CRIMINAL LAW - Appeal against sentence - Whether the sentencing judge erred in imposing a higher sentence on retrial than that imposed following previous trial - Observations on justification for increasing sentence following a retrial.

1 The appellant was convicted in the County Court on multiple charges of having sexually abused the complainants, two of his daughters. He challenges those convictions, on two related grounds. First, that the trial judge had erred in admitting into evidence the account of each daughter as tendency and coincidence evidence when the reasonable possibility of collusion and concoction between them could not be excluded. Second, that the directions to the jury did not adequately explain the process of tendency or coincidence reasoning or the features of the complainants' evidence that could support tendency or coincidence reasoning and how the possibility of collusion and concoction might affect such reasoning.

2 This was one of those rare cases where the possibility of collusion or concoction did not rest solely upon the drawing of inferences. There was explicit evidence from the appellant's third daughter that she had been pressured by her sisters, the two complainants, to give false evidence in support of their allegations which she now alleges she did at the first trial. In the second trial she recanted her evidence at the first trial and gave evidence for the defence. In addition there were only two matters contained in the complainants' accounts that could satisfy the criterion of being sufficiently similar or which disclosed underlying unity. As to those matters there was uncontroversial evidence that the complainants had discussed both matters before making their statements to the police investigators.

3 The facts are set out in the reasons of Priest JA which we have had the considerable benefit of reading.

4 As to the first ground, it was for the trial judge to determine only whether those features of the complainants' accounts which had the requisite degree of similarity were capable of reasonable explanation on the basis of collusion and concoction. If there was a rational view that those features of the two complainants' account could be so explained, the evidence of one could no longer have probative value as confirmatory of the others account. The requirement of s 101(2) of the Evidence Act 2008 ('the Evidence Act') could not be satisfied as the evidence did not have the necessary degree of cogency.[1]

5 Senior counsel for the respondent, in an attractive submission, sought to identify evidence which might have explained why the jury may have rejected the direct and explicit evidence of collusion and concoction. He also drew attention to the evidence given during the course of the trial as material we may take into account in assessing whether there has been a miscarriage of justice.[2] But the fact that it was likely, though not necessary, that the jury did reject the explicit evidence of collusion in order to convict, does not mean that the judge was right to have admitted the evidence.

6 The respondent's argument does not address the non controversial evidence discussed by Priest JA as to how the common features of the complainants' accounts came into existence.

7 As to the express evidence of collusion, it was not for the trial judge to make her own assessment of the credibility of that evidence. The trial judge was not to determine the actual weight that she considered should be assigned to the evidence or make any prediction about the weight that the jury would assign to the evidence.[3] Her Honour's task was to determine only whether there was a reasonable possibility that a rational jury might regard that evidence as providing a credible explanation for the similar features in their accounts. If the hypothesis of collusion and concoction could not be excluded, the accounts would not have that quality of independence necessary to achieve the probative value required by s 101.

8 For these and the reasons given by Priest JA at [95]-[102], we agree that ground 1 is made out.

9 With respect to ground two, the appellant's submissions set out at [120]-[124] of the reasons of Priest JA are also made out, essentially for the reasons given by Priest JA at [135]-[139].

10 The appeal should be allowed and the appellant's conviction quashed and a retrial ordered.

11 This is not the occasion, in our respectful opinion, to explore context or relationship evidence or how s 97 and s 98 of the Evidence Act relate to such evidence. These were not issues raised by the grounds of appeal. They were not explored by the parties at trial or on appeal. The objection to the cross admissibility of the complainants' evidence as tendency and coincidence evidence was confined to whether the evidence of collaboration and concoction prevented it from being so used.

12 Where offences of sexual abuse are alleged, evidence of the sexual relationship of an accused to the complainant has long been admitted into evidence. Such evidence may be admitted for different purposes. It may be adduced only as evidence of the context in which the charged offences occurred or as evidencing a sexual interest in the complainant. It may take the form of uncharged acts providing evidence of a guilty passion or a sexual interest in the complainant on which the accused was willing to act. Principles have been developed concerning the admission of such evidence, the use to which it may be put and the standard of proof of such matters. Whatever attraction one may have to aspects of the reasons of Priest JA concerning context and relationship evidence and the way in which it has to date been treated, to depart from previous decisions of this court or from the line of authority of the NSW Court of Appeal to which his Honour refers on matters concerning the Evidence Act or its application to those particular types of evidence, would require a court constituted by five judges to be satisfied that such previous authority was plainly wrong and ought not to be followed.

13 As to the appeal against sentence, it is well settled that following a retrial a judge should ordinarily impose the sentence that has been previously imposed. We

agree for the reasons given by Priest JA that no satisfactory reason has been shown why the previous sentence was not again imposed. The fact that the appellant, in pursuit of his defence, pursed allegations of collaboration and concoction at the second trial, did not provide a basis upon which to depart from the sentence previously imposed. And if the Crown considered the sentence previously imposed to be manifestly inadequate, it should have appealed the sentence. It was not for the trial judge to review the adequacy of the previous sentence, which in our view fell within a sound exercise of the sentencing discretion.

14 Important issues are raised by the conviction appeal in this case concerning the admissibility in trials for sexual offences of tendency and coincidence evidence when concoction, collaboration or contamination are raised, and as to the jury directions necessary upon the admission of such evidence. The sentence appeal deals with those circumstances when a judge in a retrial after a successful conviction appeal is justified in imposing a more severe sentence than that first passed.

15 Those issues arise following a trial in the County Court where, on 8 March 2012, the appellant was convicted by a jury of a variety of sexual offences committed against his two natural daughters, GC and RC. The trial was a retrial following earlier convictions and a successful appeal.[4]

16 On 26 July 2012 the appellant was sentenced to be imprisoned for 12 years and four months with a non-parole period of nine years.

17 In my opinion, for reasons that follow, the appeal against conviction should be allowed. Although success on the conviction appeal renders consideration of the sentence appeal strictly unnecessary, given the significance of the issue it raises, I

should express my reasons for concluding that there was no justification for the judge on the retrial imposing a more severe sentence than that passed at the first trial.

18 Originally a single ground of appeal against conviction asserted that the trial judge 'erred in admitting the tendency and coincidence evidence'. On the hearing of the application for leave to appeal, Mr McLoughlin, on behalf of the appellant, sought to add a second ground touching conviction in the following terms:

1. The learned trial judge erred in failing to direct the jury that they could not convict unless they were satisfied that there was no reasonable possibility of concoction or collusion.

19 On the hearing of the appeal, the appellant was granted leave to reformulate ground 2, and to add a third ground, as follows:

2. The learned trial judge erred in

(a) failing to direct the jury that they could only consider tendency or coincidence reasoning if they had excluded the reasonable possibility of collusion

(b) failing to particularise sufficiently clearly and separately the matters relied on as supporting coincidence and tendency reasoning

(c) failing to identify material differences in the two complainants' description of events by which might bear (sic.) on whether the requisite degree of similarity could be found

(d) failing to identify with sufficient particularity how tendency and/or coincidence evidence could be used

(e) failing to direct the jury that they could not convict unless they were satisfied there was no reasonable possibility of concoction or collusion

1. The learned trial judge erred in failing to disclose to counsel the precise terms of the note sent to her Honour late on 7 May 2012 after the jury had been deliberating for about 2 days.

20 The appellant was convicted of one count of maintaining a sexual relationship with a child under the age of 16[5] (charge 1), five counts of incest[6] (charges 2, 5, 6, 7 and 8), two counts of indecent assault[7] (charges 3 and 4) and three counts of an indecent act with a child under 16[8] (charges 9, 10 and 11). The two complainants were the appellant's two elder biological daughters, GC and RC. Charges 1 to 8 related to GC; and charges 9 to 11 to RC.

21 The counts involving GC, who was born 21 March 1993, spanned a period from 1 January 2004 to March 2010, when GC was aged between 12 and 17 years. Various activities were embraced by the charges, including massage and sucking of the complainant's breasts; masturbation of the appellant's penis; digital penetration of the vagina; fellatio; cunnilingus; penile penetration of the vagina; and penile penetration of the anus.

22 With respect to RC, born 3 April 1994, the activities involved in the charges spanned a period from 1 November 2009 to 31 January 2010 when she was aged about 16 years, and included massage of the complainant's breasts; masturbation of the appellant's penis; and the appellant showing her his penis.

23 At trial, the prosecution sought to rely on tendency[9] and coincidence[10] evidence.

24 A Tendency Evidence Notice under s 97(1) of the Evidence Act 2008 ('the Act') was filed which relevantly contained the following:

3. The tendency sought to be proved is the tendency of [the appellant] to:

(a) act in a particular way, namely:

Sexually assault his natural daughters [GC] and [RC] in circumstances where:

• Each was a young girl below the age of 18 and his natural daughter
• Their mother was not present, and in relation to each complainant, their other sibling/s were not present in the same room
• He used innocent-seeming situations and behaviour as a prelude to sexual assault

(b) have a particular state of mind, namely:

A sexual interest in his natural daughters [GC] and [RC] which was willing [sic.] to act upon.

Set out thereafter in the Notice was a table, Table B, containing Particulars of Conduct.

25 The prosecution also filed a Coincidence Evidence Notice under s 98 of the Act, which contained the following:

4. The coincidence evidence will be adduced to prove that

(a) [The appellant] did a particular act namely:

Engaged in sexual activity with two of his natural daughters [GC] and [RC] on the occasions alleged in each charge in circumstances where:

(b) Each was a young girl below the age of 18 and his natural daughter

(c) Their mother was not present, and in relation to each complainant, their other sibling/s were not present in the same room

(d) He used innocent-seeming situations and behaviour as a prelude to sexual assault

(b)[11] [The appellant] had a particular state of mind, namely:

Had sexual interest in his natural daughters [GC] and [RC] and a willingness to act upon this sexual interest.

1. The prosecution contends that the accused demonstrated a pattern of conduct in respect of the offending against the two complainants. The specific similarities of this conduct are outlined in the table directly below:[12]

What followed thereafter was a Table, which purported to compare similarities under seven headings. In summary, it set out:

1. Age of complainant - GC was between 11 and 17, and RC was aged 16 years
2. Type of sexual act committed - rubbing cream on breasts and masturbating the appellant's penis
3. Relationship of the complainant and the accused - both were his natural daughter
4. Modus Operendi [sic., Operandi] - included were asking the complainants questions 'about her sexual activity and knowledge', at the 'end of the sexual encounter told each complainant to "take it to her grave"', made remarks to each about teaching them and rubbing vitamin E cream onto the complainants' breasts saying it would get rid of stretch marks
5. Circumstances surrounding the offending - the appellant offended against each complainant when her mother was away or in her study
6. Location of the offending - either occurred in, or sometimes occurred in, the appellant's bedroom
7. Consequence of the offending - both complainants left home because of the sexual offending

A further table, Table B, thereafter contained Particulars of Conduct.

26 Common features of both Notices were that the particular circumstances relied upon included that both complainants were under the age of 18 and the appellant's natural daughter; the incidents taking place while the appellant's wife was out of the house and the other sibling was not present; and the appellant used seemingly innocent situations and behaviour as a prelude to sexual assault.

27 As I have said, the complainants, GC and RC, were the appellant's biological daughters.

28 It was the prosecution case that all of the offending occurred in the family home the appellant shared with his wife, three daughters and younger son, on a property south east of Melbourne. The office of the appellant's business was also on the property in separate premises. During the week the office was staffed by a number of employees. The appellant's wife also worked there.

