KF was nine years old and JR was six.
Count 12 (indecent assault by AS of KF). Again at a time when TS was in Sydney - on this occasion with her younger son MS - AS was in the bath and asked KF to get him a towel, and she did so. AS told her to get undressed, and she complied. He then pulled her arm and had her come into the bath with him. She could see his penis and bottom. He told her to get on top of him, and she did so, with her back on top of his body. AS then put his arms around her and moved up and down against her. She struggled and tried to get off, and eventually succeeded. She got out of the bath, dressed and left the bathroom.
Counts 17, 18, 19 and 21 each refer to a single episode concerning KF between her ninth and tenth birthdays, that is to say between 14 June 2012 and 13 June 2013.
Count 17 (indecent assault by AS of KF) and Count 18 (exposing KF to indecent material, with the intention of making it easier to procure KF for unlawful sexual activity). KF and her cousins - AS's sons AS (jnr) and JS - were in the lounge room of AS's house, when AS played a pornographic movie on the television. KF described it as "really gross" and depicting "a girl and boy doing sex", with the girl on top and the boy underneath. As the actors had intercourse, AS simulated intercourse with KF on the lounge room floor, lying on top of her and moving his body up and down against her. Both she and AS were naked.
Count 19 (oral intercourse by AS with KF). Following the activities referred to in Counts 17 and 18, AS told his son AS (jnr) to do the same thing to KF. AS (jnr) lay on top of KF and moved his body up and down against her. AS took hold of AS (jnr)'s penis and placed it inside KF's mouth.
Count 21 (inciting KF to commit an act of indecency on AS). At some point during this episode, AS told KF to suck his penis; she said "No". The activity stopped when the grandparents knocked on the door.
Counts 22 and 23 refer to a day sometime between 9 August 2012 and 9 August 2013, when JR was six years old and was living temporarily at AS's house.
Count 22 (oral intercourse by AS with JR). JR was in AS's bedroom with him, and he shut all the doors. Having pushed her down under the covers, he placed his penis into her mouth. JR said she did not want to do this, but he pushed her head onto his penis with his hand, moving his penis back and forth until he ejaculated in her mouth. JR described having white stuff on her tongue which tasted like yucky milk. JR vomited in AS's bed, and AS fell asleep.
Count 23 (oral intercourse by AS with JR). Later the same day, JR was about to have a shower and needed to use the toilet first. She was naked and sitting on the toilet. AS entered the room, pulled his pants down, took out his penis and placed it in her mouth. He pushed her head up and down until he ejaculated on her forehead. TS was walking past the toilet and said, "AS, get out of the bathroom while she is having privacy going to the toilet doing wee-wee", and AS then left the bathroom.
Count 24 (act of indecency by AS towards JR). On another occasion between 9 August 2012 (JR's sixth birthday) and 8 August 2013, again at a time when she was staying at AS's house, JR and KF were in the boys' bedroom, and all the other children other than JR were asleep. AS entered the bedroom and put on a movie; he said, "I've got this disgusting movie, Girl, Girl, Girl". JR said, "'I'm going to go back to sleep and I don't want to watch it, yuck". AS tried to force her eyes open, so that she would watch the movie. JR saw part of the movie, which depicted a male having sex with a female child, and AS masturbated with a blanket.

Counts against the appellant and AS (25, 26, 27, 29 and 30)

