Criminal Procedure - Trial - Separate trial - Separate but similar offences - Charges in relation to different people - Possibility of concoction.

MASON C.J., WILSON AND GAUDRON JJ. The facts are set out in the judgment of Brennan and Dawson JJ. We need not repeat them.

2. The question raised by this application for special leave to appeal is whether there should have been separate trials of the separate counts contained in the indictment presented against the applicant. Each count charged the commission of a sexual offence and, unless the evidence of each offence was admissible in relation to the other offences charged, separate trials should have been ordered: De Jesus v. The Queen [1986] HCA 65; (1986) 61 ALJR 1; 68 ALR 1. In the present case the direct evidence of the commission of each offence charged was held to be admissible as similar fact evidence of the other offences charged, and an application for separate trials was refused.

3. The basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency by reason that it reveals a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged. See Dixon J.'s discussion (at p 375) in Martin v. Osborne [1936] HCA 23; (1936) 55 CLR 367. In that same case Evatt J. pointed out that it bears that probative value or cogency not as a matter of deductive logic but by reason that it allows for "admeasuring the probability or improbability of the fact or event in issue, if we are given the fact or facts sought to be adduced in evidence" (at p 385).

4. Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force. See Perry v. The Queen [1982] HCA 75; (1982) 150 CLR 580, at pp 586-587, 605 and 610; Sutton v. The Queen [1984] HCA 5; (1984) 152 CLR 528, at p 563; Reg. v. Boardman 1975 AC 421, at pp 439 and 444. That strength lies in it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.

5. Where the happening of the matters said to constitute similar facts is not in dispute and there is evidence to connect the accused person with one or more of the happenings evidence of those similar facts may render it objectively improbable that a person other than the accused committed the act in question, that the relevant act was unintended, or that it occurred innocently or fortuitously. The similar fact evidence is then admissible as evidence relevant to that issue.

6. Where, as here, an accused person disputes the happenings which are said to bear a sufficient similarity to each other as to make evidence on one happening admissible in proof of the others, similar fact evidence bears a different complexion for the issue is whether the acts which are said to be similar occurred at all. In such a case the evidence has variously been said to be relevant to negative innocent association (R. v. Sims 1946 KB 531) or as corroboration (Reg. v. Kilbourne 1973 AC 729, at pp 749, 751 and 758) but the better view would seem to be that it is relevant to prove the commission of the disputed acts. See Boardman, per Lord Hailsham at p 452 and Lord Cross at p 458; Sutton, per Deane J. at pp 556-557. Certainly that is the thrust of its probative value. That value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred. So much is clear from the well known passage in the speech of Lord Wilberforce in Boardman, at p 444:

7. Similar fact evidence which does not raise a question of improbability lacks the requisite probative value that renders it admissible. When the happenings which are said to bear to each other the requisite degree of similarity are themselves in issue the central question is that of the improbability of similar lies: see Sims, at p 540; Boardman, at pp 439 and 459-460. See also Rupert Cross, "R. v. Sims in England and the Commonwealth", Law Quarterly Review, vol. 75 (1959), p 333; Piragoff, Similar Fact Evidence (1981), pp 38-47.

8. This appears not to have been appreciated in Johannsen v. The Queen (1977) 65 CrAppR 101 and Reg. v. Scarrott 1978 QB 1016, but it is implicit in the observation of Lord Wilberforce in Boardman (at p 444) that "something much more than mere similarity and absence of proved conspiracy is needed if this evidence is to be allowed." His Lordship added:

"This is well illustrated by Reg. v. Kilbourne

1973 AC 729 where the judge excluded 'intra

group' evidence because of the possibility, as it

appeared to him, of collaboration between boys

who knew each other well. This is, in my

respectful opinion, the right course rather than

to admit the evidence unless a case of

collaboration or concoction is made out."

9. His Lordship there posited that the possibility of concoction - not a probability or real chance of concoction - served to render such evidence inadmissible. Indeed we think that must be right. Similar fact evidence is circumstantial evidence, as is implicit in what was said by Dixon J. in Martin (at p 375) and as pointed out by Dawson J. in Sutton (at pp 563-564). In Sutton (at p 564) Dawson J. expressed the view, with which we agree, that to determine the admissibility of similar fact evidence the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence, and ask whether there is a rational view of the evidence that is inconsistent with the guilt of the accused.