29 The appellant's offending occurred when his wife was away from the house, possibly working at the office, at weekend meetings of Jehovah's Witnesses or when out shopping. Specifically, the activities the subject of charges 3 to 8, which involved GC, were said to have occurred on one occasion, after the appellant's wife had left the family home with the youngest daughter, SC, and son, WC, following an argument.

30 The jury found the appellant guilty of maintaining a sexual relationship with GC, charge 1, which related to a period between 1 January 2004 and 20 March 2009. For conviction on this charge, the jury needed to be satisfied that on at least three occasions the appellant took part in one or more of the following acts with GC:

31 The following events were the foundation of charge 1, maintaining a sexual relationship with a child under 16. GC was approximately 12 years of age when the offending began. In 2005, as a result of a phone call from GC's school, her mother became aware that GC had not attended school, but rather had left the school premises with a young boy. The appellant collected his daughter and took her home. GC was permanently removed from that school and placed in another. The first occasion GC said that the appellant sexually interfered with her followed her being found by him at the boy's house. It was a Saturday late in May 2005. The appellant began to talk to her about sexual matters involving her boyfriends. On that occasion he put his hand down her pants and put his fingers into her vagina. He also made GC masturbate him to the point of ejaculation, telling her not to disclose what had occurred, but to 'take it to her grave'.

32 GC gave evidence about an incident a few months after the first incident, when the appellant had just got out of the shower and was wrapped in a towel. He called GC into the bedroom, told her to lock the bedroom door behind her, dropped his towel, grabbed the back of GC's head and put his penis into her mouth, pulling her head backwards and forwards until he ejaculated.

33 The next incident GC gave evidence about was when she was about 15 years of age and her mother was at a meeting of the Jehovah's Witnesses with the other children. GC had been left at home alone with the appellant. He asked her if she wanted him to teach her something, and told her to take off her pants and lie on the bed. He got on his knees and started licking her clitoris and vagina until it hurt her. The appellant asked GC if she had 'ejaculated' (sic.) and she said that she had.

34 When GC was approximately 14 or 15 years old she recalled that the appellant would call her into the bedroom when the rest of the family were not there, and direct her to remove her top and bra. He then rubbed vitamin E cream onto her breasts and sucked them, telling her it would get rid of stretch marks.

35 Charge 2, incest, occurred on a Saturday when GC was 16 years of age. Her mother was out. The appellant and GC were in his bedroom. He told her to take off her clothes, which she did, and to get on all fours on the bed. He put saliva on his penis and inserted it into her anus. GC was in a lot of pain, but he told her the pain would cease in a minute. He thrust in and out of her anus until he ejaculated. When GC went to the toilet, she noticed she was bleeding and that it was mixed with semen. GC's mother returned home with shopping which she helped unload.

36 Charges 3 to 8 related to events in approximately January 2010, when GC was 17 years of age. One night, the appellant and his wife had had an argument. She left the family home with SC and WC. Thus the appellant was at home with his daughters, RC and GC. He told GC to come into his bedroom, to take off her clothes and to get into the bed with him. He started kissing her, putting his tongue in her mouth (charge 3). The appellant took GC's hand, put it on his penis and made her start pulling it (charge 4). He then used his finger and played with her clitoris and the inside of her vagina (charge 5), following which he got on top of GC inserting his penis into her vagina (charge 6). The appellant then performed oral sex on GC (charge 7) and also made her suck his penis to the point of ejaculation (charge 8). Her mother returned home early the next morning.

37 GC also gave evidence of uncharged acts. When she was 14 and 15 she had bad stretch marks on her breasts. When other members of the family were out, the appellant would call GC into his bedroom and make her remove her top. He would then rub vitamin E cream into GC's breasts saying this was to get rid of the stretch marks. This occurred once a week. The appellant would also suck GC's nipples and ask if she felt anything. On some occasions, after rubbing GC breasts, the appellant would make GC perform fellatio until he ejaculated. GC could not remember the first or the last occasion when the appellant had rubbed her breasts but knew it had ceased by the time she had turned 16. She alleged regular and ongoing sexual abuse which she was not able to particularise in detail, including that the appellant would attempt a sexual act at every opportunity when they were alone; would regularly compel GC to perform fellatio on him after he showered on coming home from work if GC's mother was not around (this also occurring on Saturdays); and would also digitally penetrate GC on these occasions. Similar things occurred three times a week.

38 When aged 14 years, GC went to Sydney with the appellant, his brother and RC. They stayed at a hotel or motel in two suites. The appellant insisted that he and GC share a suite. RC and the appellant's brother were in the other suite. The appellant made GC share his bed, and this was the first time that they had penile vaginal intercourse. During intercourse the appellant used a condom and ejaculated.

39 In March 2010 GC moved out of the family home and went to live with her boyfriend's family. Between late 2009 and early 2010 GC disclosed the offending against her to her boyfriend, AC. In addition she told her boyfriend's mother, KC, about it.

40 AC, her boyfriend, gave evidence of overhearing a telephone conversation between GC and the appellant in January 2010. The appellant asked GC whether she had slept with AC yet. When GC said that she had, the appellant asked whether AC was as good as him. Further, on 29 June 2010, after her allegations became known to the appellant, GC met the appellant at a coffee shop. GC wore a recording device. In this conversation the appellant said 'what we had was consensual'. These were relied upon by the prosecution as implied admissions.

41 Charge 9 involved RC. She described an incident when she was approximately 16 years of age and lying on the appellant's bed, when he noticed her stretch marks. He told her to remove her top so he could rub cream on her back. The appellant rubbed cream on her back, then started rubbing cream onto her breasts.

42 The second incident involving RC, the subject of charge 10, occurred when she was alone in the house with the appellant, lying on his bed talking to him about why he would not let her out of the house. The appellant said it was because she was not experienced, and he then began asking questions about her sexual activity and knowledge, including if she knew how to 'pull a guy off'. He took his penis out and said that he would teach her. The appellant put her hand on his penis, and moved it up and down until he ejaculated. He told her to 'take it to [her] grave', and not to talk about it or say anything to anyone about it.

43 Charge 11 concerned another occasion between November and December 2009, when RC was lying on the appellant's bed. He asked RC about how many males she had previously had sexual intercourse with, and if she knew how to do things. The appellant drew a diagram of a penis to describe a particular area to stimulate. He then took his penis out, told RC to look at it and showed her where 'the glands' were.

44 As earlier observed, the appellant was initially convicted of the offences on the indictment in March 2011. At that trial the appellant's youngest daughter, SC, who was then aged 15 years, gave evidence of frequently observing GC going into the appellant's bedroom.

45 Shortly after the trial, however, SC told police she had lied in her evidence. SC claimed that she had been pressured her into making a statement by her sisters, GC and RC, so as to support their accounts. Both GC and RC had admitted to her that their allegations were 'a setup' for the purpose of getting money.

46 SC was interviewed by police on 8 April 2011. She admitted perjury. In the interview SC alleged that her sisters had threatened to kill her if she did not support them. The prosecution did not call SC at the second trial, but the interview conducted by police with SC was played to the jury and tendered as part of the prosecution's case. SC, the prosecution argued, was not a witness of truth and her recantation was the result of collusion with the appellant and his wife.

47 SC was called as a witness for the appellant. So, too, was the appellant's wife. The appellant also gave evidence denying the allegations.

48 The defence case was that the allegations were false. In part they had been concocted because of resentment within the family.

Admission of tendency and coincidence - ground 1

49 The first ground of appeal touching conviction claims that the trial judge 'erred in admitting the tendency and coincidence evidence'. This ground should be upheld.

Ruling on tendency and coincidence evidence in the first trial

50 As I have earlier observed, there had been a previous trial of the appellant in 2011 which had resulted in convictions. In order to fully understand the first ground of appeal, it is necessary to say something of what occurred in that first trial. In that trial, the then trial judge was called upon to rule upon the admissibility of tendency and coincidence evidence. Defence counsel contended that the evidence of the two complainants was not cross-admissible, and that severance should be ordered.

51 In a ruling in the trial in 2011, the trial judge observed that the 'credibility of both complainants is the central issue in the trial', and that the facts in issue were 'whether or not each event specified and described occurred'. She said that the tendency sought to be proved for the purposes of s 97(1) of the Evidence Act 2008 was that of the appellant to 'sexually assault his natural daughters' in circumstances where each was below the age of 18 years; their mother and other siblings were not present in the same room; he used 'seemingly innocent situations and behaviour as a prelude to sexual assault; and at the conclusion of the sexual assault he would tell the relevant complainant 'to take it to her grave'. Further, it was alleged that the appellant had a tendency to have a particular state of mind, 'namely a sexual interest in his natural daughters, GC and RC, which he was willing to act upon'.

52 In ruling that the evidence of one complainant might be led in support of the evidence of another, the trial judge found there to be a 'continuum' and 'underlying unity' in the offending against each complainant, and that by reference to s 101(2) of the Act, the probative value of the evidence outweighed its prejudicial effect.

53 So far as coincidence was concerned, the trial judge generally held the evidence of the complainants to be cross-admissible under s 98(1), 'because it is implausible that such events occurred coincidentally having regard to the similarities of the events or circumstances'. She ruled, however, in reliance on both s 135 and s 137 of the Act, that the 'take it to the grave' comment could not be led as coincidence evidence, because the comment was not initially volunteered by RC, but was one suggested to her by another.

54 The reasons why the convictions in the first trial were set aside related, as I have said, to the recantation by SC, who was the appellant's youngest daughter. At the risk of some repetition, in the first trial she gave evidence that, among other things, corroborated the evidence of the two complainants, GC and RC. In April 2011, however, shortly after the appellant was convicted, SC recanted the evidence given at the trial. She claimed it was false and made as a result of threats made against her by her two sisters, GC and RC. SC claimed that she thus agreed to give false evidence against her father. A subsequent police investigation concerned whether the witness should be charged with perjury, but no charges were laid. On appeal to this Court, the prosecution conceded that there was a significant possibility that a jury acting reasonably would have acquitted the appellant of the charges if the fresh evidence from SC had been before them during the trial. In light of the post-trial conduct of 'the key prosecution witness', the convictions were quashed and a new trial ordered.[13]

Ruling on tendency and coincidence evidence in the current trial

55 On the retrial - with which this appeal is concerned - defence counsel sought to revisit the issues of tendency and coincidence evidence. He did not challenge the ruling as it related to ss 97 and 98 of the Act, however, instead submitting that events subsequent to that ruling - SC's recantation - enlivened s 101(2). In essence, he submitted that the tendency and coincidence evidence sought to be adduced by the prosecution should not be permitted in a joint trial as its probative value did not substantially outweigh its prejudicial effect. He conceded, however, that, should the prosecution be successful on its submission regarding s 101, there was 'not much room' to exercise the discretion in s 135 or s 137. Counsel submitted that the recantation by SC, and the financial motive she attributed to her two sisters to make false complaints against their father, diminished the probative value of the evidence of GC and RC. He submitted that the record of interview of SC with police - which the judge had before her - provided 'more than mere speculation regarding collusion and contamination between GC and RC when making their allegations'.

