2 The main grounds of appeal against conviction arise out of the refusal of the trial judge to sever the counts in relation to each complainant from the counts relating to the other complainants. According to the grounds of appeal, the trial judge erred in refusing to sever the counts and in ruling that the evidence of each complainant was admissible in relation to the counts involving the other complainants. It is also claimed that there has been a miscarriage of justice as a result of all counts being heard together.

3 It was not disputed at the hearing of the appeal that the counts were properly joined in the same information in that they alleged a series of offences of the same or a similar character (Criminal Law Consolidation Act 1935 (the Act) s 278(1)). However, it was argued that the trial judge should have exercised the power conferred by s 278(2) of the Act and directed that there be separate trials in relation to the allegations of each complainant. Section 278(2) provides as follows:

"Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information."

4 The sole ground which was advanced in support of this argument was that a possibility of concoction existed between the various complainants. It was conceded that if there was no possibility of concoction, the evidence given by each complainant was admissible in relation to the evidence given by the other complainants and, in those circumstances, the decision not to sever the counts could not be criticised. The same issue was before the court in Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292. In that case Brennan and Dawson JJ said in their joint judgment (298):

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

5 At all relevant times the appellant was the manager of a suburban bakery. According to the prosecution case he used his position of authority over young female employees to make sexual advances towards them. The alleged offences occurred over the period from 3 March 2000 to 24 December 2000.

6 In order to consider the argument that there was a possibility of concoction between the complainants, it is necessary to have regard to the sequence of events which led to the laying of the charges. The following summary of the allegations and other events is derived principally from an agreed chronology presented to the court on the hearing of the appeal.

7 Complainant A commenced working at the bakery on 3 March 2000. She was sixteen years of age at the time. She alleged that on her first day at work the appellant kissed her on the lips when she was inside a "walk-in" cool room on the premises. According to her allegations, the appellant touched her breasts and put her hand on his penis. He told her not to tell anyone as she may lose her job. This incident formed the basis of the first count in the information.

8 According to A's evidence, she complained to her mother about the appellant's behaviour after returning home from work on the first day. She told her mother that the appellant kissed her and made remarks of a sexual nature to her. She did not tell her mother about the touching of her breasts or the placing of her hand on the appellant's penis. She said she was too embarrassed to relate these details to her mother.

9 A said that about one or two weeks later the appellant told her he wanted her to remove her underwear. He suggested she walk around the shop without underclothing. He said he had a G-string in his pocket. On the same day she saw him standing in the cool room with his trousers down and his penis exposed. She noticed that his pubic hair was shaved. These events formed the basis of the second count, a charge of indecent behaviour.

10 According to the allegations, the appellant put his hand under A's skirt on a subsequent occasion and placed it on her inner thigh. This incident was the subject of the third count.

11 A's mother stated in evidence that her daughter spoke to her on more than one occasion about the appellant's sexual advances. She said the first occasion was within a week of her daughter starting at the bakery, but she did not think it was on the first day of work. A's mother said that, in the same week, her daughter told her that the appellant had tried to get her into the cool room and that he had removed his underpants and walked around the shop with them in his pocket. A's mother also said that her daughter told her the appellant wanted A to take off her underwear.

12 A ceased working at the bakery on 5 April 2000. She said the appellant became difficult after she refused to have sex with him. He was critical of her work and threatened to reduce her hours.

13 A gave evidence that approximately one week after she finished at the bakery she was at the Munno Para Shopping Centre with her cousin, Alison Mannix. She said the appellant approached them and asked them to have sex with him. According to A, he said he would give Alison Mannix a job if she agreed to this proposal. Ms Mannix rejected the appellant's suggestion. In her evidence Ms Mannix said that the appellant had talked to them about sex when he met them at the shopping centre. He said that he would give her employment at the bakery and that they could have sex together.

