1 I agree with Coghlan AJA that the complainants' evidence did not demonstrate underlying unity. It lacked those necessary features as would permit improbability of co-incidence reasoning. The directions given to the jury were insufficient for the reasons explained by Coghlan AJA. I therefore agree that leave to appeal should be granted, the appeal allowed and the convictions quashed. I would order a retrial.

2 The applicant seeks leave to appeal against conviction and sentence on 15 counts of sexual offences against four complainants. He was sentenced to be imprisoned for 14 years, six months and a period of 10 years, six months was fixed before he would be eligible for parole.

3 The conviction related to offending between January 1986 and December 1997.

4 Two convictions related to the complainant, SK; two convictions related to the complainant, JR; ten convictions related to the complainant, FR; and one conviction related to the complainant, ES.

5 Although a number of grounds are set out in the Full Statement of Grounds, only Grounds 4 and 5 were argued before the Court. Leave was sought to add an additional ground.

1. The learned trial judge erred in his directions to the jury concerning the cross-admissibility of the evidence given by the Complainants,
2. The learned trial judge erred in his directions to the jury concerning 'probability reasoning'.

1. The learned trial judge erred in ruling that the evidence of each complainant was cross-admissible.

8 The question of cross-admissibility is at the heart of this application.

9 It is therefore necessary to set out in some detail the evidence from which common features could be distilled. I will first of all deal with the counts on which the applicant was convicted as it relates to each complainant. In summary form, they are as follows:

10 The counts were alleged to have been committed between 1 January and 31 December 1986 when the complainant was about four years of age.

11 SK and her mother were boarders with the applicant and his former wife. One night the applicant baby-sat SK when her mother and his wife were out together. The applicant woke SK telling her that they were basically 'going to play a game'. He took her to his bedroom, put his head between her legs and licked around her vagina. (Count 1)

12 The applicant then tried to insert his penis into her vagina. SK tried to scream and when the applicant put his hand over her mouth, she kicked him and then ran out of the room and house to sleep the night at a neighbour's house. (Count 2)

13 The counts were alleged to have been committed between 10 February 1987 and 1 August 1990 when JR was between four and seven and a half years, although JR said in evidence in chief that she was between eight and 13 years old and in cross-examination between seven and 13 years of age.

14 JR is the niece of the applicant. Her mother and the applicant's first wife are sisters. On an occasion when JR was at her grandparents' home, the applicant followed JR into the bathroom and locked them both in. He then inserted his fingers into and out of her vagina. (Count 8)

15 Following this, the applicant stated that since he had played with JR, she could play with him. He pulled down his pants and put JR's fingers on his penis and moved her hand backwards and forwards for about 15 to 20 minutes. (Count 9)

16 The counts were alleged to have been committed between 1 January 1996 and 18 March 1999 when FR was between nine and 13 years old.

17 At the relevant time being between 1996 and March 2000, FR's mother had an unstable relationship with the applicant. On one occasion when FR was nine years old, she stayed at the applicant's house so that they could return to the local speedway where they had been that day, and water the track. That night she was asked by the applicant if she wanted to sleep on a waterbed. She was then encouraged to take off her nightie and underpants. The applicant said that they were going to play a game and that FR was special. He then proceeded to put his fingers in her vagina and she felt a scraping feeling. (Count 12)

18 He then kissed FR's face, chest and belly. (Count 13)

19 He then said he was going to do something that FR would like and kissed FR around her vagina and licked inside her vagina. (Count 14)

20 The applicant then told FR to open her legs wide and then put his penis into her vagina. (Count 15)

21 Count 18 occurred on an occasion when FR stayed overnight around Christmas 1996 at the applicant's house in Heywood with her three half-sisters. While everyone was asleep, the applicant entered her room, knelt down beside her and rubbed around her vagina over her clothing. (Count 18)

22 On a separate occasion at the applicant's house, whilst the applicant was sitting on a couch in the lounge room, FR was sitting on his knee and the applicant inserted his fingers inside her vagina while her half-sisters were also playing in the room. (Count 19)

23 On 8 January 1997, the applicant drove the complainant to his house in order to pick up a marionette doll. Whilst at the house, he sat FR on the waterbed and said words to the effect, 'This is the last time this game is going to happen' and told her to take her underwear off. He then proceeded to place his fingers insider her vagina for some minutes. (Count 20)

24 When FR was about 10 years old, she visited the panel shop where the applicant worked. He took her left leg out of her corduroy pants and sat her on some tyres. He then used his hand to put his penis into her vagina. (Count 21)

25 Also one night when FR was about 10 years old and at her mother's house in Owen Street, Heywood, while FR was sleeping in a bunk bed, the applicant put his hands underneath her pyjama pants and underwear and then put his fingers inside her vagina whilst she was sleeping on a bunk bed. (Count 22)

26 Following this, the applicant then asked FR to go into the lounge room telling her he wanted her to do something that would make him love her more. He then sat her between his legs and put his penis in her mouth instructing her to suck it like a lollipop. This occurred until he ejaculated. (Count 23)

27 The count was alleged to have been committed between 7 December 1994 and 6 December 1997.

28 SE is the half sister of FR. When living at Portland Road, Heywood, the applicant took SE, who was about six or seven at the time, by the upper right arm to his bedroom. He told her that her grades were bad, then held her by her hair and dragged her until she was lying on her back on the bed. He lifted her nightie, pulled down her underwear and then tried to push his penis into her vagina until such a point when he heard the sound of SE's mother pulling up to the house in her car when the applicant said, 'Get up and get out.' (Count 26)

29 It is convenient to deal with all grounds of appeal together.

30 Before the trial commenced, application was made for severance of the presentment. That application sought separate trials for Counts 1 - 2 (SK); Counts 3 - 11 (JR); and Counts 12 - 26 (FR and ES).

31 The submission was based on the proposition that the evidence was not cross-admissible except in the cases of FR and SE, and it was, therefore, difficult if not impossible for the applicant to receive a fair trial. That argument was largely based on what had been said by the Court of Appeal in R v TJB[1] and on the submission that the evidence of the complainants other than FR and SE was not cross-admissible.