56 The trial judge had the whole of the police brief relating to the investigation of SC's possible perjury. In her ruling concerning the tendency and coincidence evidence, she noted that in that investigation GC denied having discussed SC's original police statement with her, and also denied telling SC what to say in that statement. Further, GC denied threatening SC to make that statement. The judge also noted that RC too was asked by investigators about 'SC's suggestion of collusion, contamination and conspiracy'. RC told police that the first she ever knew of SC making a statement to police was when her grandmother told her. She said she did not speak to SC about her statement, had not told SC what to say in the statement and did not know what was in that statement.

57 In refusing to exclude the evidence, the judge cited AE,[14] but seemed to think that this Court's decisions in DR[15] and KRI[16] justified the admission of the evidence despite the possibility of collusion, concoction or contamination.[17] Significantly, she ruled as follows:[18]

If the evidence shows the possibility of concoction, collusion I am bound to examine that issue to see what bearing it has on the question of whether the evidence has significant probative value when considering s 101(2). In my opinion the material relied upon by [defence counsel] emanating most recently from SC does not suggest to the requisite standard, the conclusion, concoctions, conspiracy urged by him.

...

In my opinion the recent police investigation of SC and the allegations she made regarding not only financial motive of GC and RC to lie, but also her recanting of her evidence from the first trial does not lead to the conclusion of possible to the requisite standard concoction [sic.] or contamination sufficient to lead to acceding to [defence counsel's] submission regarding s 101 of the Act. In so determining, in my opinion I do not need to determine s 135 or s 137.

58 The appellant submits that the judge's ruling admitting the evidence of tendency and coincidence betrays error in the approach to ss 97, 98 and 101 of the Evidence Act 2008 in several respects. First, it is submitted that ss 97, 98 and 101 place the burden on the prosecution to establish that the evidence is admissible, not on the defence to exclude it, but that the trial judge placed the onus of satisfying her that the evidence should be excluded on the defence.

59 Secondly, it was contended that, for the evidence to be admitted, s 101(2) made it necessary for the prosecution to establish that the probative value of the evidence substantially outweighed any prejudicial effect it may have had. Section 101(2) requires the making of a judgment not the exercise of a discretion.[19] There is no sign that the trial judge conducted any such weighing process; nor is it clear what standard of satisfaction she applied in deciding to admit the evidence.

60 Thirdly, it was submitted that it was unclear how the trial judge approached the issue of possible collusion or concoction. It is not clear whether she considered that the proposed coincidence and tendency evidence had sufficient probative weight to be admitted despite the allegation of collusion or concoction. AE, DR and KRI, it was argued, 'reflected different approaches to the question of concoction or collusion'. Moreover, none of those cases involved 'direct' evidence of concoction or collusion, the courts being concerned with whether 'an inference of a real possibility of concoction or collusion could be drawn from contact between complainants or familial relationship between them'.

61 Fourthly, it was submitted that a fair reading of the ruling left it open to conclude that the trial judge took into account her own view of the credibility of SC's allegations in concluding to admit the evidence. To do so, it was submitted, was contrary to this Court's pronouncements in Dupas.[20] Whilst the trial judge was entitled to consider issues of reliability, she was not permitted to make an assessment of SC's credibility.

Context and relationship, tendency and coincidence, and collusion and contamination

62 Distinctions, which to my way of thinking are not wholly satisfactory either as a matter of logic or principle, are often drawn between evidence labelled 'context' and evidence called 'relationship'. And distinctions are often drawn between context and relationship evidence (so called) on the one side, and 'tendency' and 'coincidence' on the other. Sometimes, however, depending on the reason for its introduction, context or relationship evidence may be tendency evidence, thus attracting the provisions of the Evidence Act 2008. Moreover, very often tendency evidence and coincidence evidence - which are distinct species for the purposes of the Act, and owe their admissibility to different considerations - overlap. The jury directions that are necessary between the categories - both as to use and non-misuse - of the evidence widely varies. Evidence of context, relationship and tendency is often in the form of uncharged acts, the standard of proof of which fuels an ongoing controversy. In short, the law in the general area of what might be classed propensity evidence, is a farrago from which it is impossible to derive much harmony.

63 Pfennig[21] is the leading case in this country on propensity evidence at common law. Mason CJ, Deane and Dawson JJ introduced their joint reasons by saying:[22]

This appeal raises questions as to the admissibility of what has been described as propensity or similar fact evidence and the use to which it can be put. There is no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged. It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence. Those categories are not exhaustive and are not necessarily mutually exclusive. The term 'similar fact' evidence is often used in a general but inaccurate sense.

64 Callaway JA (with whom Phillips CJ and Buchanan JA agreed) illuminated the topic of propensity evidence in Best.[23] He described the ratio of Pfennig:[24]

The ratio decidendi of Pfennig's case is that propensity evidence (or at least the kind of propensity evidence with which that case was concerned) is inadmissible if there is a reasonable view of the evidence that is consistent with the innocence of the accused, for otherwise its probative value cannot transcend its prejudicial effect. ... That test of admissibility, which I shall call 'the Pfennig test', also finds expression in Hoch v R [1988] HCA 50; (1988) 165 CLR 292 at 296, where Mason CJ, Wilson and Gaudron JJ expressed their agreement with Dawson J's observations in Sutton v R [1984] HCA 5; (1984) 152 CLR 528 at 564.

The two main divisions of propensity evidence are similar fact evidence and relationship evidence. There are subdivisions. For example, similar fact evidence may go to the identity of the offender or to the improbability of coincidence if a number of similar accounts are all true. It usually, but not always, involves an offence against a different victim. Relationship evidence is different in that last respect but, like similar fact evidence, its probative value also varies from case to case. Sometimes it is necessarily led to make a complainant's account intelligible. On other occasions it negates accident or establishes motive. The foregoing is neither exhaustive nor intended to be definitive. It is a prelude to saying that in this judgment ... I have tried to be discriminating and endeavoured to use the expressions 'propensity evidence' (in the broad sense described in the italicised sentences above), 'similar fact evidence' and 'relationship evidence' in a consistent fashion. Observations about similar fact evidence, in particular, do not apply to all propensity evidence.

65 As a reaction to the Pfennig test for admissibility - which set a high bar for the admissibility of propensity evidence - the Victorian legislature introduced s 398A of the Crimes Act 1958 (since repealed[26]), which read:[27]

(1) This section applies to proceedings for an indictable or summary offence.

(2) Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence.

(3) The possibility of a reasonable explanation consistent with the innocence of the person charged with an offence is not relevant to the admissibility of evidence referred to in sub-section (2).

(4) Nothing in this section prevents a court taking into account the possibility of a reasonable explanation consistent with the innocence of the person charged with an offence when considering the weight of the evidence or the credibility of a witness.

(5) This section has effect despite any rule of law to the contrary.

66 Although the expression 'propensity evidence' was not defined, in Best Callaway JA expressed the view[28] 'that the main contours of s. 398A are clear'; and that, subject to qualifications, 'the "[p]ropensity evidence" referred in subs (2) is evidence which is received notwithstanding that it discloses the commission of offences[29] other than those with which the accused is charged'.

67 In England, the position in relation to similar fact evidence following DPP v P[30] was that such evidence was inadmissible unless its probative value was sufficiently great to make it just to admit the evidence notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another offence.[31] It was held that such probative value may be derived from striking similarities between the similar fact evidence and the evidence directly relating to the offence charged, but that that is not an essential prerequisite.

68 Later, in R v H[32] it was made clear that the comparison of the probative value of the evidence with its prejudicial effect was to be undertaken on the basis that the evidence is accepted as true.[33] Thus collusion or unconscious influence had no bearing on the question of admissibility. The Pfennig test, which had derived from Hoch, was expressly disapproved.[34]

69 With particular reference to concoction, having cited from the speech of Lord Wilberforce in Boardman,[35] Mason CJ, Wilson and Gaudron JJ observed in Hoch:[36]

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 ... In Sutton 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.

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.

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 reasonable 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.

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.

70 Callaway JA expressed the opinion in Best - with respect, undoubtedly correct - that s 398A of the Crimes Act 1958 was designed to adopt the English test for admissibility of all propensity evidence, in preference to the Pfennig test. Questions of collusion and unconscious influence were to be left to the jury[37] - '[t]he possibility, even a strong possibility, of collusion or any other matter affecting the reliability of the evidence is a matter for the jury'.[38]

71 To summarise, the common law in Australia following Hoch and Pfennig was that the possibility of collusion was sufficient to render similar fact evidence - a species of propensity evidence - inadmissible. (As I have said, this position was not embraced in England.) Section 398A of the Crimes Act 1958 was a legislative response to Pfennig, designed to adopt the English approach, so that the possibility of collusion, unconscious influence or the like, were not to bear on admissibility.

72 In my opinion, where with respect to tendency and coincidence evidence there exists a real possibility of concoction, collusion or contamination, the position under the Evidence Act 2008 is akin to that at common law following Hoch.

73 Any analysis of the admissibility of tendency and coincidence evidence must start with an examination of the key provisions of the Evidence Act 2008.

74 By s 55(1), 'evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding'. Section 56(1) makes clear that, save as otherwise provided by the Act, evidence that is relevant in a proceeding is admissible; and by s 56(2), evidence that is not relevant is not admissible.

75 It is plain that the language of s 55(1) reflects the common law's notions of relevance.[39] In Chee[40] the Full Court said:[41] 'Putting aside exclusionary rules, the test of admissibility of evidence is whether it is probative: ie whether it increases or diminishes the probability of the existence of a fact in issue'.[42] Thus, although the admissibility of tendency and coincidence is governed by the provisions of the Act, some guidance may be derived from the common law's approach to cases such as the present.

76 The expression 'fact in issue', found in s 55(1), is not defined in the Act. But it may safely be concluded that, in a criminal case, the ultimate issue will be the existence of one or more of the elements of an offence. Facts in issue in the proceeding will be those bearing on the existence of those elements, and behind those will potentially be many facts relevant to those facts in issue.[43] In this case, the principal fact in issue on each charge was whether the sexual activity alleged had occurred at all. Hence to be relevant and admissible, evidence in the case needed to be capable of rationally affecting the assessment of whether the sexual activity alleged had occurred.

77 As I have said, the prosecution apparently sought to rely on tendency evidence, which is admitted to show that an accused has a tendency to act in a particular way or have a particular state of mind. Its admissibility is governed by s 97(1), which relevantly provides:

97. The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless -

...

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

78 Reliance was also placed on coincidence evidence. Coincidence evidence is tendered to show that a person did a particular act or had a particular state of mind. It invites scrutiny of the similarities of events and the circumstances in which the events occurred, in order to show that the events did not occur coincidentally. The admissibility of coincidence evidence is provided for in s 98(1), which, so far as presently relevant, provides:

98 The coincidence rule

(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless -

...