10. In cases such as the present the similar fact evidence serves two functions. Its first function is, as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by other complainants. Its second function is to serve as circumstantial evidence of the happening of the event or events in issue. In relation to both functions the evidence, being circumstantial evidence, has probative value only if it bears no reasonable explanation other than the happening of the events in issue. In cases where there is a possibility of joint concoction there is another rational view of the evidence. That rational view - viz. joint concoction - is inconsistent both with the guilt of the accused person and with the improbability of the complainants having concocted similar lies. It thus destroys the probative value of the evidence which is a condition precedent to its admissibility.

11. Thus, in our view, the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction. That is a matter to be determined, as in all cases of circumstantial evidence, in the light of common sense and experience. It is not a matter that necessarily involves an examination on a voir dire. If the depositions of witnesses in committal proceedings or the statements of witnesses indicate that the witnesses had no relationship with each other prior to the making of the various complaints, and that is unchallenged, then, assuming the requisite degree of similarity, common sense and experience will indicate that the evidence bears that probative force which renders it admissible. On the other hand, if the depositions or the statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction then, as a matter of common sense and experience, the evidence will lack the degree of probative value necessary to render it admissible. Of course there may be cases where an examination on the voir dire is necessary, but that will be for the purpose of ascertaining the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of FreasonablF explanation on the basis of concoction. It will not be for the purpose of the trial judge making a preliminary finding whether there was or was not concoction.

12. In the present case it is clear from the evidence that the several complainants had a close relationship as well as opportunity to concoct their accounts of the offences charged. One complainant was ill disposed towards the applicant even before the events the subject of the counts in the indictment were said to take place. There is no feature of the case which displaces concoction as a reasonable explanation of the several accounts. The evidence of the several complainants lacked the requisite probative force necessary to render it admissible as similar fact evidence in relation to the other offences charged. There was therefore a miscarriage of justice by reason that the evidence was wrongly admitted and by reason of the refusal of the application for separate trials.

13. Time to make application for special leave should be extended, special leave granted, the appeal allowed and the convictions quashed. The matters adverted to by Brennan and Dawson JJ. in their judgment make it inappropriate for this Court to order new trials.

BRENNAN AND DAWSON JJ. The applicant, a student teacher, was employed part-time as a recreation officer at the Tufnell Home in Brisbane. The Home cares for young boys. His duties included the planning and carrying out of activities for the boys. Allegations were made by each of three boys who resided at the Home that the applicant had sexually molested him. The applicant was charged on indictment on three counts of unlawfully and indecently dealing with a boy under the age of 14 years. After a trial before a judge and jury in the District Court in Brisbane, the applicant was convicted on each count. The learned trial judge sentenced him on each count to enter into a recognizance of $750 to be of good behaviour for three years. An appeal to the Court of Criminal Appeal against his convictions having failed, the applicant seeks special leave to appeal to this Court.

2. The prosecution joined the three counts in one indictment in pursuance of s.567(2) of The Criminal Code (Q.) which authorizes, inter alia, a joinder of counts when the offences charged are part of a series of offences of the same or similar character. It does not necessarily follow that, because counts are properly joined in one indictment, the trial on each count should not be severed from the others. If the evidence admissible on each count is not admissible on the other counts and there is a consequent risk of impermissible prejudice to an accused in the conduct of a single trial on all counts - and there usually is such a risk in sexual cases - separate trials should be ordered: De Jesus v. The Queen [1986] HCA 65; (1986) 61 ALJR 1; 68 ALR 1.

3. In this case, an application for separate trials was made by counsel for the accused. The application was based on the submission that the evidence of each boy as to the indecent act of which he complained was not admissible as similar fact evidence to prove the indecent acts of which the other boys complained. The evidence was not examined on a voir dire. Nor had the learned trial judge read the depositions taken on the committal proceedings. The Crown prosecutor, who opposed the application, merely outlined the evidence which he proposed to adduce on the respective counts. The learned trial judge, relying solely on that outline, held that the evidence on one count was admissible on the other counts. He said:

4. " The matters referred to by the prosecutor in

these cases are as follows:

1. All the boys were inmates, if that is the

correct word, at Tufnell Home.

2. That they were young boys, their ages being

13, 13 and 10.

3. That the accused was working as a supervisor

at Tufnell Home.

4. In relation to the type of offences, they

all involved penis play, both of the boys and of

the accused.

5. In two of the occasions approaches were

made to boys in showers.

6. In two of the cases use was made by the

accused of the words along the lines of, 'It

cleans it' when referring to touching or playing

with the penis.