32 The prosecution reply was that there was sufficient 'underlying unity' in each of the cases of each complainant as that expression has been understood in cases such as R v Papamitrou[2] to justify the continued joinder of all counts and to justify cross-admissibility, i.e. the 'unfairness' contemplated in the general terms of s 372(3) of the Crimes Act 1958 did not arise. On 1 July 2009 the learned trial judge refused the application for severance .

33 There were then 26 counts on the presentment, two relating to SK, nine relating to JR, 14 relating to FR and one relating to SE.

34 On 16 July 2009, the presentment was amended to add Counts 27, 28 and 29; they were counts of indecent assault and sexual penetration of a child under 10 years with respect to JR and one count of sexual penetration of a child under the age of 16 years with respect to FR.

35 On 17 July 2009, the applicant was acquitted by direction on Counts 3, 4, 7, 10, 11, 16, 27 and 28 with respect to JR; on Count 16 with respect to FR and on 20 July he was similarly acquitted on Count 17 with respect to FR.

36 The jury acquitted the applicant of Counts 5 and 6 with respect to JR and Counts 24, 25 and 29 with respect to FR.

37 As already indicated, it follows that the material which was before his Honour when he ruled was quite different from the material which ultimately went to the jury.

38 A convenient summary of the allegations contained in the counts which did not go to the jury on which the applicant was acquitted is to be found in the prosecutors opening address:

In relation to [JR]. [JR] was 10 February 1983. When she was growing up she lived with her parents, [WJ] and [PJ]. And [WJ] is now [WS] and you'll be hearing from her at some stage later in the trial, and three siblings. They used to go camping each other with members of their extended family. When she was aged about eight her family went on one such camping trip, and they're accompanied by various extended family members including [JR]'s aunty [PM] and her husband the accused.

At times [JR] would accompany her uncle the accused to collect firewood. On one such occasion whilst out collecting wood, the accused pulled [JR] into some bushes, he lifted her top over her head and undid her training bra. Standing behind her he put his arms around her body and felt her breasts with his hands. And that is Count 3.

He then turned her around to face him and pulled her pants down to her knees. He first rubbed her vagina and then inserted his fingers into her vagina and that is Count 4. He told her 'don't tell anybody or else.'

He then instructed her to put her clothes back on and walked back to the camp with her. [JR] did not tell anyone what had happened. Some time after that incident whilst the accused and [MP] were living at the house in Willunga Street in Portland, another incident occurred. One afternoon [JR] went out to the shed of the property to find the accused working on one of his cars, she was looking at the car when the accused approached her from behind, stood behind her and pushed his body against her. She could feel his penis moving across her bottom, that is Count 5.

This went on for some time until [MP] called out asking what they were doing and whether they were coming inside to have a drink, and at that point the accused backed away and yelled out that they were coming inside.

The later incident took place in Portland, one day when [JR] was at her Nan's house with her family, the accused turned up at the house and announced that he would take the children down the street to the beach. [JR] got into the front seat of the car and the accused two sons [JS] and [JM], and [JS], who is [JR] sister, or one of [JR] sisters, got into the back seat.

On the way to the beach the accused reached across and placed his hand on [JR]'s right leg and rubbed his hand up and down her leg, that is Count 6.

A further incident took place at [JR]'s nan's house. One afternoon [JR] was walking towards the bathroom to go to the toilet when she noticed the accused following her. She walked into the bathroom, the accused followed her in and locked the door behind him. He told her not to worry because nothing bad was going to happen. He approached her and put his hand up under her top and her bra and rubbed her breasts and that is Count 7.

The next occurrence took place in the accused's shed at the same property. [FR] was about nine years old. She was in the shed with the accused when he picked her up, and sat her on top of a pile of tires. He pulled her left leg out of her leggings and underpants that she was wearing. He then pulled down his tracksuit pants, revealing his erect penis. He tried to push his penis into her vagina. He told her to open her legs further, and hurt her as he pushed his penis against her vagina. And that is Count 16. He kissed her on the lips, which is Count 17, he patted her on the back of the head, telling her she was a good girl, and that she was doing the right thing. This went on for some time until the back screen door of the house slammed, and the other children could be heard yelling and fighting. At that point the accused stopped, picked up [JR] quickly, and placed her back on the ground. He pulled up his own pants, and then helped her back into her leggings.

The final incident with [FR] occurred after the accused and [FR] mother had moved to Cobram. They had reconciled and moved into a house together, but later separated, and the accused moved into a house with his boys. [FR] helped the accused to move into that house. At one point, she and the accused stood near a doorway to a bedroom, and looked at some of his old photographs. The accused kissed [FR] on the lips, which is Count 24. She did not kiss him back.

He held her with both arms around her and put his hands down the back of the waist of her pants. By this point, she'd come to realise that what he had been doing to her wasn't right, and she said, 'This isn't going to happen again.'

He said something about loving her, that she was growing up, and that she would soon have 'hair down there', which she took to be a reference to pubic

hair. He told her how beautiful she was, and moved his hands over her breasts, rubbing them, and that is Count 25.

40 The analysis is not aided by reference to Counts 27, 28 and 29 because there was an acquittal by direction on Counts 27 and 28, and there was an acquittal on Count 29. They were the added counts and that material was not relevant to the original ruling.

41 There had been a ground about the circumstances of those counts being added, but since no conviction arose from those counts, that ground was not argued before this Court. It should not be assumed that the procedure adopted in adding those counts is endorsed.

42 From the foregoing, it is clear that the evidence on the counts which went to the jury was vastly different from the evidence considered by his Honour at the time of his ruling. It was viewing the proposed evidence in its totality that his Honour ruled in favour of all the counts being kept together. In his ruling, his Honour said:

Mr Whitchurch, counsel for the accused, submits that in each case the evidence of one complainant is not admissible in respect of another complainant. He contends that there is a risk of unacceptable prejudice in conducting a joint trial. Given that the offences incite strong emotions and revulsion, and strong directions will not cure the risk of prejudice, a fair trial cannot be held.