Counts 25, 26, 27, 29 and 30 refer to events over a three-day period occurring between 1 January 2012 and 1 January 2013 at AS's home at Budgewoi, at about the time of JR's sixth birthday party, when KF was aged eight or nine. The Crown case was that the appellant and AS sexually assaulted KF (Counts 25, 27, 29 and 30) and JR (Count 26) in a joint criminal enterprise to sexually assault the girls, and also that each offence was committed by one in the company of the other (s 66A(2)). The statutory alternative - the same offence without the aggravating element "in company" - was also left to the jury, and the jury was instructed that if the element of "in company" was not established, but one accused had intercourse with KF pursuant to a common purpose of both, they were both responsible. [22]
Each of KF and JR gave accounts of these events, and said that various named other children were present on the day before, and the day of, the party, each of whom were also sexually assaulted. The police investigation did not identify the other girls said to have been present.
The defence case was that each child's evidence was false, unbelievable and contaminated. The jury returned not guilty verdicts in relation to both AS and the appellant on Count 28, which was the only count which alleged sexual intercourse by the appellant with his biological daughter JR; only KF gave evidence of the act alleged, and JR did not. The jury returned a verdict of guilty of the aggravated offence "in company" only on Count 27, and of guilty of the statutory alternative under s 66A(1) on Counts 25, 26, 29 and 30 - presumably, as her Honour said in her remarks on sentence, on the basis of joint criminal enterprise. [23]
AS and the appellant had some discussion about what they intended to do, in the presence of JR.
Count 25 (digital penetration by the appellant of KF's vagina). The day before JR's party, both KF and JR were at AS's home, together with a number of other young girls. The girls were in the lounge room, and were instructed to sit down in a line in front of a fish tank and watch and wait until it was their tum. All the girls had their hands tied behind their backs and could not leave. Both the appellant and AS engaged in sexual activity with the other girls, taking it in turns with them. AS set a timer on his mobile phone at two-minute intervals, and when the timer went off it was time for the next girl. Some girls asked the others for help, and were smacked. AS and the appellant told the girls that if they misbehaved they would be slapped with hot water. It became KF's turn, with the appellant. He positioned himself on top of her, kissed her on the lips, squeezed her chest and digitally penetrated her vagina. He then had her switch positions, so that KF was on top of the appellant. KF said that she was made to watch a video while he was "doing sex" to her. She told him to stop, but the appellant continued.
Count 26 (anal intercourse by AS of JR). During the same episode, AS put a "spiky thing" on his penis (of which JR drew a copy which became an exhibit), and then inserted his penis into her anus; she said that it hurt when he did that, that the "spiky thing" scratched her, that AS's body was shaking and moving back and forth, and that it stopped when the timer on AS's phone went off after two minutes. When she later went to the toilet, she noticed blood in her stool. During this, the appellant was in the lounge room watching a movie, and when each child finished they would then go and join him there.
Count 27 (penile/anal penetration by AS of KF, in company with the appellant). The next day was the day of the birthday party, at which KF's mother LF and AS's wife TS, and various girlfriends of KF and JR, were in attendance. The adults other than the appellant and AS had gone to the beach, and AS made a telephone call to check that they were at the beach. AS and the appellant then called the children into AS's bedroom. They were lined up, with their arms tied behind their backs with belts belonging to AS. The appellant performed sexual acts with one of the other girls present, and AS with another. AS then called KF into the room and asked her if she wanted a lolly, but told her that she had to do something first. KF said no, and he pulled her by the arm into the room and onto the bed. AS was in the middle of the bed and placed her to one side, and there was another young child also on the bed. He kissed KF on her lips and then turned over and did the same to the other young child. He then got on top of KF, who was on her stomach, and anally penetrated her with his penis. Her evidence was that "AS put his doodle in my bum hole". The appellant was present in the room, performing sexual acts with the other girl, at the same time. KF could not see what was happening, but heard the other girl call out for help. The sexual acts stopped after two minutes, and KF and the other girl were given lollies and hot chocolate. The girls then went to play games in the house. KF said she that she tried to tell her mother and TS about these events after the party, but they would not listen and both said that they (the appellant and AS) would not do it.
Count 29 (penile/vaginal penetration by AS of KF) and Count 30 (digital penetration by AS of KF's anus). The day after the party, KF was at AS's house, with the appellant. She was in AS boys' bedroom, watching a movie with JR. AS dragged her from the bedroom to the lounge room, pulling her arms and legs. He took her clothes off and put her on one of the lounges. He lay on top of her, kissed her on the lips, penetrated her vagina with his penis and then digitally penetrated her anus. According to KF, while this was happening, the appellant was in the room doing similar things to JR on the other lounge (Count 28); the jury returned a not guilty verdict in respect of this allegation. According to KF, her aunt TS returned and upon opening the front door saw what was happening to the girls and said, "What in the world are you doing?"; the appellant and AS did not respond; TS told the girls to go and play somewhere else and not to go near AS and the appellant again.

Counts against the appellant and PV (31 and 34)

Counts 31 and 33 (and their alternatives 32 and 34) related to one occasion, involving the complainant KF, on which it was said that the appellant and PV acted in company.
Count 31 (penile/vaginal intercourse by the appellant of KF, in the company of PV), Count 33 (penile/anal intercourse by PV of KF in the company of the appellant - of which both were found not guilty) and its alternative Count 34 (indecent assault by PV of KF - of which both were found guilty, presumably on the basis of joint criminal enterprise). On an evening after 14 October 2013, when KF was about ten years of age and she, the appellant and JR were living at Tumbi Umbi and PV was staying over, her mother LF had left the house to visit a friend and she was in her bedroom alone on the top bunk of her bed when the appellant entered her room naked, woke her, picked her up and carried her to his bedroom. She said that she did not want to go with him and kicked him while he was carrying her. In the appellant's bedroom, PV was lying under the covers in the appellant's bed, and the appellant with KF got into the bed and under the covers, KF lying in the middle, with the appellant and PV on either side of her. The appellant removed KF's pants to just below her knees, and penetrated her vagina with his penis, while PV penetrated her anus with his penis.

Count against PV alone (35)

Count 35 (penile/vaginal intercourse by PV with JR). On another occasion, in September 2013, when JR was aged seven, PV spent a night at the appellant's Long Jetty residence. The next morning her parents, brothers and sister went to the shops, leaving JR behind with PV, who took her into her sister's bedroom, placed her on a mattress on the floor, took her clothes off, and penetrated her vagina with his penis, stopping when the family returned home, and the police knocked on the door.