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

79 The Dictionary to the Act defines the probative value of evidence as 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'. Both s 97 and s 98 provide a threshold to admissibility in that it is not enough for tendency evidence[44] or coincidence evidence[45] merely to have probative value - the probative value must be significant. I adhere to what I said in Semaan,[46] when discussing the meaning of significant as relevant to tendency evidence:

... No definition or explicit guidance is provided in the Act, however, as to the meaning of the adjective significant, but it is plain that it must have some work to do. Hence according to ordinary canons of construction, significant falls to be interpreted according to its ordinary usage.[47]

There have been judicial attempts to ascribe a meaning to significant for the purposes of s 97. Thus, Hunt CJ at CL in Lockyer[48] and in Lock[49] expressed the view that one of the primary meanings of 'significant' is 'important' or 'of consequence'. His Honour also expressed the opinion,[50] drawing on implications of the rejection of certain recommendations of the Australian Law Reform Commission,[51] that 'significant' probative value must mean something more than mere relevance but something less than a 'substantial' degree of relevance.[52]

In my opinion, attempts at reformulation of the statutory language are unlikely to be productive of much in the way of enlightenment;[53] but to my mind (and with respect to those views which coincide with that of Hunt CJ at CL) in context 'significant' must bear a meaning closer to 'substantial' than to 'important' or 'of consequence' which, as synonyms, to me do not adequately convey the import of 'significant'. Three observations may, however, safely be made. First, s 97 is designed to impose a high (or, at least, higher) threshold of admissibility than for evidence which has 'mere' probative value. Secondly, the adjective 'significant' is directed to the quality of the evidence, rather than to its quantity. Thirdly, it is plain that the court is required to make an assessment of the quality of the evidence, since it is only if the court 'thinks that the evidence will ... have significant probative value' that it may be admitted. In every case this will be a matter of fact and degree, and will be influenced by the nature of the fact in issue sought to be proved (or disproved).

80 Both s 97 and s 98 create exclusionary rules. On one view, they adopt a broad approach akin to the common law in making admissibility in criminal proceedings depend on 'significant probative value'. Tendency evidence and coincidence evidence will be excluded unless the evidence reaches a high threshold of admissibility. That both tendency and coincidence evidence must reach a high threshold of admissibility is emphasised by s 101(2) of the Act, which provides that in criminal cases, tendency evidence adduced by the prosecution cannot be used against him or her 'unless the probative value substantially outweighs any prejudicial effect it may have'. Thus s 101(2) also is broadly akin to the common law in that it creates a further exclusionary rule where the probative value of the evidence does not substantially outweigh any prejudicial effect it may have. When read together, the provisions of s 97(1), s 98(1) and s 101(2) make it abundantly clear that tendency evidence and coincidence evidence must possess a high degree of cogency before being admitted.[54] As I observed in Semaan:[55]

In my view, a non-exhaustive list of factors which may bear upon whether evidence has significant probative value in proof of an alleged tendency might include the number of occasions that the conduct displaying the alleged tendency have occurred; the temporal (and, perhaps, geographical) connection of such conduct with the charged conduct; the degree of similarity between the evidence of tendency and the charged conduct on the various occasions alleged (for example, its distinctiveness, such as showing a particular pattern or modus operandi);[56] and whether the circumstances of occurrence of the conduct and charged conduct are similar.

81 I should pause to consider the difference between tendency evidence and coincidence evidence, since although they overlap, the two are distinct (albeit they are often conflated). Both seem to be underpinned by the notion that human behaviour occurs in patterns. Hence tendency reasoning carries with it the idea that because a person has acted in a particular way in the past, he or she will act in a particular way, or possess a particular state of mind, in the future. On the other hand, coincidence reasoning uses similarities in behaviour to prove that a person was responsible for it.

82 There is a considerable and ongoing controversy as to the precise reach of both s 97 and s 98. It seems plain enough that they cover the field to the exclusion of the common law.[57] Whether they in all cases cover the same territory as was embraced by the common law similar fact rule, or that of the former s 398A of the Crimes Act 1958, remains unclear. What can be said with certainty is that s 101(2) departs from the common law requirement that there be no reasonable view of the evidence available which is consistent with the innocence of the accused.[58] And it should also be noted that in CGL[59] it was held that the same approach to assuming probative value should be adopted as was adopted by this Court in Papamitrou[60] under the since repealed s 398A of the Crimes Act 1958.

83 With respect to tendency, it has been held that is not necessary for the relevant tendency to be a tendency to commit acts closely similar to those which constitute the crime charged.[61] This Court has also expressed the view - one to which, with respect, I am not immediately attracted - that tendency evidence may be of significant probative value even though it is proved by only a single complainant.[62] In assessing alleged similarities, any aspects of the alleged offending outside the accused's control cannot be treated as relevant similarities.[63] The court must make a decision of law about the reasoning processes that are open to a jury,[64] the relevant question being whether the evidence is capable, to a significant degree, of rationally affecting the assessment by the jury of the probability of the existence of a fact in issue.[65]

84 The position taken in NSW is that in judging probative value in s 97, and for the purposes of s 98, s 101 and s 137, the court generally should not take into account issues of credibility and reliability, but take the evidence at its highest.[66] This Court has, however, in Dupas adopted a different approach, so that reliability is a matter which must be taken into account when the assessing probative value of evidence.[67]

85 In assessing whether there is significant probative value, a trial judge must consider the real possibility of concoction, contamination or innocent infection.[68] In so doing, the judge makes a decision of law about the reasoning processes that would be open to the jury.[69] It has been held that, in the application of s 101(2), the reasonable possibility of concoction or contamination may deprive the evidence of its significant probative value or may result in its significant probative value being substantially outweighed by its prejudicial effect, when considered in the light of other evidence.[70] Where evidence capable of disclosing a tendency on the part of the accused is tendered for that purpose, and is therefore tendency evidence within the meaning of s 97(1), and the prosecution fails to exclude the reasonable possibility of concoction on the part of the proposed witness or witnesses, the evidence should be excluded pursuant to s 101(2) because its probative value is outweighed by its prejudicial effect. Moreover, where the evidence is not tendered for that purpose - so that s 97 and s 101(2) do not apply - it must be excluded.[71]

86 I should also take notice of the manner in which courts have approached relationship and context evidence vis-à-vis s 97 and s 101. It seems that the following distinctions have been drawn.

87 First, courts in NSW have held that evidence that is tendered as relationship evidence - in the sense that it places relevant events in their true context as part of the essential background - is not caught by the provisions of s 97 and s 101.[72] Context evidence of this kind - admitted under the banner of relationship evidence -may be tendered to explain the circumstance of the offence charged, so that a complainant can give a full account and so that his or her description of the appellant's conduct making up the relevant offence would not appear 'out of the blue' to the jury and inexplicable on that account.[73] Such evidence may also assist in explaining the complainant's conduct; for example, why he or she did not complain in a timely manner about the offending.[74] It allows the prosecution, and the complainant, to meet a question which would naturally arise in the minds of the jury. The position that context evidence is not to be regarded as tendency evidence has, however, been questioned in this State. Albeit that the Court was concerned with the since repealed s 398A of the Crimes Act 1958, Charles JA (with whom Winneke P and Buchanan JA agreed) said in FJB:[75]

In the Court of Criminal Appeal of New South Wales, it has been said that where the Crown introduces evidence for the purpose of establishing the relationship between the complainant and the accused, it is not tendency evidence; and that, once admitted for that purpose, the evidence cannot be used as tendency evidence; R v AH.[76] It is not necessary to decide the point in this case, but I would need to be persuaded that evidence which, objectively, tends to show a propensity may nevertheless avoid or lose that quality simply because the Crown asserts that the evidence is introduced for a different purpose. If the evidence tends to establish that propensity, the jury is likely to use it for that purpose regardless of any direction they may be given. See also S v The Queen[77] where his Honour said that when evidence of acts of intercourse other than those charged was admitted, its relevance lay in establishing the relationship between the two persons involved in the commission of the offence or the guilty passion existing between them, 'but it is in truth nothing more than evidence of a propensity on the part of the accused of a sufficiently high degree of relevance as to justify its admission'. But the approach of the Court in AH may well be explained by the wording of ss 97 and 101 of the Evidence Act 1995 (NSW) which are not in the same terms as s 398A. ...

88 Secondly, when tendered to demonstrate the sexual desire of the accused for the complainant, evidence is relationship evidence (and thus immune from the provisions of s 97 and s 101).[78]

89 Thirdly, evidence is not relationship evidence, but is tendency evidence attracting s 97 and s 101, when it supports an inference that the accused not only had a sexual attraction for the complainant, but was prepared to act on it. The apparent rationale which distinguishes the second and third categories is that the mere fact of the sexual attraction of the accused to a particular person does not reveal a tendency to gratify that attraction.

90 Fourthly, where the evidence shows that the accused is sexually attracted towards a small child, it falls within the third category, not the second. Hodgson JA (Grove and Adams JJ agreeing) said in Leonard:[79]

[S]exual feelings of adult males towards young children are considered abnormal, and the ordinary motivational force of sexual feelings referred to in [the second category] cannot easily be kept distinct from a perception that a person having such feelings towards a young child is a particular kind of person who is likely to act on these feelings [engaging the third category]. Thus, evidence in such cases is not like evidence that a person charged with stealing (say) a rare stamp has a keen interest in such stamps, which would not be considered tendency evidence: it is unrealistic to liken evidence linking the ordinary human motivation of sexual feelings to a particular child, to evidence linking the ordinary human motivation of avarice to a particular kind of object such as a rare stamp, because as soon as one suggests that an adult male has sexual feelings towards a young child, one almost inevitably suggests that the person in question is the kind of person who is likely to assault the child.

91 Further, it has been held that so far as evidence of the relationship between the accused and the complainant is admitted to establish the complainant's state of mind bearing on consent, its admissibility is independent of s 97.[80]

92 These distinctions - somewhat fine - are productive of much uncertainty, and therefore much difficulty for trial judges. In a trial for a sexual offence, where many of these concepts may intersect, the task of a trial judge in explaining coherently the use (and non-misuse) of evidence falling within the different categories is an unenviable one, as is the task of a jury of lay persons in comprehending and faithfully applying the required directions.

93 In my opinion, relationship evidence - including context evidence - should be seen for what it is. It is tendency evidence. As such it owes its admissibility to ss 97 and 101 of the Act. Thus, notwithstanding the manner in which distinctions with respect to relationship evidence have been recognised and maintained by courts interstate, a more satisfactory approach would be to treat the admissibility of relationship evidence in the same manner as other tendency evidence. Were such an approach adopted, it might bring some coherence to an otherwise somewhat confused landscape.

94 I turn to the judge's ruling admitting the tendency and coincidence evidence. As will become clear, in my opinion she erred in her approach.

The judge's approach to admissibility was in error

95 There can be no doubt that in determining whether evidence of tendency or coincidence has significant probative value - which is the key to admissibility - a trial judge is required to take into account the possibility of concoction, collaboration or contamination.

96 In PNJ[81] this Court had before it an interlocutory appeal which, among other things, concerned coincidence evidence. Much of the argument before the trial judge had concerned the question whether, in assessing the probative value of the coincidence evidence, he should consider the possibility that the evidence had been concocted or 'contaminated' or 'innocently infected' (this Court using 'contamination' to cover the several possibilities). Maxwell P, Buchanan and Bongiorno JJA left no room for concluding other than that the possibility of contamination bore on the question of significant probative value, and thus admissibility. The Court observed:[82]

It is, in our view, not only appropriate but necessary for a judge to consider whether, on the material before the court, there can be seen to be such a possibility. Whether and to what extent such a possibility affects the probative value of the evidence relied on will be a matter for the judge to decide.

97 In light of PNJ it may readily be seen that the approach to contamination on the admissibility of tendency an coincidence evidence following the enactment of s 398A of the Crimes Act 1958 (and its application as laid down in Best) does not represent the proper approach to such evidence under s 97, s 98 and s 101 of the Evidence Act 2008.