7. That these offences took place one at

Tufnell Home itself, one at Scarborough House,

Scarborough, which was associated with Tufnell

Home, and one at Bribie on a Tufnell Home outing.

8. The time span was some six weeks covering

the three offences.

I have sought to particularise the things

relied on by the prosecutor. If I have missed

any, then they will be in the transcript. It

seems that the evidence is admissible in one

count and then it is admissible in relation to

all the other counts. Therefore, it seems to me

that the prosecutor, as it were, clears the first

hurdle, namely that the joinder is proper, they

can be properly joined."

4. The trial proceeded on all counts, the evidence relevant to each count being placed before the jury. The three complainant boys gave evidence. Each of them deposed to an act of indecent dealing. Two of them are brothers, the third is a friend of one of the brothers. It is submitted on behalf of the applicant that there was a real chance that the three boys had put their heads together to concoct the allegations they made and that the existence of that possibility made the evidence of similar facts inadmissible.

5. It appears that there was some antipathy on the part of the three complainant boys towards the applicant which might not have been the result of any indecent act. And the evidence given at the trial evoked from his Honour a warning to the jury "of the danger of conspiracy between boys". In this Court, counsel for the applicant referred to portions of the evidence given at the trial in order to found a submission that there was a real chance that the boys had put their heads together to concoct a story. It is not submitted that the evidence of the three boys was not of striking similarity: on the contrary, it is submitted that the similarity of the evidence might be accounted for by a conspiracy among them. Then it is argued that, whether or not there was in fact a conspiracy, the existence of a real chance of such a conspiracy is sufficient to exclude evidence of similar facts.

6. In Reg. v. Boardman 1975 AC 421, Lord Cross (at p 459) said:

"In such circumstances the first question which

arises is obviously whether his accusers may not

have put their heads together to concoct false

evidence and if there is any real chance of this

having occurred the similar fact evidence must be

excluded."

This passage was relied on as prescribing the absence of any "real chance" of a conspiracy to be a legal criterion of admissibility. We do not think that that is what LordCross intended. It is not the law. The correct approach is stated by Lord Wilberforce who identified the probative force of the evidence of similar facts as the ground for its admission. It is worth quoting at length what his Lordship said (at p 444):

"This probative force is derived, if at all, from

the circumstance that the facts testified to by

the several witnesses bear to each other such a

striking similarity that they must, when judged

by experience and common sense, either all be

true, or have arisen from a cause common to the

witnesses or from pure coincidence. The jury

may, therefore, properly be asked to judge

whether the right conclusion is that all are

true, so that each story is supported by the

other(s).

I use the words 'a cause common to the

witnesses' to include not only (as in Rex v.

Sims 1946 KB 531) the possibility that the

witnesses may have invented a story in concert

but also the possibility that a similar story

may have arisen by a process of infection from

media of publicity or simply from fashion. In

the sexual field, and in others, this may be a

real possibility: something much more than mere

similarity and absence of proved conspiracy is

needed if this evidence is to be allowed. This is

well illustrated by Reg. v. Kilbourne 1973 AC

7 29 where the judge excluded 'intra group'

evidence because of the possibility, as it

appeared to him, of collaboration between boys

who knew each other well. This is, in my

respectful opinion, the right course rather than

to admit the evidence unless a case of

collaboration or concoction is made out.

If this test is to be applied fairly, much

depends in the first place upon the experience

and common sense of the judge."

(Original emphasis.)

7. If there be any difference between what was said by Lord Cross and what was said by Lord Wilberforce, the difference would seldom produce divergent results in practice. The criterion of admissibility of similar fact evidence is that its probative force clearly transcends its merely prejudicial effect (Perry v. The Queen [1982] HCA 75; (1982) 150 CLR 580, at pp 585,604,609; Sutton v. The Queen [1984] HCA 5; (1984) 152 CLR 528, at pp 534,547-549,560,564) and if there is a real chance that the evidence is a concoction born of a conspiracy, the trial judge can hardly be satisfied that it possesses the probative force which alone warrants its admission.

8. The rule which excludes similar fact evidence rests upon the view taken by the law that the mere proof of the commission of offences other than the offence with which an accused is charged does nothing more than establish criminal propensity, either in general or in relation to a particular type of crime. Evidence of criminal propensity - a disposition to commit crime - is prejudicial to an accused for it may be wrongly used as sufficient by itself to show that the offence charged was actually committed. But if the evidence, although of propensity, points in some other way to the commission of the offence charged, it may be admitted provided that the additional probative value is sufficient to outweigh or transcend the inevitable prejudice.

