P v R [2002] TASSC 61

Hoch v R [1988] HCA 50; (1988) 165 CLR 292, followed.

Judgment Number: [2002] TASSC 61

1 I agree with the Reasons for Judgment prepared by Evans J and with the orders he proposes.

2 The appellant was indicted to stand trial on four counts of indecently assaulting a girl who I will refer to as "B", one count of indecently assaulting a girl who I will refer to as "K", and four counts of indecently assaulting a girl who I will refer to as "D".

3 At the outset of the appellant's trial, his counsel applied for an order that the indictment be severed and that the appellant be tried on the counts referable to each complainant separately. Ordinarily, where an accused is charged with a number of sexual offences, the charges should not be tried together if the evidence on one count is not admissible on the other counts, Sutton v R [1984] HCA 5; (1983) 152 CLR 528 at 531, De Jesus v R [1986] HCA 65; (1986) 61 ALJR 1 at 3 and Hoch v R [1988] HCA 50; (1988) 165 CLR 292 at 294. When the evidence of each of a number of victims of sexual offences satisfies the common law requirements for the admission of similar fact evidence on the various charges based on the complaints of each victim, before the evidence may be admitted, the trial judge must be satisfied that there is no reasonable possibility that the similarities between their evidence are not the result of concoction, Hoch v R (supra). The concept of concoction is not confined to a combination between the complainants as to their evidence and extends to circumstances in which one complainant concocts evidence after becoming aware of the allegations of another against an accused, BRS v R [1997] HCA 47; (1997) 191 CLR 275 at 301. The focus of an enquiry as to concoction is on the factual (as distinct from theoretical) possibility of concoction, R v O G D (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433 at 447.

4 Following counsel for the appellant's application for the severance of the indictment, the learned trial judge conducted a voir dire, in the course of which B, K and D gave evidence. The learned trial judge was satisfied that there were striking similarities between the evidence of B concerning some of the offences committed against her and the evidence of D as to some of the offences committed against her, the similarities being the assertion that the accused had told both B and D that he wanted to take their temperature before he indecently assaulted them.

5 D gave evidence on the voir dire that shortly after she had been assaulted by the appellant, B's sister, who I will refer to as "R", told D that she, R, had heard of girls complaining that the appellant had touched them in a way that they did not want and R had then asked D whether the appellant had done that to her. D then told R that the appellant had touched her on the breast and the vagina. D said that R did not tell her that the appellant had touched R and that R did not specify how the appellant had touched the girls.

6 The learned trial judge ordered that the count referable to K be severed from the indictment. However, on the basis of the striking similarities between the evidence of B and D and the absence of any evidence raising the possibility that the similarities resulted from concoction, the learned trial judge allowed the trial of the counts in respect of each of B and D to proceed together. No challenge is made by the appellant to the correctness of that decision on the basis of the evidence that was before the learned trial judge when he made it.

7 When D gave evidence in the course of the trial, her evidence in relation to the discussion she had with R which precipitated D disclosing what she said the appellant had done to her differed from the evidence she gave on the voir dire. In substance, D's evidence in the course of the trial was that R had approached her and told her that the appellant had touched R on the naked breast and the vagina, having said that he was taking R's temperature. D said that some time later, R told D that she, R, had lied to D in order to get information from D.

8 D's trial evidence that before she had made any complaint about the appellant's conduct, R had told her that the appellant, having told R that he was taking her temperature, had sexually assaulted R, for the first time raised the possibility that the similarities between the evidence of B and D resulted from what R had said to D. The introduction of this possible means of concoction into the trial did not prompt counsel for the appellant to renew his application for the severance of the indictment. At a later stage in the trial when another aspect of the evidence was the subject of a discussion between the learned trial judge and counsel, counsel for the appellant adverted to D's evidence of her conversation with R and in substance commented that it did not necessarily vitiate what had occurred on the voir dire. The appellant's counsel did not make any application to the trial judge arising from that evidence. With the benefit of hindsight, a renewed application for the severance of the indictment should have been made, coupled with an application for the discharge of the jury. The trial continued to its conclusion. The appellant was convicted of seven counts of indecent assault.

9 The appellant now appeals against these convictions on the basis that he was prejudiced in his defence by reason that the counts in the indictment involving allegations by D ought not to have been tried together with the counts in the indictment involving allegations by B because there was a reasonable possibility that any striking similarities between the evidence of their respective allegations did not possess the requisite degree of probative force to be admissible as similar fact evidence because that evidence was reasonably explicable on the basis of concoction.

10 In my view, the appeal must succeed. Consistent with Hoch, the similar fact evidence of B and D should not have been left to the jury unless there was no reasonable possibility that the similarities between their evidence resulted from concoction. In the course of D's trial evidence, it emerged for the first time that it was possible that the content of her evidence had been concocted to reflect what she had been told by R. Whilst D denied a suggestion put to her that R had put D up to making allegations against the appellant, the possibility that D's evidence had been influenced to the point of concoction by what R said to D was not fully explored or tested and D was not asked any questions about the differences between the evidence she gave on the voir dire about her conversation with R and the evidence she gave on the trial about that conversation. The evidence, so far as it goes, could not support a conclusion that there was no real possibility that D's evidence was the result of concoction. Crown counsel has not submitted otherwise. In the absence of further evidence negativing the possibility of concoction, there was no sufficient basis for the admission of the evidence of B referable to the counts involving her in relation to the counts involving D, and vice versa. As the jury had before it prejudicial evidence which cannot be shown to have been admissible, the appellant has suffered a miscarriage of justice.

11 I would grant the appellant leave to appeal, allow the appeal and set aside the appellant's conviction. I would order a new trial, subject to the possibility that the Crown might choose to proceed on two fresh indictments, severing the charges relating to B from those relating to D, and subject to the alternative possibility that the trial judge might so sever the present indictment.

12 As a postscript, I should mention that the trial of the appellant was conducted prior to the commencement of the Evidence Act 2001 and accordingly the provisions of that Act have no bearing on this appeal.

13 I agree with the reasons of Evans J and the orders he proposes.