The tendency evidence of KF and JR

The evidence of KF and JR, which was pre-recorded, was admitted not only as evidence on each of the counts in respect of which each complainant gave direct evidence, but also as tendency evidence, against each of the accused. As against the appellant and AS, it was relied on to establish that each of them had the tendency: 1. to have a particular state of mind - namely, to have a sexual interest in female children under the age of 16; 2. to act in a particular way - namely, to engage in sexual activities with female children under the age of 16; 3. to use his position of authority over children in his family or friendship circle to engage in sexual activities with them; 4. to engage in group sexual activities with female children under the age of 16, including in company with another adult male; and 5. to attempt to ensure that the children with whom he engages in sexual activities do not disclose what he and those adult males with whom he engaged in group sexual activities with those female children under the age of 16 had done.
As will be seen, the trial judge directed the jury that the Crown case depended upon acceptance of the evidence of KF and JR, while the appellant's contention was that their evidence was unbelievable and should not be accepted.

Conclusion

The above summary shows that: 1. The case against the appellant was not a weak one, and it could not be said that the evidence against the appellant was significantly weaker than and different to that admissible against PV. On Counts 31 to 34, the direct evidence against each was the same. While the tendency evidence concerning JV added to the case against PV and was not admissible against the appellant, there was tendency evidence concerning KF and JR which was admissible against the appellant. In respect of Counts 1 to 7, which involved the appellant alone and not PV, KF's evidence was supported by early complaints, by DNA evidence (as to Count 3), and by eyewitness testimony of JR (as to Count 7). 2. The case against PV formed a relatively small part of the case as a whole. Of the counts in the indictment, 17 involved the appellant, and 23 involved AS; only 5, covering two occasions, involved PV. 3. The evidence that was admissible against PV alone played a very small part in the trial as a whole. The evidence of KF and JR, whose credibility and reliability was the central issue in the trial, was plainly the dominant feature of the case, and the allegations against PV were not prominent in their accounts. In the context of the evidence that was admissible against the appellant, which included disturbing and distressing graphic descriptions of group sexual activities involving very young children, the matters described in the statement of agreed facts were hardly so shocking or confronting as to overwhelm consideration of the allegations in the trial. 4. As has already been observed, the evidence that was admissible against PV alone did not refer to or directly inculpate the appellant. In this respect, the position is very different from that in R v Alexander, where the tendency evidence admitted against Alexander, which was not admissible against McKenzie, included extensive references to McKenzie and implicated her in conduct of the kind that was charged against her.
In that context, while the evidence against PV included some material that was not admissible against the appellant (being the tendency evidence concerning JV), it does not merit the description of being highly prejudicial to the appellant. Any risk of prejudice to the appellant lay in the possibility that the jury might impermissibly - and illogically - reason that the appellant must have committed the offences with which he was charged, because he associated with a person who had committed and been convicted and sentenced to imprisonment for sexual offences against his own daughter. Thus, any risk of prejudice arose from the possibility that the jury would engage in reasoning that was not only impermissible, but illogical, of guilt by association. It should not readily be assumed that a jury would reason - or has reasoned - illogically in that way. The fact that the jury did not convict on Count 33, but only on the lesser alternative Count 34, suggests that they were not overborne by prejudice against the appellant or PV.