14 Complainant B commenced working at the bakery on 25 March 2000 which was 11 days before A finished working there. They did not know each other before B commenced employment at the bakery. There were only one or two occasions when A and B worked on the same shift. They met each other through working at the bakery. They said they did not discuss their allegations with each other.

15 B was fourteen years old at the time she commenced working at the bakery. She said that during her employment the appellant touched her legs, breasts and on the inside and outside of her vagina. He also exposed his genitals to her. She said that on one occasion shortly after she commenced working at the bakery she was standing in the cool room and the appellant pulled his pants down to his thighs. He placed B's hand on his penis. He ejaculated. She noticed he was wearing a black G-string and that his pubic area was shaved. These events formed the basis of the fourth count in the information.

16 B said in evidence that on one occasion when she was in the cool room the appellant put his hand inside her pants and inserted a finger into her vagina. This was the incident upon which the fifth count was based.

17 At some time after the incident referred to in the fourth count B left home and stayed for a time with a friend, Nicole Scott, who was a fellow worker at the bakery. Subsequently B returned home but experienced difficulties living with her mother. She then stayed for a period of four days at the appellant's home where the appellant resided with his wife. She said that on the second night she stayed there the appellant approached her and placed a finger or fingers into her vagina. This incident was the subject of the sixth count. It was alleged that on a subsequent occasion while she was staying at the house the appellant placed his fingers inside B's vagina and attempted to insert his penis into her vagina. This incident formed the basis of the seventh count.

18 B then went to live with a foster parent and did not return to work at the bakery.

19 Complainant C was sixteen years of age when she commenced working at the bakery on 22 November 2000. She said that over the next few days the appellant engaged in conversation about sexual matters with her and told her he wanted to sleep with her. He suggested they have sex in the cool room.

20 C said that on 24 December 2000 when she was alone with the appellant at the bakery he pushed her against the cool room door and touched her on the vagina. He also touched her on the breasts and tried to undo her bra. These events form the basis of the eight count. He said they could have sex in the cool room and she should view this as a Christmas present. She refused. She did not return to work while the appellant remained employed at the bakery.

21 C's mother gave evidence at the trial. She said that while her daughter was working at the bakery C told her that the appellant was a "sleeze" and a "scumbag".

22 C complained to Nicole Scott about the appellant's conduct and on 3 January 2001 she reported the appellant's behaviour to the police.

23 A and B denied discussing their allegations with each other. C did not know A or B.

24 Counsel for the appellant did not suggest that there was a reasonable possibility that the three complainants were involved in any discussion with each other with a view to concocting their allegations against the appellant. However, he argued that concoction might have arisen because of certain connections between the complainants which arose by reason of common acquaintances. The argument proceeded along the following lines.

25 Reference has been made to Nicole Scott who worked at the bakery at times when all three complainants worked there. Her mother Dianne Scott was the deputy manager of the bakery. Neither Nicole Scott nor her mother were called as witnesses. I have referred to the fact that B stayed with Nicole Scott for a time when B was working at the bakery. B denied discussing the appellant's conduct with Nicole Scott.

26 C has known Nicole Scott since they were at primary school together. C said that she told Nicole what she alleged the appellant had done to her and Nicole said "Well, as far as I know this isn't the first time". She did not give any further information as to what she meant by her comment. Nicole told C that she should get some advice as to what she should do. C spoke to Mrs Scott and to her own parents. She then went to the police and reported the matter. All this happened on the same day.

27 The next matter relied upon by the appellant's counsel relates to another young girl, Natasha Hanley, who worked at the bakery for two days, namely, 26 and 27 June 2000. On the evening of 27 June 2000 Natasha told her mother that the appellant had asked her if she would have sex with him in the cool room and that she refused. Natasha and her mother went to the police on the same evening and reported the matter. The police took no action because there had been no physical touching by the appellant.

28 On a later occasion, Natasha's father went to the bakery and punched the appellant. The appellant then obtained a restraining order against certain members of the Hanley family.