9. In assessing the probative force of evidence of similar facts, a judge must keep in mind the issue to which the evidence is relevant. How does the evidence tend to prove that issue? In cases of the present kind, evidence of the commission by an adult male of indecent acts with a number of boys has sometimes been held admissible on a count charging him with an indecent act committed with a particular boy. The ground on which such evidence has been admitted has been variously identified: the evidence has been held to be relevant to show "a system" (Reg. v. Kilbourne 1973 AC 729, at pp 750-751; Boardman, at p 452; R. v. Jeffries (1947) 47 SR (NSW) 284, at pp 298,308; Reg. v. Witham 1962 QdR 49, at p 76; R. v. Sims 1946 KB 531, at p 539) or to rebut a "defence" of innocent association (Kilbourne, at p 741; cf. Boardman, at pp 443, 458) or to confirm the truthfulness of the complainant's evidence in the particular case: Kilbourne, at p 741, 748-749; Sims, at p 540. Thus in Kilbourne, Lord Hailsham of St. Marylebone, L.C. said, at pp 748-749:

"When a small boy relates a sexual incident

implicating a given man he may be indulging in

fantasy. If another small boy relates such an

incident it may be a coincidence if the detail is

insufficient. If a large number of small boys

relate similar incidents in enough detail about

the same person, if it is not conspiracy it may

well be that the stories are true. Once there is

a sufficient nexus it must be for the jury to say

what weight is given to the combined testimony of

a number of witnesses."

10. Whichever ground has been assigned for admitting evidence of similar facts, the courts have denied that its probative force is to be found in the mere propensity of the accused to commit indecent acts with boys: see, inter alia, Thompson v. TheKing 1918 AC 221, at p 237; Boardman, at pp 438, 451,461; Jeffries, at p 286; Witham, at p 76. The distinction between mere propensity on the one hand and "system" or non-innocent association on the other seems extremely fine. And there may be little distinction between evidence tending to prove the truthfulness of a complainant's evidence and evidence tending to show that the accused was likely to have committed the indecent act to which the complainant testifies. It is not necessary to dwell on these distinctions in this case, for it is not disputed that, if there were no real chance of a conspiracy among the complainant boys, their evidence would have been admissible on all counts. But it is clear that the possibility of a conspiracy is critical to the assessment of the force of each boy's evidence to prove a system or to rebut a defence of innocent association or to confirm the truthfulness of the evidence of another boy. Admissibility of evidence of this kind depends not only on similarity between the acts which the prosecution seeks to prove but, more importantly, on the non-existence of "a cause common to the witnesses".

11. If there is a real danger of the concoction of similar fact evidence it is consistent with the attitude which the law adopts toward evidence of that kind that it should exclude it upon the basis that its probative value is depreciated to an extent that a jury may be tempted to act upon prejudice rather than proof. That consideration is of special importance in cases where the fact to be proved is inferred not from similar facts which have been clearly established but from the concatenation of the testimony of a number of witnesses who depose to the occurrence of similar facts. The credibility of that testimony bears directly on the probative force of the evidence. Several witnesses all giving evidence to a similar effect are generally easier to believe than one witness. But if the witnesses have put their heads together that is not the case.

12. In this Court, counsel for the respondent sought to relegate the question of conspiracy to the status of a factor bearing on the exercise of the general judicial discretion to exclude evidence which, though otherwise admissible, would be unduly prejudicial to an accused: R. v. Christie (1914) AC 545. Whatever scope there may be for the exercise of the general discretion to exclude admissible similar fact evidence, the existence of the general discretion does not subsume the question of conspiracy and remove it from its central place in the assessment of the probative force of the evidence on which the admissibility of the evidence depends. It is a question which must be addressed by the trial judge when the admissibility of the similar fact evidence falls for determination. In the ordinary course, credibility is a question for the jury. That is so even with similar fact evidence. But in determining the admissibility of certain special classes of evidence it is inevitable that the trial judge must make an initial determination of questions of fact which the jury may ultimately have to decide. If the evidence is admitted, its probative force becomes a matter for the jury who may form their own view as to the possibility of a conspiracy among the witnesses to concoct their allegations.