The jury directions

It is next relevant to consider the directions that were given to the jury by the trial judge. While it is important to bear in mind that no ground of appeal challenged any direction (or omission) on the part of the trial judge, the directions remain relevant in considering whether a miscarriage of justice arose from the joint trial.
First, at the point in the trial when the statement of agreed facts was tendered - on 4 August 2017, which was day 21 of a 26 day trial - her Honour told the jury that it was admissible only against PV and played no part in the Crown case against the appellant or AS. [24] Her Honour then explained the limited use that could be made of that evidence, stating that the tendency asserted by the Crown was "to have a ... sexual interest in female children under the age of 16 years and a tendency to act on that sexual interest by engaging in sexual activities with them in the family or domestic environment". [25] Her Honour then again emphasised that the agreed facts were admissible only against PV, and played no part in the case against the appellant or AS. [26]
Next, at the outset of the summing up, which commenced on the afternoon of Friday 11 August 2017, her Honour directed the jury that they were required to return separate verdicts for each accused, including where they were jointly charged, and that the case against each accused must be considered separately and in light only of the evidence that applied to that accused: [27] You will be required to return a separate verdict in respect of each individual accused. In those counts where accused are jointly charged, you should not in your deliberations try to determine whether the accused is guilty without considering them as individuals and giving each separate consideration. Simply because of the Crown alleges that they are each guilty, it does not follow that you approach your deliberations in the same way. As I said at the outset of the trial it is because of the way the Crown presents its case against each accused men that the trial of each of these three men has been heard jointly, just as each count alleged against each accused has been heard jointly. You must be careful not to allow the convenience of that occurring to override justice. The accused and the prosecution are entitled to have a case against each accused considered separately. You must consider the case against each accused separately and in light only of the evidence that applies to that accused. This is because some of the evidence you have heard in this case is only relevant to the case against one accused or another. If a particular piece of evidence is only relevant to one accused, you may only use it when deciding whether or not that accused is guilty. You must not consider it in relation to either of the other accused. Throughout this trial this has meant that I have asked the Crown Prosecutor to state to which accused evidence related to and I will remind you of that as we go through this process. So you must consider each charge and each case brought against each accused man separately. There is no reason why your verdict in respect of one accused should be the same as your verdict in relation to the other accused. You must ask yourselves in relation to each accused whether the evidence relating to that accused on each count alleged against him has satisfied you beyond reasonable doubt that he is guilty of the offence he has been charged with. If the answer is yes, then you should find him guilty. If the answer is no, then you must find him not guilty. In respect of any one count, and particularly so in relation to the cases the Crown makes against [the appellant] and [AS], you must be very careful to ensure you do not reason towards the accused's guilt in relation to a given count by any process that involves the thought or reasoning that he must be guilty because the police have charged him with so many offences
When the summing up resumed on Monday, 14 August 2017, her Honour proceeded to review each of the counts in the indictment, their elements, and the evidence directly relevant to each of them (that is to say, not the tendency evidence). This process concluded on the morning of 15 August 2017. Her Honour then drew attention to inconsistencies in the Crown case which had been raised by defence counsel, and observed that "mostly in relation to each count the Crown case as to the acts themselves is solely reliant on the evidence of the complainant against whom the alleged act, the subject of the count is perpetrated". Her Honour pointed out that the Crown case was "wholly reliant" on the evidence of KF and JR, [28] that it was "fundamentally important" that they be mindful that the Crown bore the onus of establishing an accused's guilt on each count; that mostly that could only be done on the evidence of each of KF and JR, on whose word they would be required to be satisfied to the exacting standards of proof beyond reasonable doubt; and "[t]hat being so, unless you are satisfied beyond reasonable doubt that each complainant are honest and accurate witnesses in the accounts that each has given you cannot find the accused guilty of the charge which is under your consideration". The jury was further directed that before they could convict any of the accused on any of the charges, they should examine the evidence of the complainants carefully, in order to satisfy themselves that they could safely act upon that evidence to the highest standard required in a criminal trial, [29] noting that where the Crown case relied mostly upon the evidence of a single witness who was giving evidence about events said to have occurred a number of years previously, a jury must always approach that evidence with particular caution, because of the onus and standard of proof placed on the Crown. [30]
Her Honour then dealt with evidence of complaint, before turning to the tendency evidence, which was introduced as follows (emphasis added): [31] Whilst both KF and JR are complainants in relation to each accused man, in the case the Crown makes against [PV] the Crown has other material relevant to this aspect and that is the agreed facts which have been tendered in the case against him and are exhibit 30 [sc 40]. As I instructed you at the time those agreed facts were tendered and that material plays no role in the Crown case against [the appellant] or [AS] and you must have no regard to it whatsoever in relation to this direction in relation to them. So as to safeguard against that, I am going to deal firstly with [the appellant] and [AS] in relation to this direction on tendency. I am going to give you a direction which has application to both [the appellant] and [AS]. You will, of course, understand that whilst I am giving it to you at the same time, the direction I give you must be considered separately in relation to each man.
Thus her Honour clearly explained that she was directing the jury in relation to the tendency evidence relevant to the appellant and AS first, and would deal with the tendency evidence relevant to PV separately and subsequently, in order to ensure that that evidence was kept separate from the cases against the appellant and AS. In relation to the appellant and AS, her Honour then continued: [32] The Crown submits in relation to [the appellant] and also in relation to [AS] that you would accept the evidence given by one complainant whether it be KF or JR regarding how the accused, [AS] and [the appellant] acted towards them both in relation to each particular occasion alleged in a count on the indictment and in relation to the background in which that count occurred. And the Crown submits that you would accept that the evidence given by KF or JR, demonstrates a pattern of behaviour on the part of the accused you are considering, be it [the appellant] or [AS] and that pattern of behaviour which the Crown says you will find reveals that each had a tendency to act in a particular way and with a particular state of mind and you could use that evidence to support what the other complainant alleges as to how the same accused, of course, acted in the particular way towards her. So, that is, if you accept what one complainant says, you can use that, the Crown contends, as support of the other complainant. This is subject to some very special directions that I am going to give you. In relation to each man, the alleged tendency is the same but notwithstanding, deal with them separately as I have explained to you. The particular tendency the Crown alleges is a tendency on behalf of [the appellant] and [AS] is that each is a person who had a sexual interest in female children under 16 years of age and a tendency to act in a particular way, namely to engage in sexual activities with female children under the age of 16·and to use his position of authority over the children in his family or friendship circle to engage in sexual activities with them and to engage in group sexual activities with female children under the age of 16 in company with another adult male.