29 On 12 July Mrs Hanley commenced making some enquiries into the appellant's behaviour. She spoke to B and B's mother. B was reticent about providing details concerning her allegations, but she gave Mrs Hanley and her daughter to understand that the appellant had behaved in a sexually inappropriate way towards her. That same night B went to the police station with Mrs Hanley and her daughter and reported the appellant for the conduct which she said had occurred while she was working at the bakery. B stayed with the Hanley family for a period of approximately six months after the report was made to the police.

30 Mrs Hanley also spoke to A at about the same time. She took a statement from A. A gave some details of her allegations against the appellant but she did not disclose all that she alleged against the appellant. She said she was too embarrassed to reveal the complete details. The Hanleys did not discuss B's allegations with A. Following this meeting the Hanleys had no further contact with A.

31 Natasha Hanley made a complaint concerning the appellant's alleged behaviour towards her daughter to the Human Rights and Equal Opportunity Commission. She received $1,000 compensation for the matters raised in the complaint.

32 In the light of the contents of the complaints made by A and B, it is relevant to note that when the police searched the appellant's home they found four male G-string underpants. Furthermore, the appellant stated in evidence that his pubic hair was shaved over the period in which the offences allegedly occurred.

33 The appellant gave evidence at the trial and denied making approaches of a sexual nature to any of the complainants.

34 The trial judge ruled that the evidence of each complainant was admissible as similar fact evidence in relation to the counts involving the other complainants. In her summing-up she directed the jury that they were entitled to have regard to the pattern of behaviour disclosed by the evidence involving the selection of young girls to work in the bakery and the similarity of the sexual approaches deposed to by each complainant.

35 As the court pointed out in Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 at 295, the probative value of such evidence "lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred". However, it is clear that the value of the evidence for this purpose will be undermined if there is another explanation for the versions of the complainants such as collusion on their part. In a passage from the speech of Lord Wilberforce in R v Boardman [1975] A C 421 at 459 which was quoted with approval by the court in Hoch his Lordship summarised the matter thus:

"This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence. The jury may, therefore, properly be asked to judge whether the right conclusion is that all are true, so that each story is supported by the other(s).

I use the words 'a cause common to the witnesses' to include not only (as in R v Sims [1946] K B 531) the possibility that the witnesses may have invented a story in concert but also the possibility that a similar story may have arisen by a process of infection from media or publicity or simply from fashion. In the sexual field, and in others, this may be a real possibility: something much more than mere similarity and absence of proved conspiracy is needed if this evidence is to be allowed. This is well illustrated by Reg. v Kilbourne [1973] A C 729 where the judge excluded 'intra group' evidence because of the possibility, as it appeared to him, of collaboration between boys who knew each other well. This is, in my respectful opinion, the right course rather than to admit the evidence unless a case of collaboration or concoction is made out.

If this test is to be applied fairly, much depends in the first place upon the experience and common sense of the judge." (Original emphasis)

36 In Hoch the court explained further the role of the trial judge. It was held that in cases in which the admissibility of similar fact evidence is alleged and the possibility of joint concoction is raised, the trial judge is required to embark on an assessment of the evidence. In their joint judgment Mason CJ, Wilson and Gaudron JJ said (296):

"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. (Original emphasis)

See also B R S v The Queen [1997] HCA 47; (1997) 191 CLR 275 at 298-299.

37 In the joint judgment of Brennan and Dawson JJ in the same case their Honours spoke of an enquiry as to whether there is a "real danger" of concoction (302) and "no real chance that it is the product of a cause common to the witnesses" (304). They continued (304):

"That is not to say that a trial judge should lightly conclude that there is a 'real chance' of conspiracy among complainants in sexual cases, whether children or adults. Contact or antecedent friendship between complainants may be quite insufficient to found such a conclusion. But the circumstances of their contact or friendship may warrant an inquiry whether there was a real chance that they had agreed to concoct their allegations. When such circumstances appear, the judge must inquire."