98 PNJ withstood a challenge to its correctness in BSJ,[83] where the Court (Maxwell P, Buchanan and Hansen JJA) said:[84]

[21] The decision in PNJ must, of course, be followed unless we were persuaded that it was 'clearly wrong'.[85] We are not so persuaded. Assuming for present purposes that there is such a general rule - and that is a question currently reserved before a five-member bench of this court - we consider that the issue of concoction is properly viewed as an exception to that rule. Deciding whether there is a 'real chance' that concoction has occurred will ordinarily not involve any assessment of the reliability or credibility of individual witnesses. Rather, it entails a fact-finding exercise, in which the judge will consider what the objective record shows about matters such as relationship, opportunity and motive.[86] These are matters which can properly be assessed by a judge, without usurping the function of the jury.[87]

[22] The probative value of coincidence and tendency evidence lies in the improbability of the complainants' having concocted similar lies. As the High Court explained in Hoch,[88] that probative value is destroyed if it appears that the evidence may in fact have been concocted. It is therefore an issue which is properly addressed when the judge is determining the admissibility of the evidence.

99 In my opinion, where there is a real possibility of contamination - concoction, collusion, unconscious influence and the like - evidence of tendency and coincidence will fall at the threshold, since it will not possess the significant probative value which is necessary to its reception. It will be inadmissible.

100 There was clear evidence in this case of concoction or collusion. That being so, the prosecution - who contended that the tendency and coincidence evidence was admissible - bore the burden of persuading the trial judge that the evidence should be admitted. It is plain, however, that the judge saw the burden of persuasion as resting on the defence. So much seems clear from her remarks when ruling that the material relied upon by defence counsel did 'not suggest to the requisite standard, the collusion, concoctions, conspiracy urged by him'. All the judge was required to ask herself in the circumstances was whether there was a real possibility of collusion or concoction. The prosecution needed to persuade her that there was not. A positive answer to that question, however, should have led to the exclusion of the evidence. The trial judge applied a wrong test. As a result, justice miscarried.

101 But that is not the end of the matter. The fact that the trial judge approached the admission of the evidence incorrectly will not avail the appellant if, despite the judge's error, the evidence nonetheless was admissible. In my view it was not. Put simply, the terms of SC's recantation raised a real possibility of concoction and collaboration such that the evidence of tendency and coincidence flowing from GC and RC lacked the significant probative value. The evidence should have been excluded.

102 Moreover, even without the real possibility of contamination which existed, in my opinion the evidence relied upon - with, perhaps, the exception of the use of the vitamin E cream, and the 'take it to the grave' remark - could not be regarded as possessing significant probative value. It will be remembered that the prosecution relied on the similarity in age of the complainants; the conduct; that the complainants were the appellant's daughters; that the conduct occurred when the mother was away; that the offending occurred in the bedroom; and that the complainants both left home because of the offending. Putting to one side the use of the vitamin E cream, and the 'take it to the grave' remark, none of the other items of evidence relied upon demonstrated the kind of remarkable, distinctive or unusual features which would have justified their admission under s 97, or the kind of similarities necessary for their admission under s 98. They were of a kind described in CGL:[89]

For the most part, what were said to be similarities were features which would characterise almost any allegation of sexual offending against a young girl, or were so non-specific ... as to reveal nothing distinctive about any particular alleged act. They were 'in reality, unremarkable circumstances that are common to sexual offences against children'.[90]

103 However, the use of the vitamin E cream - no matter whether or not it was used to commence the sexual offending - was, absent contamination, sufficiently distinctive to be admitted as tendency or coincidence.

104 So, too, it might be thought, is the 'take it to the grave' remark that was alleged to have accompanied some of the events. It will be remembered, however, that the judge at the first trial had excluded that evidence as coincidence evidence because of the risk that it had been the product of suggestion to RC. Neither the prosecution nor defence had in the present trial sought to traverse this part of the earlier ruling.[91] The evidence of the 'take it to the grave' remark should thus not have been permitted to be used as coincidence evidence in the trial under consideration.

105 In the result, the major portion of the purported tendency and coincidence evidence was wrongly admitted. There has, as a result, been a substantial miscarriage of justice.[92]

Directions on tendency and coincidence evidence - ground 2

107 Directions were given to the jury about tendency and coincidence evidence, and about uncharged sexual acts and other acts of misconduct by the appellant on a number of occasions.

108 As now formulated, the second ground of appeal relating to conviction impugns the directions given to the jury in a number of respects.

109 In order to understand the appellant's submissions, it is necessary that I set out the directions given somewhat more fully than might ordinarily be desirable.

Directions during the trial concerning the evidence of GC

110 GC's evidence was given by way of a VARE.[93] Immediately after it was played to the jury, the trial judge gave directions to the jury concerning three topics raised in the evidence - other uncharged sexual conduct with GC; the appellant having given GC a pornographic DVD, telling her to watch it; and acts of non-sexual physical violence perpetrated by the appellant on GC. As to the uncharged sexual acts of a general nature, the pornographic DVD and the alleged violence, the judge directed the jury that it was evidence of context. She directed the jury that if they accepted the evidence about 'other occasions' they might use it to place the alleged offences in charges 1 to 8 involving [GC] 'into a complete and realistic context and setting'. The evidence might help the jury to understand [GC's] 'conduct or state of mind at the time of the offences' charged, and why [GC] 'might have submitted to the accused demands or not complain about his alleged offending'. Her Honour also directed that the evidence might go to the appellant's conduct and state of mind at the time of the offences, and 'why he felt able to act in a particularly brazen manner'. It might also help the jury understand the circumstances of the alleged offences, such that the offences did not occur 'out of the blue'. The judge went on to direct that the jury could only use the evidence 'to understand the context of the alleged offences'.

111 The trial judge warned the jury against propensity reasoning, non-substitution and prejudice. She then turned to the evidence of the sexual incidents on the Sydney trip, and gave specific directions relating to the events on that trip concerning tendency, context and relationship, which she was at some pains to distinguish from other evidence of misconduct. The judge told the jury that the prosecution argued that the evidence of what occurred in Sydney showed that the appellant 'had a tendency to act in a particular way, being to sexually assault [GC], his natural daughter, and that when he did that alleged sexual act in Sydney he had a particular state of mind'. The evidence could be used to show 'that he had a sexual interest in his natural daughter [GC]'. Her Honour directed that if the jury accepted the evidence, they could 'infer that [the appellant] had this pattern of behaviour towards [GC]' and that 'it makes it more likely he committed the offences charged'. She also instructed the jury the evidence might be used 'to place the alleged offending in Charges 1 to 8 in a complete and realistic context and setting', in that it may help the jury 'understand [GC's] alleged conduct or state of mind at the time of the alleged offences in Charges 1 to 8, such as why she submitted to his demands or didn't complain about his alleged offending in 1 to 8'. The evidence might also explain the appellant's 'alleged conduct or state of mind at the time of the alleged offences in 1 to 8 such as why he felt he was able to act in a particularly brazen manner towards [GC]'. It may show that the charged conduct did not occur 'out of the blue'. Ultimately, the judge told the jury:[94]

The prosecution has also led that evidence to prove that [the appellant] had a sexual interest in [GC]. If you find that he was sexually attracted to her and was willing to act on that attraction you may use that finding in determining whether he has committed the offences in Charges 1 to 8.

It is important that you only use the evidence for those purposes, two purposes, and if you can infer he had that pattern of behaviour, and I will direct you on inferences, and only if you are satisfied beyond reasonable doubt the Sydney incident occurred and helps to explain the alleged offences in Charges 1 to 8.

Directions during the trial concerning the evidence of RC

112 RC's evidence was also by way of VARE. At the conclusion of that evidence, the trial judge gave directions about the relevance of the appellant's alleged non-sexual physical violence towards RC. She reminded the jury of the directions given with respect to GC's evidence, and told the jury that they could 'use it to place the alleged offences in Charges 9 to 11 inclusive involving [RC] in a complete and realistic context and setting'. The trial judge directed the jury it might explain RC's state of mind, why the appellant believed he could act in such a 'brazen manner' and to show that charges 9 to 11 did not just occur 'out of the blue'. The trial judge cautioned the jury about non-misuse of the evidence, and turned to what she described to the jury as coincidence reasoning. Among other things, she directed as follows:[95]

The prosecution has led evidence that the accused engaged in sexual activities with two of his natural daughters, being [GC] and [RC], in circumstances the prosecution says that were similar. That is, where both were under the ages of 18 when the offending occurred against them. That there was this modus operandi, which is a pattern of conduct really - don't get too bogged down in the terms - of isolating them from others to enable him to commit the offences charged. Of using innocent seeming situations and then behaving, such as asking them about their knowledge of sexual history of events and so on, and then using that as a prelude to the sexual offending against them.

So the prosecution says that there's this pattern of condu_c_t. ...

Now the prosecution argues that the similarities of that evidence from [GC] and [RC] mean ... that it is improbable that the alleged offences in Charges 1 to 11 occurred by coincidence. I remind you [defence counsel] at the start of this trial set out the matters in issue and he was saying well look, you can't use it as the prosecution want you to use it because it's the product of collusion, concoction, it's a set up - you've all heard what he said.

...

So as you'll understand, the prosecution argument is that it is improbable that all these events in Charges 1 to 11 involving both complainants occurred by coincidence. That's the prosecution's submission, with the two complainants.

Instead the prosecution says you can use the unlikelihood of coincidence to draw inferences - and I'll direct you more about inferences later, but the prosecution says you can use the unlikelihood of coincidence to draw inferences, being that the offences alleged in Charges 1 to 11 were committed. Secondly, that it was the accused who committed them. Thirdly, that the accused was acting voluntarily when he committed the offences. Fourthly, the prosecution says you can use the unlikelihood of coincidence to infer that the accused had a particular mental state when he committed the offences and also you can infer that [GC] and [RC], the complainants, have given truthful evidence, says the prosecution. ...

You can only infer that both complainants have given truthful evidence if you're satisfied beyond reasonable doubt that their accounts are so similar that they can't be explained by coincidence. In such a situation you might infer that the only reasonable explanation for the similarities is that each of the complainants, [GC] and [RC], are telling the truth. ...

Now it's for you to determine whether or not [GC] and [RC] were telling the truth, however you may only draw the inference that the prosecution wants you to bring or to draw from the fact that they both gave such similar accounts if you are satisfied beyond reasonable doubt that their accounts were not contaminated in any way, that there wasn't collusion, that there wasn't concoction.

... If you think there's possibility that their evidence was contaminated by concoction or collusion or getting their heads together then you may not draw the inference the prosecution wants you to draw. Remember that while the accused raised that matter of collusion, of concoction through [defence counsel] the onus of proof is on the prosecution at all times to prove that it wasn't concoction and collusion, all right?

113 The trial judge returned to the tendency and coincidence evidence in her Charge to the jury.

114 As to GC, tendency directions were given concerning her allegations of sexual the appellant's sexual misconduct during the Sydney trip. The jury were directed that if they accepted the evidence they might infer that the appellant 'had this pattern of behaviour' towards GC, and that it was more likely that he committed the charged acts. Her Honour told the jury that the evidence could also be used as 'context' evidence and as evidence of 'sexual interest' in GC. The jury could not use the evidence to infer that the appellant 'must' have committed the charged acts, nor substitute the evidence for the evidence of the charged acts, nor fail to consider any of the other evidence as a result of this evidence.