Her Honour proceeded: [33] Tendency reasoning must not be used in any other way. Importantly, understand it would be completely wrong to allow tendency reasoning to support a process of reasoning that because the accused committed one or more than one offence or engaged in misconduct towards one complainant that he is generally a bad person and that he must have committed any one or more of the offences alleged on the indictment by the other complainant. Or that he should be punished for what he did to the other complainant by one complainant by simply finding him guilty of one or more of the offences alleged by the other complainant. That is not the purpose of the tendency reasoning at all and to reason in this way would amount to an improper and unfair use of the evidence.
Her Honour then took a 15-minute adjournment before dealing with the tendency evidence relevant to PV, [34] as follows: [35] I told you, in certain circumstances, the Crown may be allowed to add to the evidence it calls, to prove guilt in relation to each of those counts, separately, and to seek to have you, the jury, utilise a form of reasoning that the law calls tendency reasoning, tendency evidence, and the Crown submits in this instance, that you would, as it did in the previous, that you would accept the evidence given by one complainant, whether it be KF or JR, regarding how the accused, [PV], acted towards her, in respect of the count on the indictment, and, together with the material, the subject of the agreed facts, the Crown submits, demonstrates a pattern of behaviour on the part of [PV] which the Crown asserts, reveals he had a tendency to act in a particular way and with a particular state of mind, and the Crown says, you could use that evidence to support what the other complainant alleges the accused did to her. In relation to [PV], the particular tendency, the Crown alleges, is a tendency on his behalf, rather that he was a person who had a tendency to have a particular state of mind, namely, to have a sexual interest in female children under the age of 16 years, and secondly, a tendency to act in a particular way, namely, to engage in sexual activities with female children under the age of 16; so firstly, the state of mind, and a sexual interest in female children under 16. Secondly, a tendency to act in a particular way, namely, to engage in activities with female children under the age of 16. And third, to use his position of authority over children in his family or friendship circle, to engage in sexual activities with him, and fourthly, a tendency to ensure that the children with whom he was engaged in sexual actual activities, do not disclose what he has done.
The tendency asserted by the Crown against PV was thus fully and accurately stated, correctly omitting any reference to engaging in group sexual activities with female children under the age of 16 in company with another adult male, which though it formed part of the tendency asserted against the appellant and AS, was not part of that asserted against PV. Her Honour then summarised the tendency evidence concerning JV: [36] Other than the two complainants, KF and JR, the evidence relied upon to prove these asserted tendencies are those facts which are set out in the agreed facts, which is exhibit 40 in the trial. Namely, the fact of his convictions of sexual intercourse and indecent assault that he committed upon his daughter. It is an agreed fact that [PV] pleaded guilty to four counts of aggravated sexual intercourse with a child above the age of ten years and under the age of 16 years, she being 12 years at the time. Counts 1 to 3 were acts of penile vaginal intercourse. Count 4 was an act of oral intercourse. In relation to the matters the accused pleaded guilty to, in addition to those matters dealt with on what is called a Form 1, they were offences of aggravated indecent assault between the dates of 1 January 1992 and 21 December 1998, at various places in New South Wales. The matters on the Form 1, the facts of those matters included, rubbing his daughter's genitals with his erect penis, being naked and rubbing his penis against her genitals until ejaculation; asking her to masturbate him, lying on top of her, and pressing his penis against her abdomen. [PV] was convicted after he pleaded guilty and he has been sentenced in relation to those charges and offences. He was, as you know, that the evidence was before you in the trial, placed on the Child Protection Register. As you know, he was on that register at the time the alleged offences, the subject of counts 31, the alternative 32, 33 and the alternative of 34, and also count 35.
Her Honour concluded her directions about tendency evidence as follows: [37] Before you can make use of that material, it is important that you understand what must be proved by the Crown beyond reasonable doubt before you would be permitted to reason that proof of the offences alleged on the indictment by one complainant, and/or, the agreed facts material, makes it more likely that the accused committed the offences alleged in the indictment, by the other complainant. That is, before you can engage in tendency reasoning. Now the submission advanced by the Crown regarding tendency reasoning can only be adopted by you if you make two findings beyond reasonable doubt. The first finding is that you must be satisfied beyond reasonable doubt that the conduct relied upon by the Crown to prove the existence of the particular tendencies that it asserts did in fact occur. In relation to the material the subject of exhibit 40, you understand that the facts are agreed, and those facts did in fact occur. Insofar as the complainants in this trial are concerned, that is [KF] and [JR], that requires the Crown to satisfy you beyond reasonable doubt that the evidence given by one complainant in relation to the offences, be it either [KF] or [JR], the offence that the Crown alleges on the indictment was honest evidence and was evidence that was accurate in vital respects. In making this first finding you are entitled to have regard to all of the evidence that relates to that complainant, but you must not, at this first stage, have regard to anything the other complainant alleges against the accused [PV]. That is because it is only upon proof of the evidence of at least one complainant beyond reasonable doubt that the foundation is laid for the potential application of tendency reasoning in relation to the two complainants. You will recall of course that there is also the additional agreed facts which is proven, they are facts that are agreed, and therefore you would be satisfied that those agreed facts did in fact happen. However, as I have told you, in this instance there are proven facts aside from those assertions which are presently contained in the counts relating to each complainant, but there are proven facts, they are in the agreed facts document, being those offences committed by the accused, [PV] against his daughter. Now of course in relation to the complainants [KF] and [JR] if the evidence given by one complainant has not been proven beyond reasonable doubt then you must put aside any suggestion that that complainant, be it [JR] or [KF], might be capable of demonstrating any tendency on the part of the accused, and you must proceed to decide whether the Crown has proved the allegations made by the complainant without having regard to the method of tendency reasoning intra- complainant. You would still be left with the evidence that is exhibit 40, the agreed facts. If however you are satisfied that the evidence given by one complainant in relation to an offence that is the basis of a count on the indictment, has been proven beyond reasonable doubt and, as I have said, in any event, given the agreed facts, then the gateway would be opened that would permit you to proceed to a second finding, which is this: you must ask yourselves whether the proven evidence given by that one complainant and/or the agreed facts, for that is proven evidence, demonstrates, or discloses, beyond reasonable doubt that the accused [PV] did have a tendency to act in a particular way, and with a particular state of mind asserted by the Crown. Now if you are not able to reach this conclusion beyond reasonable doubt then once again you must put aside any suggestion that the accused has the tendency asserted by the Crown and move to decide whether the Crown has proved the allegations made by the other complainant, the complainant separately, without having regard to this method of reasoning called tendency reasoning. Keep in mind that at all times even if you are satisfied beyond reasonable doubt from the evidence of one complainant and/or the agreed facts, does demonstrate, or disclose, that the accused did have the particular tendency