The prosecution contends for crossadmissibility of evidence between complainants and relies upon the following matters: A, in each case the offences were committed against children. B, in each case the offences were committed against girls. C, in three of the four cases the complainants was a family member. D, in each case the accused stood in a position of authority in relation to the complainant; he was stepfather to two complainants, uncle to one and head of the household to one. E, in each case, the offending was opportunistic in nature, nearly all of the offences appear to have taken place as a result of the accused finding himself alone with one of the complainants. In each case the offending appears to be unplanned and entirely reliant on circumstance. F, in each case, the complainant was molested on at least one occasion at the accused's own property. G, in each case there was at least one offence of penile vaginal contact. H, in three of the four cases, the child was instructed not to tell. [ES] was not so instructed but the circumstances of the offending against her were such that the event ended abruptly when her mother returned home. I, in three of the four cases, there was offending in the accused's own bedroom. J, in two cases, [FR] and [SK], the complainant was told what the accused was doing was 'a game'. K, in two cases, [FR] and [SK], the accused roused the child from her bed as she was falling asleep in order to

commit an offence. L, in two cases, [FR] and [SK], the accused licked the complainant's vagina.

The prosecution submits that these matters taken in combination constitute a pattern of conduct and that a jury would be entitled to consider that the complainants' accounts make it more probable that each of them is telling the truth.

The circumstances in which the preconditions for crossadmissibility are met were fully discussed in the Queen v. Papamitrou [2004] VSCA 12; (2004) 7 VR 375. In that case, the evidence found to be crossadmissible was variously described by President Winneke as containing or reflecting a sufficient connection in time and circumstance, an underlying unity, a common modus operandi or a pattern of conduct. Having had the benefit of written and oral submissions from counsel, I consider that the evidence of each complainant is admissible in support of the evidence of other complainants. At the relevant time, the accused enjoyed a familial or domestic intimacy with the complainants that was a product of his relationships with the mothers of the girls. The accused was the brotherinlaw to the mother of [JR]; he was the partner of the mother of [FR] and [ES]. In the final case, the accused allowed the mother of [SK] to be a domestic boarder in his house.

The jury can find that the accused abused his position of power and authority to gain the trust of and access to the complainants and to opportunistically sexually target them.

Each of the girls was young when they were allegedly violated. The relationship between the accused and the complainants were such that the girls were more likely to comply with the sexual demands of the accused and less likely to complain about his conduct.

I consider that the commonality of this factor provides an underlying unity to this volume of evidence that is probative of the live issue in this trial, that being whether or not the offences were in fact committed by the accused.

I consider the second body of evidence as also crossadmissible in respect of two complainants. Two complainants, [FR] and [SK], state that the accused told them that what he was doing was 'a game'. This is distinctive evidence and its idiosyncratic nature is such as to make one complainant's account admissible in the case of the second complainant.

Having regard to the statutory regime and having concluded that evidence is crossadmissible I consider that a joint trial should be conducted. I am mindful that careful directions will be necessary to ensure a fair trial and that an explicit antipropensity reasoning warning should be given.

43 It can be discerned that his Honour so ruled based on the propositions set out by the Court of Appeal in Papamitrou.

44 It is necessary to set out what was said by Winneke P in that case in some detail:

[26] It is appropriate to consider these grounds together. They are complementary in the sense that the second ground asserts that the discretion to sever miscarried (ground 1) because the trial judge erred in his conclusion that the evidence of the several complainants was 'cross-admissible'. Trial counsel for the applicant had applied to the judge to sever the counts as between the six complainants on the basis that the evidence to be given by each complainant in respect of the counts relating to her was irrelevant to and, thus, inadmissible in support of the counts relating to the other complainants. The trial judge rejected that application, and declined to sever the counts. He did so on the basis that the evidence to be given by each of the complainants of the conduct of the applicant in committing the alleged offences against her bore such a similarity or relationship to the conduct of the applicant alleged by the other complainants as to render the evidence of each 'mutually admissible' in the trials relating to the others. Having reached that conclusion, it became pointless - as he said - to order severance in the manner sought. In so concluding, his Honour's discretionary exercise was consonant with principles laid down in this Court in such cases as R v TJB, R v GAE, R v Glennon. It should, nevertheless, be pointed out that where multiple sexual offences against more than one complainant have been properly joined in the one presentment in accordance with the Presentment Rules contained in Sch VI to the Crimes Act, the discretion to sever, at least in this State, is not necessarily dictated by 'mutual admissibility' or the lack thereof. The amendments to s 372 of the Crimes Act made by the Crimes (Amendment) Act 1997 (to which I have referred in paras [2] and [3] above) were introduced to ensure that trial judges carefully considered whether severance was necessary even where the judge concluded that the evidence of complainants was not 'cross-admissible'. Those amendments introduced sub-s (3AA) and (3AB) into s 372. Subsection (3AA) provides that:

Despite subsection (3) and any rule of law to the contrary, if in accordance with this Act, two or more counts charging sexual offences are joined in the same presentment, it is presumed that those counts are triable together;

and subs (3AB) provides that:

The presumption created by subsection (3AA) is not rebutted merely because evidence on one count is inadmissible on another count.

As this Court pointed out in R v KRA, these amendments make it appropriate that severance of the presentment :

should be approached on the basis that the rule of law or practice which had hitherto existed in this State had been, and was intended to be, modified by these amendments in favour of the more pragmatic approach adopted in the case of R v Christou.

In particular, the Court pointed out that the trial judge should consider whether potential prejudice could be overcome by appropriate directions, bearing in mind that juries can be trusted to heed the directions of the trial judge.

[27] Nevertheless, it seems to me to remain a sound approach in cases such as the present for the trial judge, in exercising the discretion given by s 372(3), to determine whether the evidence of the several complainants is cross-admissible because such a determination will - in most cases - be a powerful factor influencing the discretion. The capacity to ensure a fair trial for the accused must always be the dominant consideration governing the exercise of the discretion; and the more complainants there are whose evidence is not admissible in the trials affecting other complainants, the more difficult it will be for adequate directions to be given by the trial judge to avoid prejudice occurring to the accused. To that extent, the views expressed by the High Court in De Jesus and Sutton (to which I have referred in [3]) will remain influential in this State.