38 It seems clear that the bare possibility of collusion as opposed to a real or reasonable possibility would not be sufficient to warrant exclusion. In cases in which the complainants are known to each other and have continuous contact with each other it would be difficult to exclude the bare possibility of collusion.

39 The nature of the test to be applied by the trial judge in considering the admissibility of the evidence when the prospect of collusion and concoction is raised has been considered in a number of cases since Hoch. I respectfully agree with the view of the Court of Criminal Appeal of Western Australia that the possibility of concoction, must be understood as a reasonable possibility based upon some factual foundation and not merely fanciful possibility: Hamilton v The Queen (unreported CCA S Ct of WA 4 March 1997 at 10; Stickland v The Queen [2002] WA SCA 339 at [126].

See also Robertson (1997) 91 A Crim R 388; R v Colby [1999] NSW CCA 261 and F [2002] NSWCCA 125; (2002) 129 A Crim R 126.

40 When performing its assessment the court will take into account the nature of the relationship, if any, between the witnesses, the existence or otherwise of motivation to conspire the concocted evidence, the nature and content of the first complaint of each witness and the opportunities for communication between the witnesses (Robertson at 410).

41 I have said that the appellant challenges the decision of the trial judge not to sever the counts. However, a further ground of appeal alleges that there has been a miscarriage of justice as a result of all counts being heard together. In view of this further ground, it was conceded by the Director of Public Prosecutions that, in considering the issue of possible collusion, the court should have regard to the evidence led at the trial and not confine itself to the material before the trial judge when the application for severance was made.

42 It is appropriate at this point to consider the history of the complaints made by the three girls with these considerations in mind.

43 According to A's mother, her daughter's first complaint about the conduct of the appellant was made within a week of A commencing work at the bakery. It is true that she did not provide her mother with the full details, but for present purposes the fact of the complaint is an important consideration. The mother's evidence about the complaint was as follows:

"Q What did A say to you about the accused's behaviour towards her?

1. She told me that he was making advances to her and was coming on to her and things like that.
2. Did she give any examples to you of the types of advances he was making?
3. She said that he was trying to kiss her and things like that, but I told her to go back and tell him that she had a boyfriend.
4. Did she give any other examples of what he was doing?
5. She told me that he was trying to get her to do things that she didn't want to do.
6. Did she say what types of things?
7. Well, she did say that he was trying to get her in the coolroom and things like that.
8. Did she say why he was trying to get her into the coolroom?
9. I can't really remember what she said on that one, no.
10. Did she refer to any item of the accused's clothing?
11. Yes, she did.
12. What did she say?
13. His jocks.
14. What did she say about his jocks?
15. She said that he took them off and put them in his pocket and was walking around the shop with them.
16. Did she say anything about what he had said to her?
17. Yes, she said that he'd like her to take hers off too.
18. You've told us that you had more than one conversation with A about the accused's behaviour. How long after the first conversation was the second conversation?
19. I can't really remember exactly, but it probably would've been - the first week was the first conversation. After that I told her to go back and tell him that she had a boyfriend. She come [sic] back, probably within the same week, and told me that it wasn't making any difference to him."

44 As at the time of the making of this complaint there could be no basis for arguing that there was a possibility of concoction as a result of contact with any other person. And, although A said that eventually the appellant became difficult because of her refusal to have sex with him, there is no evidence of any motive for the fabrication of allegations against the appellant at the time A first spoke to her mother.

45 There is no evidence that A spoke to Nicole Scott about her allegations. The Hanleys spoke to A on 12 July 2000. But, according to the evidence, nothing was said to A about B's allegations. A went to the Hanleys with her mother. It is highly unlikely that this would have been used as an occasion to concoct a false version of events to implicate the appellant. A and Natasha Hanley had made unsolicited complaints to their mothers about the behaviour of the appellant. It appears obvious that Mrs Hanley was concerned enough about the matter to take a statement from A so that it could be used in the application to the Human Rights and Equal Opportunities Commission.