asserted by the Crown, that fact may lend support - not must lend support - to the evidence of the other complainant. Understand also that at its highest, tendency evidence can only ever lend support to what a complainant alleges, it can never be a replacement for a complainant should you all form the view that a complainant has been deliberately dishonest, or unreliable, or incredible, in part of her evidence. You should also bear in mind that tendency reasoning is just one part of the way the Crown seeks to prove its case against the accused [PV]. Only give it such weight you think it deserves in the context of the evidence before you. The tendency reasoning must not be used in any other way. Importantly understand it would be completely wrong to use tendency reasoning to support a process of reasoning that because the accused committed one, or more than one offence, or engaged in misconduct towards one complainant, or in the past against his daughter, that he is generally a bad man and he must have committed any one of the offences alleged on the indictment by another complainant, or that he should be punished for what he did to one complainant, or indeed his daughter, by simply finding him guilty of one or more of the offences alleged by the other complainant, that is not the purpose of tendency reasoning at all, and to reason in this way would amount to an improper and completely unfair use of the evidence.
After the jury had retired, it requested further clarification about tendency and coincidence reasoning, and her Honour repeated the direction from the summing up in full, again emphasising that the jury must have no regard whatsoever to the agreed facts when considering the cases against the appellant and AS; again giving separate directions first concerning the appellant and AS, and secondly concerning PV; and again accurately stating the (different) details of the tendencies asserted (respectively as to the appellant and AS, and PV). [38]
From those directions, the jury could not have failed to understand: 1. that the case against each accused must be considered separately and in light only of the evidence that applied to that accused; 2. that the Crown case was "wholly reliant" on the evidence of KF and JR, [39] and that before they could convict any of the accused on any of the charges they should examine the evidence of the complainants carefully, in order to satisfy themselves that they could safely act upon that evidence to the highest standard required in a criminal trial of beyond reasonable doubt; 3. that the agreed facts were admissible only against PV and played no part in the case against the appellant or AS, and that the jury must have no regard whatsoever to them when considering the cases against the appellant and AS.
Trials proceed on the assumption that juries will act in accordance with the directions they are given. [40] This assumption is fortified by the empirical research to which Traill DCJ referred in declining to sever the indictment and which has been set out above.
The appellant complained of the absence of any direction (while conceding that none had been sought) to the effect that the agreed facts could not be used to reason that PV had a tendency to engage in group sexual activities with female children under 16 in company with another adult male - a tendency which was not relied on in relation to PV, though it was in relation to the appellant and AS. The appellant argued that there was a risk that despite these directions the jury might "conflate the tendency evidence as between the cases - the allegation of group activity being in effect a disguised reference to common purpose as between the participants alleged to have that tendency", and that where separate tendencies were advanced against different co-accused, there is "an inherent risk of a jury misusing that tendency evidence and the reasoning that underpins it, particularly in these sorts of trials, hence the necessity for a warning to be given", and that while her Honour gave a direction that tendency reasoning must not be used to support a process of reasoning that because an accused committed one or more than one offence or engaged in misconduct towards one complainant that he is generally a bad person and that he must have committed any one or more of the offences alleged on the indictment by the other complainant, [41] no equivalent direction was given (nor sought) that the process of reasoning was not permitted where the allegation was one of a tendency to participate in a group activity.
As has been seen, her Honour accurately stated the tendency alleged against each accused, which in the case of PV (in contradistinction to the cases against the appellant and AS) involved no reference to him acting in company with another male. Thus the more likely course of reasoning would be that while a tendency to engage in group sexual activities with female children under the age of 16 in company with another adult male was alleged against the appellant and AS, it was not against PV. Moreover, the acts described in the agreed facts involved only PV and JV, and did not involve PV acting in company with another male, and would not have invited reasoning that PV had a tendency to do so. In those circumstances, the risk that the jury would have reasoned that PV had a tendency to engage in group sexual activities with female children under 16 in company with another adult male was not such as to call for a specific direction, at least in the absence of one being requested. Further, not only was no such direction sought at the trial, as the appellant concedes, so that this submission would require leave under Rule 4 of the Criminal Appeal Rules (NSW), but also it is not apparent how the absence of any such direction would be to the prejudice of the appellant (against whom such a tendency was asserted), as distinct from PV (against whom it was not).
The appellant also complained that, in determining to admit the evidence concerning JV as tendency evidence against PV, Traill DCJ did not consider the age of the offences committed by PV against his daughter (which had been committed between 1992 and 1998 and in respect of which he was sentenced in late 2000, many years before the events the subject of the present trial). It was submitted that, consistently with what the High Court had said in McPhillamy v The Queen, [42] in relation to the passage of time in relation to acting on a sexual interest, the absence of evidence that PV had acted on his sexual interest in young girls between 1998 and the events charged (which occurred between 2013 and 2014) rendered the inference that he had the alleged tendency a weak one. However, whether the tendency evidence concerning JV was properly admitted against PV does not arise in this appeal. That evidence said nothing about the appellant, and did not of itself operate to the prejudice of the appellant. In any event, her Honour referred to the submissions made on behalf of PV as to the differences between the circumstances of the offences against JV and those of the matters alleged in Counts 31 to 35. [43] Moreover, there are distinctions between McPhillamy and the present case; in particular, PV's admission to having a sexual interest in pubescent girls decades before his offences against JV does not preclude the inference of an enduring tendency in the specific terms asserted against PV.
No specific direction was given about the use that could or could not be made of the evidence, elicited in cross-examination by PV's counsel, to the effect that the appellant was aware that PV was on the child protection register as a result of sexual offences committed against his own daughter. No such direction was sought at the trial. As has been observed, the evidence was elicited without objection, and no limitation was sought or imposed on its use. In addresses, it was mentioned only by PV's counsel. In the summing-up, it was referred to only in connection with the tendency direction relevant to PV, in the context that her Honour had made clear that what was being addressed at that point concerned only the case against PV. All this - together with the absence of objection to the evidence when it was adduced - is indicative that it was not considered at the time of the trial to have any significance in relation to the other accused, including the appellant. Further, any potential adverse impact was moderated by the further evidence elicited by PV's counsel in cross-examination of the appellant's de facto partner LF that she and the appellant had known PV for more than eight years at the time of the trial in 2017; that when they first met PV he told them that he had been in gaol for things of a sexual nature done to his daughter; and that the appellant had responded that he believed that everyone deserved a second chance; but that she did not thereafter leave the children alone with PV. [44]