[28] In this application, Mr Priest submitted that the trial judge erred in his conclusion that the evidence of the complainants was cross-admissible, and that, accordingly, his discretion not to sever had miscarried. In its essence, the applicant's contention was that the judge should have ordered separate trials in respect of the counts relating to each complainant. Mr Priest's submission was that there was insufficient 'connecting link' or 'underlying unity' between the evidence of the various complainants to warrant the judge's conclusion that their evidence was mutually admissible. The nature of the conduct alleged was quite different Mr Priest submitted, and a proper appraisal of the evidence should have led his Honour to conclude that the evidence of each complainant fell into its own 'water-tight' compartment. When properly analysed, so Mr Priest submitted, the conduct of the applicant described by the various complainants was quite dissimilar and that the 'similarities' relied upon by the judge demonstrate nothing more than 'rank propensity'. In amplifying this submission, Mr Priest referred in detail to what he submitted were the differences between the allegations by the different complainants, and submitted that there was nothing which could be labelled as a 'modus operandi' or significant similarity of conduct which would render the evidence of one complainant admissible in the notional trials relating to the others. He submitted that 'similar fact' evidence, in any case, will only be received with 'great caution' because the risk of prejudice is high and that, absent the 'similarities' being 'striking', the evidence will usually lack the requisite probative force to render it admissible.

[29] Questions of the type which confronted his Honour in this case are not easy to resolve; the difficulties being compounded by the fact that the trial judge had - at least at the outset of the trial - only the depositions to work from. In this State, the issue is to be determined in accordance with s 398A of the Crimes Act; a provision which was introduced into the legislation by the Crimes (Amendment) Act 1997; the same legislation which introduced the amendments to s 372. Relevantly, for the purposes of this application, s 398A provides as follows:

• (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 the evidence referred to in subsection (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 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.

The purpose and scope of these provisions was considered by this Court in R v Best. That decision makes it clear that the purpose of the section was to displace the 'no other reasonable explanation' test for admissibility of 'propensity evidence' as developed by the High Court in Hoch v R and Pfennig v R in favour of the 'just to admit the evidence despite its prejudicial effect' test enunciated by the House of Lords in Director of Public Prosecutions v P. Evidence which is broadly described as 'propensity evidence' will now be admissible provided that it is 'relevant to facts in issue in a proceeding' and if the court considers that 'in all the circumstances it is just to admit it despite any prejudicial effect it may have ... ' Issues arising as to the reliability of the evidence on account of possible collusion, collaboration or innocent infection are for the jury to decide.

[30] In DPP v P (above), the House of Lords was considering a case which, like this one, concerned the joinder in the one indictment of multiple sexual offences against multiple complainants. The issue was whether it was necessary, in the absence of 'striking similarity' for the charges to be tried separately. The Court of Appeal, following DPP v Boardman (above) held that it was. The House of Lords unanimously reversed that decision. Lord Mackay of Clashfern LC, who gave the leading judgment of the House said (at 460):

As this matter has been left in Reg v Boardman, I am of the opinion that it is not appropriate to single out 'striking similarity' as an essential element in every case in allowing evidence of an offence against one victim to be heard in connection with an allegation against another.

In so concluding, his Lordship went on (at 462):

When a question of the kind raised in this case arises, I consider that the judge must first decide whether there is material upon which a jury would be entitled to conclude that the evidence of one victim about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms, and while these forms may include "striking similarity" in the manner in which the crime is committed, consisting of unusual characteristics in its execution, the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called ... a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle.

(my emphasis)

These principles have been regularly applied in this Court in determining whether a trial judge had correctly exercised his discretion not to sever counts in cases such as this one on the basis that the evidence was admissible in accordance with the provisions of s 398A of the Crimes Act.

[31] Applying the principles to which I have referred, I cannot agree with Mr Priest that his Honour was in error in determining that the evidence of the complainants was mutually admissible. In this case, the issue was whether the offences had been committed; not the identity of the person who had committed them. It was not necessary to demonstrate, as I think Mr Priest was at times submitting, that there were 'striking similarities' between the conduct engaged in by the applicant against each complainant. The trial judge concluded that there was a sufficient connection in time and circumstance between the acts alleged to have been committed against each complainant to render the evidence of one admissible in support of the evidence of the others. In my opinion, his Honour was correct. Although his Honour did not elaborate his reasons for his ruling as extensively as he might have, it is evident from his reasons that he was of the view that there was an 'underlying unity' between the evidence of each complainant to be found in the fact that the applicant was using his place of work, and his position at that place, to solicit and exploit for sexual purposes girls of adolescent age. It is also apparent that his Honour took the view - and I think correctly - that the applicant employed in each case a similar method of seduction and exploitation; namely the use of pretexts to isolate the girls from the company of others and the use of blandishments to induce them into sexual contact with him. The places where the assaults occurred were related to his work environment; namely car parks within that environment, the Tandy 'storage room', the toilets at the Plaza, the vehicle which he drove from his place of work or from work related functions. Whether one describes these factors as providing an 'underlying unity', or a common 'modus operandi' or a 'pattern of conduct' is of little consequence. The 'links' were sufficient, in my view, for his Honour to conclude that the evidence of one victim about what had happened to her was so related to the evidence of other victims about what had happened to them that the evidence of the first victim provided strong enough support to the evidence of the others to make it just to admit it notwithstanding its prejudicial effect. Absent collusion, collaboration or other forms of 'infection' the relationship of time and circumstance and the nature of the evidence of each complainant were such as to render the evidence of each as supportive - and in my view strongly supportive - of the evidence of others. Not only that, but - in my opinion - the support which the evidence of each was capable of giving to the evidence of the others made it just to admit the evidence notwithstanding the prejudicial effect it might have. It is obvious that evidence of this type carries with it a 'prejudice' to the accused. But the 'prejudice' of which s 398A speaks can rarely be a prejudice which flows from evidence which is strongly probative, which this evidence clearly was. Such prejudice is clearly distinct from prejudice flowing from evidence which merely demonstrates that the accused was the kind of person likely to have committed the acts which other complainants were alleging had been committed against them. For the reasons which I have given, his Honour was

entitled to conclude that the evidence of each complainant went beyond evidence of 'mere propensity' as the applicant here submitted.