115 With respect to RC, immediately following the tendency direction aimed at GC's evidence, further directions were given concerning RC's evidence of the appellant's violence. The directions were couched in terms of 'uncharged acts' or 'context evidence', and were in similar terms to the directions given following her VARE. In particular, the jury were told they could use the evidence to assist in deciding whether the charged acts were proved. It was implicit in the directions that the use of the expression, 'take it to your grave', was part of the evidence of uncharged acts.

116 Importantly, the judge described both GC's evidence concerning the Sydney trip and RC's evidence of uncharged violence as tendency evidence.

117 A coincidence direction was also given. Thus the jury were directed that the prosecution alleged that the appellant had engaged in sexual activities with both daughters in similar circumstances. The similarities identified were:

• the appellant isolated each of them so as to offend;

• he used seemingly innocent behaviour (such as teaching them about sex) as a prelude to sexual abuse; and

• he had commenced sexual offending against both in a similar way, using vitamin E cream.

118 The judge directed that the prosecution argued that, in light of the similarities, it was improbable that the charged conduct occurred by coincidence. It could be inferred that it was the appellant who committed the offences, and that he did so intentionally and voluntarily. Further, it could be inferred that GC and RC had given truthful evidence. However, an inference that GC and RC were telling the truth could only be drawn if the jury were satisfied that their accounts were so similar they could not be explained by coincidence. Such an inference could not be drawn unless the jury was satisfied beyond reasonable doubt that the accounts were not contaminated in any way or the result of collusion and concoction. The jury were directed that the coincidence and tendency evidence could be used as supporting evidence if they accepted it.

119 Directions were also given about the impermissible use of the evidence described by the judge as tendency and coincidence evidence.

120 Much abbreviated, the appellant submits that the jury should have been directed that coincidence evidence derives its probative value from the unquestionable independence of the several accounts. Consequently, the attention of the jury should have been directed - but was not - to the specific matters which tended to support the reasonable possibility of concoction, collusion or contamination.

121 Criticism was levelled at the fact that the matters of supposed similarity which supported coincidence reasoning were only identified broadly. Moreover, it was submitted that in relation to one matter - the rubbing with vitamin E cream - the judge inaccurately suggested that this was the means by which the appellant commenced the sexual offending against both complainants, when in fact neither GC nor RC made this allegation, and such a suggestion was not borne out by the evidence.

122 Importantly, so it was submitted, the trial judge failed to identify the matters of dissimilarity between the two accounts, including the different ages of the two complainants when abuse commenced and the significantly different conduct in respect of GC. The trial judge failed, it was argued, to direct the jury that in assessing whether there was similarity sufficient to found coincidence reasoning they should consider matters of dissimilarity and also whether the matters of alleged similarity were not merely generic to sexual activity.

123 One matter of distinct complaint was the trial judge's failure to identify matters which should not have been used to support tendency or coincidence reasoning, and in particular, what was arguably the most striking alleged similarity, the use of the expression 'take it to your grave'. As was pointed out, the judge at the first trial had excluded this evidence from the ambit of tendency and coincidence reasoning. Despite this, the use of the expression was referred to frequently in the Charge. The frequency of reference to the expression and its striking nature required that the jury be directed not to consider it in the setting of coincidence.[96]

124 It was also submitted that given GC's inability to recall any specific episode involving the use of vitamin E cream, and the discussion between GC and RC about it, it was incumbent on the judge to direct the jury to exercise care in having regard to that aspect of the allegations in assessing whether coincidence reasoning was open.

125 On the subject of the use which could be made of coincidence reasoning, the judge gave a number of inapt directions which were liable to confuse the jury; in particular, the directions that it could be inferred that the appellant had committed the acts comprising charges 1 to 11 and that they had not occurred by coincidence, and that the appellant had committed the acts voluntarily and intentionally, when the only issue was whether the acts had occurred at all.

126 Finally it was submitted the jury should have been directed that they could not convict unless they could exclude the reasonable possibility of concoction collusion or contamination.

127 It has been held that the warnings which are appropriate about similar fact evidence at common law are also appropriate under the Acts.[97]

128 Once the evidence was admitted, it was necessary for the trial judge to give directions about the use - and non-misuse - of tendency and coincidence evidence, uncharged acts of sexual and other misconduct, and about concoction, collusion and contamination. Specifically, in my opinion the judge was required to give directions on the following topics:

129 Whenever an accused faces multiple counts, or evidence of uncharged acts of sexual impropriety is received, it is necessary to ensure that the accused reaps the benefit of a propensity warning[98] similar to that set out by Callaway JA in Grech.[99] In BJC[100] Byrne AJA discussed the difficulties of reconciling a Grech style propensity warning with a direction as to the use of evidence of uncharged acts. I need not set out what his Honour said, but it underscored the difficulties in explaining these concepts to a jury without injustice to the person accused. In this case, although one might well despair of the chances of any jury (no matter how assiduous) understanding and distinguishing between the multiple directions that must be given when evidence of tendency, coincidence and relationship (including context) is led by the prosecution, in my opinion the judge did give an adequate Grech warning.

130 A judge is also required to direct the jury to consider each count separately in light of the evidence applicable to the particular count under consideration. The judge gave proper directions on this topic.

131 Moreover, a judge is required to instruct a jury that they cannot substitute any uncharged conduct for that contained within a charge so as to convict the accused. This the judge adequately did.

132 Where, as in this case, evidence is said to be cross-admissible as tendency or coincidence evidence, it is important that the jury be given careful directions as to the proper use - and prohibited non-use[101] - of the evidence. The type of directions required will be dictated by the use sought to be made of the evidence. It is thus difficult to identify a 'standard' direction. In Papamitrou[102] it was argued on appeal that the trial judge had failed properly to direct the jury on the use of evidence of several complainants. Winneke P dealt with the arguments (and the Court's answer to them) thus:[103]

[39] The real vice in the directions (or lack of them) given to the jury, so it was submitted, lay in the failure of the trial judge to tell the jury of the 'conditions required to exist' before the jury were entitled to use the evidence of one complainant as support for the evidence of another, or to entitle them to use the evidence of the complainants, if accepted, as bearing upon the objective improbability of the six of them giving the evidence which they gave, if it were untrue. Thus it was contended that the judge, having admitted the evidence on account of its underlying unity' was bound to direct the jury that they could only use the evidence of one if they found that such 'underlying unity' existed. Thus, it was said, the jury should have been directed that they could only use the evidence if they were satisfied that it revealed the necessary 'similarities' or 'unusual features' or 'system or pattern' such that it raised, as a matter of common sense, the objective improbability of the alleged conduct occurring in a manner other than that contended for by the prosecution.

[40] In my opinion, the judge was not bound to give the type of direction to which I have referred in the preceding paragraph. I agree with the submission made by counsel for the respondent in this Court that the matters referred to are criteria of admissibility of the evidence of 'similar fact', and that it is no part of the trial judge's function to invite the jury to 'second guess' his determination that the evidence was relevant and admissible, and probative of facts in issue. It is the relevant purpose for which the evidence is admitted, and not the reasons for determining its admissibility, which should dictate the directions as to the use which the jury is entitled to make of it. If the judge was in error in admitting the evidence then, no doubt, an appellate court will say so and determine, on that basis, whether a miscarriage occurred. However, once the evidence has been admitted as probative of facts in issue, the function of the trial judge is to direct the jury as to the uses to which such evidence can and cannot be put. That is what the trial judge did here. He told the jury, correctly in my view, that (on the assumption that they accepted the evidence as reliable and excluded any possibility of concoction or collusion) they could use it in support of the complainant whose evidence they were considering, or as bearing upon the improbability of six persons telling similar lies. Relevantly, that was the probative force capable of being assigned to the evidence as a whole.[104] However, the judge was also bound to tell the jury that they could not engage in the impermissible use of propensity reasoning; namely that they could not reason from a finding that the accused had committed an offence against the complainant, whose evidence they were considering, that he was therefore the kind of person who was likely to have committed an offence against another. This the judge also did. I am, thus, of the opinion that the judge correctly perceived the purposes for which the evidence of all complainants could, and could not, be used, and adequately instructed the jury as to the use which they could make of that evidence; and the purpose for which they could not use it.[105] For the judge to have instructed the jury that they could only use the evidence of one complainant in support of the evidence of another if they were satisfied that there was an 'underlying unity', or a 'strong similarity', or a 'common pattern or thread' between the evidence of the individual complainants would not only, in my view, have been calculated to mislead the jury; but also would have redounded to the detriment of the applicant. That, no doubt, is why trial counsel for the applicant raised no exception to the content of his Honour's directions. So far as I am aware, directions similar to those given in this case have been given in other cases which this Court has considered,[106] concerning the directions which are appropriate in cases such as this where evidence of several complainants has been admitted pursuant to s.398A Crimes Act. That, of course, is not to say that trial judges should slavishly follow 'standard directions'. Directions should, as I have said, be relevant and appropriate to the issues raised in a particular trial.

133 In each case the necessary directions will be dictated by the use sought to be made of the evidence. Thus, for example, very stringent directions would be required where coincidence evidence in the form of similar fact evidence (eg modus operandi) was relied upon to prove the identity of the perpetrator.[107] It is axiomatic that the directions necessary in any given case will be moulded by the issues in the trial.

134 Virtually the same evidence was in this case relied upon by the prosecution to establish tendency and coincidence. Once the evidence had cleared the obstacles presented by s 97, s 98 and s 101 of the Evidence Act 2008, it was necessary for the trial judge to give directions to the jury that they could not act on the evidence unless satisfied beyond reasonable doubt of the absence of concoction, collusion or contamination. The judge did that (although, as I have said, the evidence relied upon - with the exception of the rubbing of the vitamin E cream - should not in the first place have been admitted for tendency or coincidence purposes).

135 In my opinion, it is clear that at one point the judge conflated distinct concepts. The evidence of what occurred on the Sydney trip was described as 'context', which could be used to show a 'sexual interest' in GC by the appellant. In truth, the evidence was led to show that the appellant had a sexual interest in GC that he was prepared to act upon. As such, the evidence went beyond mere context, which in effect is admitted to provide reasons why the complainant might have submitted, did not complain, that the events were not 'out of the blue', and the like. In the circumstances, however, the directions as to the use and non-misuse of the evidence were not productive of any miscarriage of justice.

136 I doubt, however, that the jury were directed sufficiently to scrutinise the evidence relied upon as tendency to determine whether it demonstrated a pattern of conduct, or possessed an underlying unity, for the appellant to act in a particular way or have a particular state of mind. Nor, in my view, did the jury have their attention focused sufficiently upon not only the similarities, but also the dissimilarities, in the coincidence evidence, to determine whether the evidence was capable of demonstrating improbability of coincidence.

137 Apart from the rubbing of the vitamin E cream, all of the other items of evidence relied upon as tendency and coincidence evidence were insufficiently distinctive properly to be used as such. Further, the 'take it to your grave' comment had been excluded at the first trial, and should not have been permitted to intrude into the trial under consideration as tendency or coincidence.

138 Since the jury were invited to reason impermissibly from the evidence, there has been a substantial miscarriage of justice.