13. Counsel for the respondent foresaw practical difficulties in holding that the trial judge must first assess the probative force of the evidence. It was objected that admissibility of similar fact evidence may have to be determined before the trial begins. A motion to quash an indictment (see s.596 of the Queensland Criminal Code) on the ground that the counts are improperly joined may be moved before the trial begins. The trial is deemed to begin when an accused is called upon to plead to the indictment (s.594) and the motion may be moved before plea. But it is not necessary to decide the admissibility of similar fact evidence at that stage. It is only after the accused has pleaded not guilty to more than one count that there will be occasion to consider the ordering of separate trials (now expressly provided for by s.597A). There is no practical reason why the admissibility of similar fact evidence should not be determined immediately after plea; it would surely defeat the purpose of the determination to leave it until after the accused has been put in charge of the jury on all the counts in the indictment. The panel from which the jury is selected would have to be kept out of court while the matter was determined, but delays of that kind can be dealt with administratively. In this case, the trial judge dealt with the challenge to admissibility and the application for separate trials before the accused was put in charge of the jury. There is no reason why arraignment, plea and application for separate trials should not be dealt with before the time fixed for the attendance of the jury panel.

14. In this case, the trial judge did not examine on a voir dire whether the similar fact evidence might be accounted for by a cause common to the witnesses and it is therefore a matter of speculation whether he would have excluded the evidence if a voir dire had been conducted. Was it incumbent on the trial judge to examine the evidence on a voir dire? It is not always necessary for a trial judge to do so. Whether a voir dire is necessary depends upon the state of the evidence disclosed on the depositions and on the issue for the judge's determination. The problem of admissibility of similar fact evidence is, in this respect, no different from the problem of admissibility of confessional evidence. In MacPherson v. The Queen [1981] HCA 46; (1981) 147 CLR 512, this Court considered the duty of a trial judge to exclude confessional evidence unless he is satisfied of the voluntariness of a confession. There is a like duty on a trial judge to exclude similar fact evidence unless he is satisfied that there is no real chance that it is the product of a cause common to the witnesses. The discharge of either duty may be especially onerous when the accused is not represented, as MacPherson acknowledges.

15. Just as the duty to determine voluntariness arises when the circumstances of the case raise it as a real question (MacPherson, at pp 523,534) a duty to determine whether similar fact evidence is to be accounted for by a cause common to the witnesses arises when the circumstances of the case raise it as a real question. Here, his Honour identified circumstances of association between the complainants which plainly raised the question whether there was a real chance that they had put their heads together to concoct their allegations. That is not to say that a trial judge should lightly conclude that there is a "real chance" of conspiracy among complainants in sexual cases, whether children or adults. Contact or antecedent friendship between complainants may be quite insufficient to found such a conclusion. But the circumstances of their contact or friendship may warrant an inquiry whether there was a real chance that they had agreed to concoct their allegations. When such circumstances appear, the judge must inquire. The trial judge was not asked by counsel to consider the question and he did not do so. Sometimes a judge may properly infer from counsel's failure to raise the question of common cause that it is unnecessary to do so (cf. MacPherson, at p 543) but, in the present case, when counsel stated that he had been briefed late and his Honour had had to adjourn for an hour to allow counsel to prepare an argument, that inference could not be safely drawn. Rather it seems that attention was fastened on the question of sufficient similarity and the question of conspiracy was either overlooked or treated as a question for the jury alone. In the Court of Criminal Appeal, deJerseyJ. inferred that the trial judge had considered the possibility that the boys had concocted their allegations and that his Honour's decision to admit the evidence should not be set aside. With respect, that view does not accord with the absence of an inquiry on voir dire or with the terms of the trial judge's ruling upon the objection to admission.

16. The omission by the trial judge to decide for the purposes of determining admissibility whether there was a real chance of a conspiracy among the boys to concoct their allegations was an error in the conduct of the trial. The error resulted in the admission of what may have been inadmissible prejudicial evidence. There was an error which may have caused a substantial miscarriage of justice. Therefore the appeal against conviction must be allowed. Should a retrial be ordered? The offences of which the applicant was convicted did not attract a custodial sentence and the evidence given at the trial is such that, if a retrial were ordered, the trial judge might well conclude that there was a real chance that the boys had put their heads together to concoct their allegations. The better exercise of the discretion is not to order a retrial. Special leave should be granted, the appeal allowed, the order of the Court of Criminal Appeal should be set aside and in lieu thereof the appeal to that Court should be allowed and the convictions and sentences quashed.

Application for an extension of time in which to apply for special leave to appeal granted.

Set aside the judgment of the Court of Criminal Appeal of Queensland and in lieu thereof -

(i) order that the appeal to that court be allowed and the convictions and sentences be quashed; and (ii)direct that a judgment and verdict of acquittal be entered on each charge.