[32] For the reasons stated, I cannot accept that his Honour was in error in concluding that the evidence of each complaint was probative and admissible in the circumstances. I would accordingly reject grounds 1 and 2.

45 It follows that his Honour sought to apply the correct principles in deciding in favour of refusing the application for severance of counts involving the first two complainants.

46 The question that needs to be asked is to what constitutes underlying unity?

47 The law governing cross-admissibility of evidence of complainants has frequently been considered by the Court of Appeal over the last 15 years.

48 Up until 1997, it was accepted that at common law and by virtue of s 372(3) of the Crimes Act 1958, joinder of counts relating to separate victims of sexual abuse would depend upon cross-admissibility.

49 The Crimes Act 1958 was amended in 1997 to include ss 372(3AA), (3AB) and (3AC).[3] Sub-section 372(3AAA) introduced a presumption that counts relating to sexual offences 'are to be tried together'. Since the general provisions under s 372(3) remained in force, courts did have the power to order severance where an accused 'may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence'.

50 As already observed, such a circumstance would almost invariably arise unless there was cross-admissibility. Sub-section 372(3AB) was enacted to change that position by saying that the presumption in s 372(3AA) is not rebutted because of the absence of cross-admissibility.

51 The Court of Appeal first considered the new provisions in R v TJB.[4] In that case, the court took the view that notwithstanding the operation of ss 372(3AA) and (3B), the absence of cross-admissibility would be a very strong consideration when deciding whether or not a fair trial could be had if counts were not severed.

52 Over the following years, the Court of Appeal looked at a number of cases where the question of cross or mutual admissibility had to be considered. From time to time, language has varied including the use of the expression similar fact, but it has been accepted particularly since Papamitrou that cross-admissibility will depend upon the underlying unity of conduct alleged by different complainants. It was in accordance with those principles that the learned trial judge declined to order severance in this case.

53 The reasoning in Papamitrou is that if there is underlying unity between the accounts it would be improbable in the absence of concoction that such accounts would be due to numerous complainants telling similar lies. It follows that it is necessary for the prosecution to rebut any allegation of concoction. If concoction is not excluded, the probative value of probability evidence must necessarily be slight if not non-existent.

54 The use of probability evidence does not remove the importance of dealing with each count separately. Guilt on a series of counts cannot be determined in some global way just because of the existence of underlying unity. Each count must be considered separately. When considering each count, a jury would be entitled to have regard to any underlying unity they find between the detail of that count and any other counts. Such underlying unity as is found to exist may be used in support of the count then be considered to demonstrate that it is improbable the complainant is telling lies about those matters because other complainants have given similar evidence.

(1) underlying unity between allegations of different complainants;

(2) not reason that either by looking at the evidence as a whole or because of a finding on a particular count that the accused is the type of person who would commit offences such as these.

57 In Papamitrou, there were two principal complaints advanced on behalf of the applicant. The first was that the learned trial judge should have ordered severance, and the second was that the directions to the jury on cross-admissibility were inadequate.

58 The Court of Appeal (Winneke P, Ormiston and Buchanan JJA) refused the application for leave to appeal. The Court found that joinder was appropriate and the directions were satisfactory in the circumstances of the case.

59 The relevant parts of the charge are set out in the judgment of Winneke P, with whom the other members of the Court agreed:

I have already directed you that you must consider each count and the evidence related to it separately. I further direct you - and when I say I direct you, that means that you must follow what I am telling you because it is a direction of law - I further direct you that you must not reason that if the accused committed an offence against one complainant, that he was the kind of person who was likely to have committed an offence against another complainant.

The commission of an offence charged can only be proved by the evidence relating to it. You are entitled to consider that the evidence of all the complainants taken as a whole makes it more probable that each of them is telling the truth. All their evidence may therefore be received by you as mutually supportive of their respective allegations. Here the question of collusion or collaboration between complainants is being raised; that is that they all got together to make up a consistent story.

I direct you that you must be satisfied beyond reasonable doubt that no such factor was operating, that is collusion or collaboration, before you may use the evidence of one complainant as supportive of the evidence of another complainant.[5]

60 In this case the matters said to demonstrate underlying unity which were relied upon by the prosecution and to which his Honour referred in his ruling were very general. They are matters which will almost always be present when an authority figure is alleged to have sexually abused children within a family setting.

61 There were necessarily some features of each of these cases which were common. It is trite to say they each involved the applicant or that each of the complainants was female. There are, however, a number of differences which can be identified. The conduct relating to SK was alleged to have occurred in the calendar year 1986 when SK was between four and five years of age. That relating to the complainant JR was alleged to have occurred between February 1987 and August 1990 when JR was between four and seven years of age.

62 The conduct relating to FR was alleged to have occurred between January 1986 and March 1997 when the complainant was aged between eight and eleven years. The one count against SE was said to have occurred between December 1994 and December 1997 when SE was between five and eight years old.

63 The 'relationship' of the applicant to the complainants has been variously described. The relationships bear some examination. SK and her mother were boarders at the house of the applicant and his then wife. The alleged offending occurred when he was baby-sitting the complainant. In relation to the complainant, JR, the applicant was the complainant's uncle, he being married to her aunt (her mother's sister). In relation to the last two of the complainants, who were half sisters, the applicant was living with their mother at the relevant time and joinder was conceded, as between them but not with the other complainants.

64 The differences, if they be that, between the relationships are clearest between the complainant JR and the other three complainants because she never resided in the same house as the applicant.

65 The directions given by the learned trial judge in relation to cross-admissibility and 'probability reasoning' are said to be defective. The sections of the charge to which the complaint relates is relatively brief and it can be set out.

I turn to the question now of what in law is described as cross admissibility. Members of the jury in this trial you have heard evidence from four complainants. As I have instructed you, you must base your decision solely on the evidence relating to each charged offence and you must find each offence proven beyond reasonable doubt.