139 It is correct to say, as the respondent points out, that there was no exception by defence counsel. There should have been. But defence counsel had sought to have the relevant evidence excluded; and, in any event, although failure to take an exception presents an obstacle in the way of the appellant, it can never be determinative.

141 Ground 3 concerning conviction, which complains of the failure by the trial judge to disclose the precise terms of a jury note, is bereft of merit.

142 The jury retired to consider its verdict during the afternoon of 5 May 2012.

143 Late on 7 May 2012 the jury sent a note to the learned Judge, asking, 'Do we the jury need to be unanimous either way, guilty or not guilty?', which provoked the simple - and correct - answer, 'Yes', from the trial judge.

144 Immediately upon that question being answered 'Yes' the jury sought ask a further question. The trial judge directed that the jury retire and commit the question to writing.

145 The judge received the question in writing. Without disclosing the terms of the question - beyond indicating that it supposedly disclosed information about how the jury were divided - the judge repeated to the jury that their verdict should be unanimous.

146 Next morning, in discussion with counsel, the trial judge elaborated further on the content of the second question:

'If they are' - they're giving percentages, you know, like X per cent, Y per cent. You know, 'If we're,' you know, percentage. Do you follow what I'm getting at? That's all right, that's easy. 'What do we do? Is that a not guilty verdict?' So therefore I answered 'unanimous means', all right? So that's the question, all right? So I've left out the figure, but now you know a bit more about it, so I'm giving you a chance, because they're not due in till ten ... so therefore, you know, if you want me to say anything to them when they come back at ten o'clock, feel free, but that's why I answered the way I did and now you know a bit more about it, so do you want me to do anything? Do you want time to think about it? Happy with that?

147 Neither counsel took any exception. A verdict of guilty was returned two hours later.

148 The Court has viewed the note. It reads, 'If we are 50/50 on a charge what do we do? Is that a not guilty verdict?'. Thus it may immediately be seen that her Honour's answer to the question - that the jury were require to be unanimous - was entirely correct.

149 Now, however, the appellant claims that justice miscarried as a result of the judge's failure to disclose the precise terms of the note. It is submitted that the failure of the learned trial Judge to disclose the precise terms of the question was a substantial departure from procedural fairness in the circumstances of this case, which has two aspects. First, the jury had already been deliberating two days, and if the note disclosed a substantial division in the jury that matter would have been - so it is argued - relevant to consideration by defence counsel of whether a discharge application should be made. Secondly, there is a real possibility - so it is submitted - that the judge misunderstood the nature of the question. Based on what was disclosed to counsel it is 'reasonably possible' that the jury was not asking a further question about unanimity but a question about the standard of proof. The failure to give counsel access to the precise terms of the question prevented him from being alerted to this issue and from making any submission on it.

151 By its terms, the jury were simply asking a question about unanimity, which the judge answered correctly. In my opinion, the note did not reveal a 'substantial division' which might have provoked an application for discharge. And the suggestion that the jury might have been asking about the standard of proof is - sensibly interpreting the terms of the question - untenable.

152 The circumstances of this case are very different from MJR,[108] where the appellant had been denied procedural fairness, because the judge had been appraised by a jury note of precise voting figures - including a 'statutory majority on several counts - which he did not pass on to counsel. So, too, are the circumstances of this case different from LLW,[109] where the problem that confronted the judge was almost identical to that which was resolved in MJR. In both cases, the Court held that the trial judge's failure to inform counsel of the precise contents of a jury note meant that the appellant had been denied procedural farness, since the judge was in possession of information that was highly relevant to the exercise of his or her discretion to allow a majority verdict to be taken, but counsel was deprived of that information.

153 The appellant submits that HM v R[110] 'now makes it clear that a broader view must be taken of the obligation of a judge to disclose fully the contents of any communication from the jury and that the contents of such communication may have relevance going beyond the issue of whether a majority verdict should be taken'.

154 There are two answers to that submission (accepting for the sake of argument that its underlying premise is correct). First, as I have observed, properly characterised the question in the jury's note was concerned with clarification of the need for unanimity. Secondly, the judge did in effect reveal the essential information contained in the note. She disclosed that a percentage was referred to (although she did not say it was 50/50). Counsel neither sought further information about the supposed percentages, nor sought a discharge of the jury. Presumably neither course was adopted because counsel recognised - from so much of the note as was revealed - that the note was directed to the question of unanimity. Thus it cannot realistically be contended that the appellant was denied procedural fairness.[111]

155 Ground 3 cannot be upheld. In so far as leave to appeal is required with respect to this ground, I would refuse such leave.

156 As I have said, the result in the conviction appeal makes consideration of the sentence appeal strictly unnecessary. I wish, however, to comment on the first ground of appeal against sentence because of the importance of the issue it raises.

157 The two grounds of appeal against sentence assert, first, that the sentencing judge 'erred in imposing a higher sentence than that previously imposed following the first trial' (Ground 1); and, secondly, that the sentence imposed is manifestly excessive (Ground 2).

158 The sentences under consideration were imposed following a retrial. At the earlier trial the appellant had been sentenced to a total effective sentence of nine years' and three months' imprisonment with a non-parole period of seven years and three months, yet following the retrial the judge imposed a total effective sentence of 12 years' and four months' imprisonment with a non-parole period of nine years.

159 The increase of three years and one month on the total effective sentence - an increase of 33 per cent - and one year and nine months on the non-parole period, is remarkable. It was not justified. The sentencing judge was wrong to have effected such a marked increase.

160 In my opinion, the font of the judge's error was the submissions of the prosecutor which, I am in no doubt, should not have been made. The prosecutor sought a higher sentence than that imposed following the first trial. She took the judge through the sentencing remarks of the judge in the first trial in some detail, and relied on several matters in order to persuade the judge that a higher sentence than that first fixed should be imposed. First, the prosecutor submitted that the appellant had run 'a positive defence of conspiracy' in reliance on the evidence of SC, which involved the need to recall GC and RC at the second trial. Secondly, it was submitted that the first judge may not have applied serious sexual offender provisions[112] appropriately, described by the prosecutor in the language of appellate review as 'specific error'. Thirdly, it was argued that the first judge had not referred at all to an aggravating feature, being the failure to use a condom with GC. Fourthly, the appellant had behaved in a 'secretive' fashion, supplying his daughters with cigarettes. Fifthly, the 'take it to the grave' comment was said to be an aggravating feature. Sixthly, the prosecutor submitted that the first sentence was 'too lenient' and 'manifestly inadequate'.

161 Although the judge did not make a positive finding that the sentence passed in the first trial was manifestly inadequate, she thought that she was justified in passing a more severe sentence because of 'her Honour's incorrect reference to serious sexual offender provisions being applicable from Charge 3, specific lack of reference to any aggravating features and the different basis upon which [the] re-trial was conducted'.

162 In Chen[113] the Full Court (Marks, Southwell and Harper JJ) reviewed the authorities[114] bearing upon the circumstances in which a later sentencing judge was justified in passing a sentence greater than that imposed at an earlier trial. The Court expressed its agreement with the observations of Burt CJ in Williams:[115]

In my opinion the trial judge following upon a conviction on a retrial must, when he comes to sentence, exercise his own judgment and his own discretion. He will do that having regard to the offence committed; to the circumstances of its commission; to the antecedents of the convicted person and to all other relevant facts which are personal to him. In addition he will have regard to the sentence imposed upon the first conviction and he will be conscious of the principle, so called, 'that unless there is some strong ground there should not be a disparity between the sentence imposed upon persons convicted on the second occasion after a retrial compared with those that were imposed upon them on the first occasion' (see Leary and Compt (unreported, Court of Criminal Appeal, Western Australia, 18th August 1975, per Jackson CJ)). That principle is based upon policy.

The policy consideration underlying the specification of the upper limit on the sentence is twofold. In the first place, a person whose conviction is tainted in that the first trial was defective to an extent not capable of being saved by the proviso, should not, in fairness, be required to run any risk of suffering a heavier sentence on a new trial as a consequence of exposing on appeal the defective nature of the first trial. It is in the public interest in ensuring orderly and proper administration of the criminal law that defects in trials should be challenged and laid bare on appeal. As a corollary to this, it is wrong that any person should suffer ill founded criminal judgment in consequence of a defective trial, and feel constrained to avoid exposing that defect lest on a new trial a heavier sentence be passed.

In the second place, the passing of a heavier sentence on a new trial could be seen by the convicted person, as well, perhaps, by others in the community at large, as possibly importing some element of retribution by the machinery of criminal justice in consequence of the conviction on the first trial having been successfully overthrown. Any such impression would, of course, be groundless. But, at the same time, it is highly desirable to avoid any possible basis for permitting the operation of the system to be exposed to criticism of such a nature. (see Gilmore (1979) 1 A Crim R 416, at 419 to 420, per Street CJ)

But if having had regard to the first sentence and to the policy considerations to which I have referred, as the trial judge in this case did, and to all other facts relevant to sentence, the sentencing judge is of the opinion that the sentence passed following upon the first conviction was inadequate or inappropriate, then he must act upon that opinion because it is at that point his judgment which is decisive and it is a judgment which he must make and act upon. It would, I think, be wrong for him to say: 'In my judgment the first sentence was altogether inadequate or inappropriate but nevertheless it was a sentence imposed and therefore I will impose it again'.

163 Some of these sentiments were echoed by the High Court in R H McL,[116] which was concerned with the power of an appellate court to increase sentences for remaining convictions when some convictions only are set aside on appeal. Of particular relevance to the instant case, McHugh, Gummow and Hayne JJ observed:[117]

If the appellant is convicted on any count at the re-trial, the sentencing judge will also have to take into account another important factor in the sentencing process. Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a re-trial than he or she received at the original trial. If the sentencing judge at the re-trial thinks that the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion. But an exercise of discretion by a sentencing judge that increases the original sentence given to the accused is necessarily rare. That is because such an increase may be perceived, by the public and the accused, as containing a retributive element imposed because the accused had successfully appealed against his or her earlier conviction or sentence. If the raising of a sentence after a successful appeal became common, it might discourage appeals. Such a result would be contrary to the public interest, for an organised society has a vital interest in the proper administration of its criminal justice system. Rights of appeal are an important means of preventing the perpetuation of error in criminal trials.

164 The sentencing judge made no finding that the sentence first imposed was manifestly inadequate. Rather, she sat in 'appeal' of the first judge's sentence, finding specific error and using such purported error as a springboard for increasing the sentence. Such a course is to be discouraged.

165 It is true that the second trial was run differently from the first. But that is because SC had recanted her testimony from the first trial. There was no justification in sheeting home to the appellant the making of the recantation, or the consequences flowing from it. The judge was wrong to do so.

166 Moreover, a judge at a second trial should be extremely reluctant to look for, and act upon, supposed specific error said to be manifested in the remarks of a prior sentencing judge. Review of claimed specific error is the province of an appellate court, not a judge at first instance. The judge in this case should not have been encouraged by the prosecutor effectively to sit in review of the earlier judge's sentence; and having been so encouraged, the judge should have resisted the temptation to do so.

167 An increase by a second sentencing judge of a sentence first imposed should be rare. The first sentence ordinarily should be regarded as a 'ceiling'. In this case the circumstances did not justify departure from the ordinary rule.

168 Had it been necessary to do so, for the reasons discussed, I would have allowed the sentence appeal and resentenced the appellant to a lesser term.