Conclusion

The essential issue is whether there has been any real injustice done to the appellant as a consequence of his having been tried jointly with PV. There is a risk of unfair prejudice if evidence which was admissible against PV but not against the appellant created unacceptable collateral prejudice (by establishing bad character or other prejudicial connotations); or if there is a real possibility that it impermissibly bolstered a relatively weak case against the appellant against whom the same evidence was inadmissible, and in either case the risk of prejudice was not cured by judicial direction.
The evidence that was admissible against PV but not against the appellant established that PV had admittedly committed, and been convicted of, multiple counts of sexual assault of his daughter when she was aged 12; that he had a sexual interest in female children around the age of pubescence; and that he was on the child protection register. Further evidence elicited by PV's counsel without objection established that the appellant knew PV was on the register having been convicted of sexual offences against his own daughter.
The case was not one of which it could be said that the evidence against the appellant was significantly weaker than and different to that admissible against PV. The case against PV formed a relatively small part of the case as a whole. The evidence that was admissible against PV alone played a very small part in the trial as a whole. It did not include any reference to the appellant. To a significant degree it was overshadowed by the confronting evidence that was admissible against the appellant. Any risk of prejudice arose from the possibility that the jury would engage in reasoning that was not only impermissible, but illogical, of guilt by association.
While no specific direction was given concerning the evidence that tended to show that the appellant knew that PV was a convicted child sex offender, none was sought, and this - together with the absence of objection to the evidence when it was adduced - is indicative that it was not considered to be of significance in the trial. Any risk of prejudice in this respect was mitigated by the judge's directions that the Crown case was "wholly reliant" on the evidence of KF and JR, and that before the jury could convict they should examine the evidence of the complainants carefully, in order to satisfy themselves that they could safely act upon that evidence to the highest standard required in a criminal trial of beyond reasonable doubt; that the case against each accused must be considered separately and in light only of the evidence that applied to that accused; that the agreed facts were admissible only against PV and played no part in the case against the appellant or AS, and that the jury must have no regard whatsoever to them when considering the cases against the appellant and AS. That the jury did not convict on Count 33, but only on the lesser alternative Count 34, suggests that they were not overborne by prejudice against the appellant or PV.
For those reasons, I do not consider that any unacceptable risk of prejudice to the appellant arose from the reception into evidence against PV in the joint trial of the statement of agreed facts, and I am not persuaded that there has been any real injustice done to the appellant as a consequence of his having been tried jointly with PV.
I therefore propose that the appeal be dismissed.
CAVANAGH J: I agree with Brereton JA.