The prosecution submits that you should find the accused enjoyed a familial or domestic intimacy with the complainants. It contends this was a product of his relationships with the mothers of the girls. [The applicant] had a sexual relationship with [FD] the mother of two of the complainants, [FR] and [ES]. Also he was married to the sister of [SW] ,the mother of [JR]. [RD] the mother of the complainant [SK] was a boarder in the Willunga Street, Portland home of the accused.

The prosecution case is that the accused abused his position of power and authority to access the complainants and opportunistically sexually target them. It argues that the authority of the accused as an uncle, stepfather or head of the household made the girls more likely to comply with his sexual demands and less likely to complain about his conduct.

I direct you that if you accept the evidence of one complainant beyond reasonable doubt, you may use that complainant's evidence to more readily accept that the accounts of another complainant are so similar that they cannot be explained by coincidence. In such a situation you may infer that the only rational explanation for the similarities is that each of the complainants is telling the truth.

The defence has suggested that the evidence of each complainant is not true. In particular, it is said that the apparent similarities or circumstances possibly arise from contamination or collusion.

Mr Whitchurch argued that [FR] and [ES] had got together and discussed their stories before going to Manangatang and before later going to the police. He also suggested that the police had told [SK] and [JR] that there were other complaints before taking their own statements.

It is for you to determine whether or not the complainants were telling the truth. However, you may only draw an inference from the fact that they all gave similar accounts, if you accept that they did give similar accounts, if you are satisfied beyond reasonable doubt that their accounts were not contaminated in any way. If you think there is a possibility that [FR] and [ES] made up the fact of, or discussed the details of sexual abuse and that the evidence of the other two complainants is also compromised, then you may not draw that inference.

You will recall that both [FR] and [ES] denied discussing the details of their abuse with each other and that there is no evidence of [SK] and [JR] talking to each other or to [FR] or [SE].

In addition, the prosecution argues that in one aspect the accounts of two of the complainants were so similar that they cannot be explained by coincidence. Both [SK] and [FR] said that the accused told them that what he was doing was a game. If you accept this evidence from one complainant, beyond reasonable doubt, you may use it to more readily accept the account of the second complainant, because it is improbable that the two complainants would coincidentally provide such a similar account of the words used by the accused. Again, you can only draw such an inference from the fact that similar accounts were given if you are satisfied beyond reasonable doubt that the accounts were not contaminated in any way. If you think that there is a basis for contamination you may not draw that inference.

You must not use that evidence for any other purpose. In particular, you must not use this evidence to decide that [the applicant] is the kind of person who is likely to have committed the offences charged and to use this conclusion as evidence that he is guilty. That kind of reasoning is prohibited. Your decision must be based only on the evidence given in the case, not on assumptions about the kinds of people who commit crimes.

66 The principle complaint about that charge was that it lacked detail as to what evidence could or could not be used in the analysis and for the need for the jury to be satisfied of underlying unity.

67 Although Winneke P accepted that juries must be warned of the dangers of misuse of evidence, he went on to say:

[38] However, I cannot agree that, in their context, the directions which his Honour gave transgressed those imperatives or were inadequate as has been contended. I say 'in their context' because his Honour's directions were not given in a vacuum. They were given after counsel for the prosecution and counsel for the accused had made lengthy addresses in the course of which the latter had subjected the evidence of the complainants to critical analysis, submitting that the jury should conclude that the evidence of each was unreliable. His Honour had directed the jury, in strong terms, that it was for them to determine the truth and reliability of the evidence of each witness and that, to the extent that it was rejected, it could not be used in their deliberations. It is apparent that it was in this context that his Honour directed the jury that they had to be 'logical and consistent' in applying evidential facts found or not found in respect of individual complainants in determining the strength of support which the evidence of each gave to the evidence of others. This Court has not had access to a transcript of counsels' addresses; but only to the summary made of them by his Honour. It is, however, significant that trial counsel for the applicant (a very experienced counsel in criminal trials) took no exception to the passages in the charge which are now claimed to be inadequate.

[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.

68 It is with that background that the directions set out above come to be considered.

69 Mr Holdenson QC, who appeared on behalf of the applicant, challenged the correctness of the passage:

I direct you that if you accept the evidence of one complainant beyond reasonable doubt, you may use that complainant's evidence to more readily accept that the accounts of another complainant are so similar that they cannot be explained by coincidence. In such a situation you may infer that the only rational explanation for the similarities is that each of the complainants is telling the truth.

70 It was submitted that the direction was not appropriate in that it did not reflect the purpose for the admissibility of the evidence or the circumstances in which it might be used.

71 It was submitted that the strength of probability reasoning is the underlying unity between a number of counts involving different complainants going to the unlikelihood of the account being false. This process of reasoning was not sufficiently explained.

72 There is no doubt that that submission is in accordance with the decided cases.

73 It followed, in the applicant's submission, that the direction given was not appropriate.

74 It was submitted by Mr McArdle QC, counsel for the respondent, that the charge was appropriate and the analysis was predicated upon proof beyond reasonable doubt. It occasioned no disadvantage to the applicant.

75 I am satisfied that the direction did have two vices. Firstly, it did not deal with the evidence in the way it had been admitted. There is no doubt that in his ruling against severance, the learned trial judge ruled that the evidence of the complainants was cross-admissible on the basis of probability reasoning.

76 The direction which was given was not a probability direction. It was probably a type of propensity direction.

77 The line of reasoning invited in the charge is to some degree analogous with the instruction which would be given to a jury in a case where similar fact evidence was being used to establish identity. In such cases, probability reasoning is inappropriate because it does not identify a starting point from which a tribunal of fact may reason. The mere fact that probability reasoning may lead to the conclusion that a series of offences must have been committed by one person is incapable of establishing who that person was. Logic and commonsense dictate that there must be an identified starting point, that is, a finding of guilty (or its equivalent) in relation to a particular course of conduct.[6]

So the prosecution says, this is a way of operating, and if you accept beyond reasonable doubt that the accused operated in a particular way in the way I've described with one or more of the complainants, and you consider that the version of events asserted by another complainant shows a similar way of operating, then you can infer that the only rational explanation for those similarities is that the other complainants are also telling the truth, all right? So it's all focussed around the way he operates.