[1] R v OGD [No 2] [2000] NSWCCA 404; (2000) 50 NSWLR 433, 447 [77] (Simpson J).

[2] BSJ v The Queen [2012] VSCA 93, [29].

[3] Dupas v The Queen (2012) A Crim R 507, 553-6 [165]-[172].

[4] CG v R [2011] VSCA 362.

[5] Crimes Act 1958, s 47A.

[6] Crimes Act 1958, s 44(1).

[7] Crimes Act 1958, s 39(1).

[8] Crimes Act 1958, s 47(1).

[9] Evidence Act 2008, s 97.

[10] Evidence Act 2008, s 98.

[11] This is how the list is designated in the Notice.

[13] CG v R [2011] VSCA 362, [4]-[5].

[14] AE v R [2008] NSWCCA 52, [44] (Bell JA, Hulme and Latham JJ).

[15] DR v R [2011] VSCA 440, [81] (Neave and Hansen JJA, and Beach AJA).

[16] KRI v R [2011] VSCA 127; (2011) 207 A Crim R 552, 559 [33] (Hansen JA, with whom Buchanan and Tate JJA agreed).

[17] The judge also referred obliquely to R v Colby [1999] NSWCCA 261.

[19] R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700, 718 [95] (Spigelman CJ).

[20] Dupas v R [2012] VSCA 328; (2012) 218 A Crim R 507, 524-5 [63] (Warren CJ, Maxwell P, Nettle, Redlich and Bongiorno JJA).

[21] Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461.

[23] R v Best [1998] 4 VR 603.

[26] It was repealed by Statute Law Amendment (Evidence Consequential Provisions) Act 2009 (No. 69/2009), with effect from 1 January 2010.

[28] [1998] 4 VR 603, 607.

[29] Callaway JA made it clear that propensity evidence is not limited to evidence which discloses the commission of other crimes: Ibid 608.

[30] [1991] 2 AC 447.

[31] Ibid 460, 462 (Lord Mackay of Clashfern LC).

[32] [1995] 2 AC 596.

[33] Ibid 604-5, 611, 612, 614, 622, 626.

[35] R v Boardman [1975] AC 421, 444.

[36] Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292, 296-7 (citations omitted; emphasis added).

[37] [1998] 4 VR 603, 611.

[39] See Washer v Western Australia [2007] HCA 48; (2007) 234 CLR 492, 498 [5] (n 18).

[40] R v Chee [1980] VicRp 32; [1980] VR 303 (McInerney, Anderson and Brooking JJ).

1. [41] Ibid 308. See also Director of Public Prosecutions v Kilbourne [1973] AC 729, 757; R v Stephenson [1976] VicRp 34; [1976] VR 376, 380-1; Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024, 1025 [2]; [2002] HCA 31; 190 ALR 370, 371; R v Priest [2002] VSCA 215; (2002) 137 A Crim R 133, 140 [19].

[42] Other aspects of Chee were disapproved of by the High Court in Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580, and the decision was not followed in R v Clune [1995] VICSC 194; [1995] 1 VR 489, but the correctness of this statement of principle remains unchallenged.

[43] Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650, 654 [7] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[44] The Dictionary defines tendency evidence as 'evidence of a kind referred to in subsection 97(1) that a party seeks to have adduced for the purpose referred to in that subsection'.

[45] The Dictionary defines coincidence evidence as 'evidence of a kind referred to in subsection 98(1) that a party seeks to have adduced for the purpose referred to in that subsection'.

[46] Semaan v R [2013] VSCA 134, [36]-[38]. Compare JLS v R (2010) 28 VR 328, 333 [18] (Redlich JA).

[47] Pepsi Seven-Up Bottlers Perth Pty Ltd v Commissioner of Taxation [1995] FCA 1655; (1995) 62 FCR 289, 297 (Hill J); Federal Commissioner of Taxation v Hamersley Iron Pty Ltd (1980) 48 FLR 134, 156-8; (1980) 33 ALR 251, 271-3 (Gobbo J).

[48] R v Lockyer (1996) 89 A Crim R 457, 459.

[49] R v Lock (1997) 91 A Crim R 356, 361.

[50] Ibid. Compare Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51, 63-4 [50]-[53].

[51] ALRC, Evidence - Vol 1, No 26 (Interim), 463 [810].

[52] See also R v AH (1997) 42 NSWLR 702, 709; R v Fordham (1997) 98 A Crim R 359, 370; R v F [2002] NSWCCA 125; (2002) 129 A Crim R 126, 137 [22]; AW v R [2009] NSWCCA 1, [47]; JLS v R (2010) 28 VR 328, 333 [18]; KRI v R [2011] VSCA 127; (2011) 207 A Crim R 552, 558 [28]; Dupas v R [2012] VSCA 328; (2012) 218 A Crim R 507, 550 [154], [2012] VSCA 328, [154].

[53] See Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51, 69 [74].

[54] Compare R v Tektonopulos [1999] VSCA 93; [1999] 2 VR 412, 417-8 [20]-[25].

[55] Semaan v R [2013] VSCA 134, [40].

[56] CGL v DPP [2010] VSCA 26; (2010) 24 VR 486, 495 [30], 497 [40].

[57] R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700.

[58] R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700. On the hearing of an appeal, the High Court revoked special leave to appeal, expressing agreement with Spigelman CJ's construction: [2004] HCA Trans 488.

[59] CGL v DPP [2010] VSCA 26; (2010) 24 VR 486.

[60] R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375.

[61] R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286, 297-298 [38]-[43]; R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75; DSJ v DPP (Cth) [2012] NSWCCA 9; (2012) 215 A Crim R 349, 352 [8]-[9], 361-370 [55]-[97].

[62] JLS v R (2010) 28 VR 328.

[63] PNJ v DPP [2010] VSCA 88; (2010) 27 VR 146, 151 [19]-[20].

[64] R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286, 300 [52].

[65] DAO v R [2011] NSWCCA 63; (2011) 81 NSWLR 568; (2011) 278 ALR 765.

[66] R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228; Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470; DAO v R [2011] NSWCCA 63; (2011) 81 NSWLR 568; (2011) 278 ALR 765. See also KRI v R [2011] VSCA 127; (2011) 207 A Crim R 552, 562-3 [53]-[55] (VSCA).

[67] Dupas v R [2012] VSCA 328; (2012) 218 A Crim R 507, 524-5 [63] (Warren CJ, Maxwell P, Nettle, Redlich and Bongiorno JJA). See also R v XY [2013] NSWCCA 121.

[68] PNJ v DPP [2010] VSCA 88; (2010) 27 VR 146, 152-3 [24]-[28]

[69] R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286, 299 [49]

[70] L v Tasmania [2006] TASSC 59; (2006) 15 Tas R 381, 397 [40].

[71] R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433, 447 [77]; R v Colby [1999] NSWCCA 261, [107]

[72] R v AH (1997) 42 NSWLR 702, 708-9; R v Lock (1997) 91 A Crim R 356; R v Fordham (1997) 98 A Crim R 359, 367; Conway v R [2000] FCA 461; (2000) 98 FCR 204, 233 [97]; R v Toki (No 3) [2000] NSWSC 999; (2000) 116 A Crim R 536, 540-541 [24]-[26] .

[73] Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610, 624 [42].

[74] Steadman v R (No 1) [2013] NSWCCA 55, [10]; Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463, 487 [80].

[75] R v FJB [1999] VSCA 90; [1999] 2 VR 425, 428-9.

[76] (1997) 42 NSWLR 702, 708-9 (Ireland J, with whom Hunt CJ at CL and Levine J agreed).

[77] [1989] HCA 66; (1989) 168 CLR 266, 275 (Dawson J).

[78] R v Leonard [2006] NSWCCA 267; (2006) 67 NSWLR 545, 556 [49]-[52]. See also R v AH (1997) 42 NSWLR 702, 708-9.

[79] R v Leonard [2006] NSWCCA 267; (2006) 67 NSWLR 545, 563 [68].

[80] R v Fordham (1997) 98 A Crim R 359, 368.

[81] PNJ v R [2010] VSCA 88; (2010) 27 VR 146.

[82] Ibid 153 [28]. See also AE v R [2008] NSWCCA 52, [44]. Compare PG v R [2010] VSCA 289, [62].

[83] BSJ v R [2012] VSCA 93.

[85] R v BDX [2009] VSCA 28; (2009) 24 VR 288, 309-14 [125]-[152].

[86] R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433, 445-6 [70], 454 [112].

[87] Hoch v R [1988] HCA 50; (1988) 165 CLR 292, 302-3 ('Hoch').

[89] CGL v DPP [2010] VSCA 26; (2010) 24 VR 486, 495 [31]. See also NAM v R [2010] VSCA 95; RR v R [2011] VSCA 442, [37]-[40].

[90] AE v R [2008] NSWCCA 52,[42] (Bell JA, Hulme and Latham JJ).

[91] Criminal Procedure Act 2009, s 205.

[92] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469; Andelman v R [2013] VSCA 25.

[96] R v Colby [1999] NSWCCA 261, [132].

[97] R v Gee [2000] NSWCCA 198; (2000) 113 A Crim R 376.

[98] In R v DCC [2004] VSCA 230; (2004) 11 VR 129, 131 [2]-[5] Callaway JA made it clear that the question whether a propensity warning is required may arise in four situations. First, where evidence of uncharged acts is admitted as relationship evidence. Secondly, where there are multiple counts but one complainant. Thirdly, where there are multiple counts and more than one complainant, even though the evidence relating to one complainant is not admissible with respect to others. Fourthly, where there are multiple counts and more than one complainant, and the evidence (or some of it) is cross-admissible.

[99] R v Grech [1997] 2 VR 609, 614.

[100] R v BJC [2005] VSCA 154; (2005) 13 VR 407, 420-1 [37]-[40].

[101] R v Dolan [1992] SASC 3638; (1992) 58 SASR 501, 503; R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375, 393 [37].

[102] R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375.

[103] Ibid 393-4 [39]-[40] (emphasis added)

[104] R v Best [1998] 4 VR 603, 618, ll.30 ff.

[105] cf BRS v R [1997] HCA 47; (1997) 191 CLR 275, 301 (Gaudron, J).

[106] cf R v PJO [2001] VSCA 213, [27]-[28] (Buchanan JA); R v ALP [2002] VSCA 210 (18 December 2002) (Eames JA), [96].

[107] R v Tektonopoulos [1999] VSCA 93; [1999] 2 VR 412.

[108] MJR v R (2011) 33 VR 306.

[109] LLW v R [2012] VSCA 54.

[110] [2013] VSCA 100.

[111] Compare HM v R [2013] VSCA 100, [30]-[31], [35]; Nguyen v R [2013] VSCA 65, [18]; LLW v R [2012] VSCA 54, [78]; MJR v R (2011) 33 VR 306, 317 [66].

[112] Sentencing Act 1991, Part 2A (ss 6A-6F).

[113] R v Chen [1993] VicRp 64; [1993] 2 VR 139.

[114] R v Garrett (1978) 18 SASR 308; R v Gilmore (1979) 1 A Crim R 416; R v Williams (1981) 5 A Crim R 81; R v Bedford (1986) 28 A Crim R 311.

[115] R v Williams (1981) 5 A Crim R 81, 83-4.

[116] R H McL v The Queen [2000] HCA 46; (2000) 203 CLR 452.

[117] Ibid 475-6 [71] (citations omitted; emphasis added).