Endnotes

As will appear below, six of those counts were in the alternative to others.
Cf Decision restricted [2019] NSWCCA 276.
T811-812.
T571-572.
The notice of motion filed by the appellant on 21 July 2016 had also sought severance from AS for the separate counts, and for the joint counts. This was amended by his counsel at hearing to seek severance only from PV, subject to tendency and coincidence evidence being held admissible.
R v Middis (Supreme Court of NSW, Hunt J, 27 March 1991, unreported); R v Darby (1982) 148 CLR 668 at 677-678; [1982] HCA 32; Webb v The Queen; Hay v The Queen (1994) 181 CLR 41 at 88-89; [1994] HCA 30; R v Patsalis & Spathis (1999) 107 A Crim R 432; [1999] NSWSC 649 at [15]-[20]; R v Alexander and McKenzie (2002) 6 VR 53; [2002] VSCA 183 at [31].
Webb v The Queen; Hay v The Queen (1994) 181 CLR 41 at 88-89; [1994] HCA 30; Decision restricted [2019] NSWCCA 276 at [60].
Webb v The Queen; Hay v The Queen (1994) 181 CLR 41 at 89; [1994] HCA 30; Decision restricted [2019] NSWCCA 276 at [61].
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13], [31]; Decision restricted [2019] NSWCCA 276 at [61].
R v Middis (Supreme Court of NSW, Hunt J, 27 March 1991, unreported); Ross v R [2012] NSWCCA 207 at [24]-[26]; R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248 at [12]-[13]; Commonwealth Director of Public Prosecutions v Burrows [2017] NSWCCA 105 at [47]-[53]; R v Demirok [1976] VR 244; R v Jones and Waghorn (1991) 55 A Crim R 159 at 164; R v Iaria [2004] VSC 110.
R v Middis (Supreme Court of NSW, Hunt J, 27 March 1991, unreported); R v Oliver (1984) 57 ALR 543 at 547.
Young v The Queen [2015] VSCA 265 at [37].
R v Middis (Supreme Court of NSW, Hunt J, 27 March 1991, unreported), referring to Guimond v The Queen (1979) 44 CCC (2d) 481; Darby v The Queen (1982) 148 CLR 668 at 678; [1982] HCA 32; R v Oliver (1984) 57 ALR 543 at 547; R v Domican and Thurgar (1989) 43 A Crim R 24; R v Farrell and Cotton (1990) 48 A Crim R 311. See also Trotter v R [2016] NSWCCA 57 at [24]-[26]; Decision restricted [2019] NSWCCA 276 at [59]-[60].
R v Guldur (1986) 8 NSWLR 12 at 16-17; (1986) 25 A Crim R 271; R v Middis (Supreme Court of NSW, Hunt J, 27 March 1991, unreported); R v Alexander and McKenzie (2002) 6 VR 53; [2002] VSCA 183 at [31].
(2002) 6 VR 53; [2002] VSCA 183 at [26].
R v Alexander and McKenzie (2002) 6 VR 53; [2002] VSCA 183 at [31].
R v Alexander and McKenzie (2002) 6 VR 53; [2002] VSCA 183 at [28].
R v Alexander and McKenzie (2002) 6 VR 53; [2002] VSCA 183 at [30].
Decision restricted [2019] NSWCCA 276.
Decision restricted [2019] NSWCCA 276 at [94].
Decision restricted [2019] NSWCCA 276 at [67], [94], referring to R v Pham [2004] NSWCCA 190 at [6] (RS Hulme J, with whom Spigelman CJ relevantly agreed).
Summing Up, 15.08.17 at 2-3.
Remarks on Sentence, at 20.
T761.46.
T762-763.
T763-20.
Summing Up, 11.08.17 at 2-3.
Summing Up, 15.08.17 at 15.
Summing Up, 15.08.17 at 16.
Summing Up, 15.08.17 at 15-16.
Summing Up, 15.08.17 at 26-27.
Summing Up, 15.08.17 at 27-28.
Summing Up, 15.08.17 at 30-31.
Summing Up, 15.08.17 at 33-41.
Summing Up, 15.08.17 at 34.
Summing Up, 15.08.17 at 35.
Summing Up, 15.08.17 at 36-39.
Summing Up, 18.08.17 at 3-17.
Summing Up, 15.08.17 at 15.
See eg Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31] (McHugh J).
Summing Up, 15.08.17 at 30.
(2018) 92 ALJR 1045; [2018] HCA 52 at [30].
Summing Up, 15.08.17 at 39-40.
T571-572. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2019

Criminal Appeal Act 1912(NSW)s 5F, s 5F, to

Criminal Procedure Act 1986(NSW)s 29, s 29, involves

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