Of course then the Crown says, well, you know, there's the similarity aspect. If you accept beyond a reasonable doubt one person's evidence then one can look at the issue of drawing inferences from the similarities - the way he works as Mr Lewis put it to you. The difficulty about all that in a case like this is that when you look at the particulars or the offences, there's indecent assault, there's attempting or actually introducing penis into vagina or into mouth, the digital penetration or penile penetration. Those are the charges. Don't get confused with similarity in the context of what the charges are as opposed to the acts. It's the acts and the evidence which are really important, as to how you analyse those.

The small little snippet of - this is again - that's one incident that the prosecution say there's a sort of a coincidence that really goes - it goes to the extent where look you really can't say it's coincidence, it's really what the fact is. We would say that this isn't coincidence, this is simply just the way these respective women have said these things. It is very easy to say things like this. It is very easy to make statements. It might be said that it is difficult and difficult to talk about these things if it happened to you. I am not saying to you ladies and gentlemen that here we have, getting back to [SK], well over 20 years later, 23 years I think.

If you combine that with the aspects of unreliability and the lack of memory, you really are compelled in my submission to look at certainty becoming uncertainty. That uncertainty is the predominant point. You can't be certain about anything really, and that raises the point, there's got to be a very real doubt, a very real doubt about how the Crown puts the case.

Certainly you look at what's said about how things happened, but there's a recalled (indistinct) or it's what happened that you don't know about or what happened that's not talked about. Some things that are obviously, analysed to the Nth degree these days. Everybody is encouraged to think about some of these things. As I said yesterday, this time 40 years ago Neil Armstrong took a step on the moon, and as Barack Obama said today, that footprint is still there. Ideologically, and in a figurative sense, that's absolutely perfect, so poetic, so true; a great thing for man.

But when you're dealing with something like this, it's not just what's said and what's recalled. It's what is not said and it's easy to say, 'I don't remember, I don't remember it' without even attempting to try and remember I would think. So what I submit to you is that there are major holes in the evidence, to the extent that there's doubt which overwhelms this sort of neat construct that's been put before you in the Crown case.

80 Counsel then went onto his argument about delay and unreliability generally.

81 It was clear that the defence really did take issue on the question of whether there was underlying unity.

82 It was a combination of the language used by both the prosecution and defence counsel which became the basis of the charge.

83 At the time his Honour came to charge the jury there were the fifteen counts mentioned above and two counts on which the jury acquitted the applicant. They were Counts 5 and 6. Count 5 related to an incident said to have occurred when JR was staying overnight at the home of the applicant. She went outside the house to convey a message from her aunt to the applicant when he was alleged to have rubbed himself up against her from behind. Her aunt called out and she went inside. The complainant appeared to have made a statement somewhat at odds with her evidence. Count 6 related to an alleged incident in which the applicant indecently assaulted the complainant by rubbing her leg when she was sitting next to him on the bench seat of his motor vehicle which he was driving. Evidence was called to show that the applicant did not drive a car with a front bench seat.

84 The applicant denied all allegations which had been put to him when he gave evidence at the trial and when he was interviewed by the police.

85 When considering the question of underlying unity great difficulties arise in cases such as the present case where there are a small number of counts with respect to some of the complainants and a large number of counts with respect to the applicant.

86 What is necessary in all cases but importantly in cases such as this is that it be explained to the jury what the underlying unity which allows coincidence reasoning is said to be.

87 An examination in some detail of the alleged underlying unity is necessary to enable the jury to decide whether or not there was underlying unity about the conduct of the applicant with respect to his alleged victims.

88 In this case, the common features put to the jury in his Honour's charge were firstly, familial or domestic intimacy with the complainants because of his relationship with the mothers of all the girls.

89 Secondly it was said that the applicant abused his position of power and authority to access and target the complainants.

90 Third it was said that his position of authority was such that the girls would be more likely to submit and less likely to complain.

91 A separate direction was given to the jury about the expressions used in the cases of SK and FR about playing a game.

In addition, the prosecution argues that in one aspect the accounts of two of the complainants were so similar that they cannot be explained by coincidence. Both [SK] and [FR] said that the accused told them that what he was doing was a game. If you accept this evidence from one complainant, beyond reasonable doubt, you may use it to more readily accept the account of the second complainant, because it is improbable that the two complainants would coincidentally provide such a similar account of the words used by the accused. Again, you can only draw such an inference from the fact that similar accounts were given if you are satisfied beyond reasonable doubt that the accounts were not contaminated in any way. If you think that there is a basis for contamination you may not draw that inference.

92 The similarities between the conduct between SK and FR went significantly beyond merely that question.

93 On the one occasion relevant to SK, the applicant told her they were going to play a game. The incident occurred in his bedroom prior to performing oral sex. The applicant told SK that she would enjoy it and he later attempted penile penetration of her vagina.

94 In the first incident described by FR, she was in the applicant's bedroom and was told that she and the applicant were going to play a game. There followed an act of digital penetration followed by the applicant performing oral sex on her. He told her she would enjoy it. He then attempted penile penetration.

95 It seems to me on that analysis there was at least between SK and FR an underlying unity which related to the sole incident described by SK and the first incident described by FR.

96 Such unity had little to do with the relationship between the applicant and the girls and his position of power, mere allegations of sexual abuse of children, could hardly be described as 'unity' or 'system'.[7]

97 In fact the relationship provided a difference between complainants SK and JR themselves and between SK and JR and the complainants JR and SE.

98 There is another aspect of Papamitrou which is important in the factual analysis which lead the court to conclude that there was underlying unity.

99 In that case there were six alleged victims. The fifteen counts were offending alleged to have take place between August 1999 and November 2000 i.e. a period of about 15 months.

100 In the judgment of Winneke P, the following summary is set out:

[7] At all material times, the applicant was the store manager of the Tandy Electronics store at the Greensborough shopping 'Plaza'. It was in that capacity that he came into contact with each of the complainants. KG was a 'work experience' student at the store; RM was a casual employee at the store; KW was a regular visitor to the store - being the girlfriend of another employee (JP) who was the brother of the complainant MP. It was because of that relationship that MP visited the store and was acquainted with the applicant. KH and RS were employed at a 'Reject Shop' which was located next door to the Tandy Store at the Greensborough Plaza. They, too, were visitors to the Tandy Store and, thus, became acquainted with the applicant. He maintained that they regularly came into the Tandy store to talk to his employees.[8]

101 The part that the 'relationship' evidence played in assessing 'underlying unity' in that is clear. It was only when examining that feature in conjunction with each of the counts that the court accepted that refusal of severance was appropriate.

102 The trial judge in this case did not provide a detailed description of what was alleged in the counts. There are both similarities and dissimilarities which emerge from the account given by the various complainants. It does not seem to me that the 'relationship' described which provides as many differences as it does similarities could properly found the basis for 'underlying unity'.

103 While it may have been within a sound exercise of the discretion to rule against severance at the start of the trial, particularly since the joinder between FR and ES had been conceded, that situation had altered significantly by the time of the charge. Save for FR and SK, such detail of the complainants' accounts as then remained did not reveal underlying unity.

104 Separate consideration of the detail relating to FR and SK was capable of providing underlying unity between those two complainants. In relation to the complainant JR and analysis of her evidence that the applicant said to her words to the effect of 'I played with you now you play with me' may be a sufficient feature but that evidence was not adverted to in argument or in his Honour's ruling.

105 Even assuming there was underlying unity, the charge which dealt with cross admissibility was deficient in that it only summarised the way the crown case was put. It was incumbent upon the trial judge to identify the features in each complainant's account which, as a matter of law, were capable of being used to support each other. The charge should have directed the jury that if they were satisfied as to that underlying jury, they may use such evidence in determining whether a complainant's evidence on a particular count was truthful.

106 There is a reluctance in cases similar to the present case to go into detail about the counts but proper instructions about underlying unity can only be given after some detailed analysis of the counts has occurred.

107 The lack of particularity in his Honour's charge left open to the jury that it was appropriate to reason from the relationship evidence, the opportunistic nature of the offending and the position of authority of the applicant that there was an improbability of coincidence on all of the counts. That possibility is unacceptable and has given rise to a miscarriage of justice.

108 That direction which was given with respect to all the complainants and separating with respect to SK and FR is also somewhat at odds with the appropriate direction given about separate consideration of the counts.

109 As I have already said the argument on behalf of the respondent was that the direction which instructed the jury to be satisfied beyond reasonable doubt of one 'complainant' before moving to other complainants was not unfavourable to the applicant because it was predicated upon satisfaction beyond reasonable doubt. However, if the characterisation of the direction as akin to a similar fact direction is correct, the direction could not have been appropriate when expressed in such general terms. The submission does not deal with the difficulty which arises in that no count or counts were identified as being the count or counts which would have provided the starting point with which comparison could be made. As outlined above the instruction given was in the most general terms. It would be necessary for the jury to agree as to the count or counts which could provide a starting point and no such instruction was given to them.

110 The direction in which the jury was instructed 'if you accept the evidence of one complainant beyond reasonable doubt' is also problematic. It is the conduct described in particular counts which must be seen as 'similar' to the conduct in other counts which would underline reasoning of this kind. The broad concept of 'the evidence of one complainant' could not without further explanation be used to support probability reasoning.

111 When dealing with 'the game' analysis as it related to SK and FR, the particularities of the evidence made the analysis more compelling. If that part of the charge alone was being challenged, I would not have concluded that it gave rise to a miscarriage of justice.

112 I do not have the same view about the part of the charge which was expressed in more general terms. It would not have been possible for the jury to conclude that accounts of various complainants were 'so similar as to be beyond coincidence' based upon features of the case such as the relationship each complainant had to the applicant.

113 The difference between coincidence evidence at common law and similar fact evidence is that coincidence evidence at common law depended upon underlying unity or modus operandi, not upon striking similarity. Under the Evidence Act 2008 coincidence evidence pursuant to s 98 of that Act does, in terms, depend upon similarity. Tendency evidence does not, although the view has been taken that

tendency evidence in most cases will only be significantly probative if the evidence between various complainants shows underlying unity.

114 Complaint was also made about the direction on propensity.

You must not use that evidence for any other purpose. In particular, you must not use this evidence to decide that [the applicant] is the kind of person who is likely to have committed the offences charged and to use this conclusion as evidence that he is guilty. That kind of reasoning is prohibited. Your decision must be based only on the evidence given in the case, not on assumptions about the kinds of people who commit crimes.

116 The reference to 'that evidence' was a reference at that point of the charge to the evidence about 'a game'. Mr Holdensen QC submitted that the direction required was one in which the jury were instructed that the finding of guilt in relation to any one complainant or any count could not be used in the way set out.

117 That direction also did not fit well with the earlier direction that satisfaction beyond reasonable doubt as to one complainant could be used for coincidence reasoning.

118 By the end of the trial, it should have been concluded that the evidence of the complainants generally did not have an underlying unity. Moreover when the whole of the charge dealing with cross-admissibility is considered, I am compelled to conclude that the directions did not provide adequate guidance as to underlying unity reasoning and as such gave rise to a miscarriage of justice.

119 I would order a retrial. On any retrial, the evidence will have to be considered afresh in accordance with the provisions of the Evidence Act 2008 and any notices give by the prosecution in relation to tendency or coincidence.

120 I agree with the reasons of Coghlan AJA and I further agree with the orders proposed.

[1] [1998] 4 VR 621 at 630-631.

[2] [2004] VSCA 12; (2004) 7 VR 375 ('Papamitrou').

[3] Those sub-sections have been largely replaced in s 194 of the Criminal Procedure Act 2009

[4] (1998) 4 VR 621.

[5] [2004] VSCA 12; (2004) 7 VR 375, [35]

[6] See, for example, Pfennig v R [1995] HCA 7; (1994-95) 182 CLR 461 where Pfennig had pleaded guilty to the abduction of another boy.

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

[8] [2004] VSCA 12; (2004) 7 VR 375, 7