46 A had no further contact with the Hanleys. She did not initiate a complaint to the police. The police became aware of her allegations through Mrs Hanley. They did not take a statement from her until 12 October 2002.

47 It can be inferred from these circumstances that A was not anxious to go to the police with her allegations. She gave her mother details of some of the allegations shortly after the alleged conduct had taken place. In my view, there is no reasonable possibility on the evidence that her version was tainted or affected by outside influence either at the time of her complaint to her mother or subsequently.

48 The opportunity to act collusively simply because A had some contact with Nicole Scott, and Natasha Hanley is not sufficient in my view to give rise to a reasonable possibility of concoction.

49 Both A and B denied discussing their allegations with each other. Natasha Hanley worked at the bakery for only two days and she made a complaint to her mother on the evening of the second day. B told Mrs Hanley that the appellant had touched her sexually and she made a complaint to the police on the day of her conversation with Mrs Hanley. Natasha Hanley had already made her allegations to the police by this time.

50 Whereas Mrs Hanley spoke to both A and B about their allegations, she did so separately. B's mother was present in the Hanley home when B decided to tell Mrs Hanley about what the appellant was alleged to have done to her. B's mother was sceptical of the allegations made by her daughter. She thought the appellant's conduct might have been more extensive than B was prepared to admit. There was evidence of a pre-existing animosity between B and her mother. B's mother was present in the Hanley home when B decided to tell Mrs Hanley about what the appellant allegedly did to her. Although there is some doubt on the evidence as to whether B's mother was present during the actual interview, again it must be said that this visit was an unlikely occasion for concocting allegations against the appellant. There is no evidence to suggest that there was a reasonable possibility that Mrs Hanley in some way orchestrated a concoction of the version or versions of one or both of the complainants A and B. No such allegation was put to Mrs Hanley in evidence. Furthermore, although the ultimate versions of A and B exhibited similarities, there is no indication that one or other gave their statements in parrot fashion so as to fit in with another version.

51 As in the case of A, the mere fact of contact between B and Nicole Scott on the one hand or Natasha Hanley on the other is insufficient to raise the spectre of concoction between them.

52 Mr Barrett QC, for the appellant, suggested there was a motive for B concocting false allegations concerning the appellant. He drew attention to the evidence given by the appellant that, because B was estranged from her mother, he attempted to change B's hours of work so that her mother did not know when she was working. He said that her family started to come to the bakery at all hours and he could not "hide" B any more. He said that after she left his home he went to see her with a staff member and it was suggested to B that it might be better for her own peace of mind if she looked for employment elsewhere. The appellant said that B became upset at not being able to work at the bakery any more.

53 When asked about this incident B said that on the occasion of the appellant's visit to her home he told her there was a girl at the bakery who did not want her working there anymore and the appellant suggested that B stay away for a couple of weeks.

54 It was also put to B in cross-examination that she made false allegations to the police about the appellant in order to keep her mother happy. As I have said, there was evidence that her mother took the view that the appellant's conduct with her daughter was more extensive than her daughter was prepared to admit.

55 Neither of these allegations as to a possible motive were before the trial judge at the time the application was made to sever the counts. No application was made to renew the severance application as the evidence proceeded. The evidence relied upon by the appellant to impute motive on the part of B was contested. In my view the contested evidence as to the factual basis for imputing motive was insufficient to raise concern in relation to collusion.

56 C did not know the Hanleys and had no contact with them. She did not know either A or B. She complained to Nicole Scott and Nicole said that, as far as she knew, "this was not the first time". However Nicole said nothing further. There is nothing in the evidence to support any suggestion that C's version was tainted by collusion and concoction.

57 C agreed in evidence that she asked the appellant if she could work more hours. She denied becoming upset when asking him for more hours. In my view the cross-examination does not take the issue of collusion any further.

58 For the reasons I have given, I am of the view that the trial judge did not err in refusing to sever the counts in the manner contended for by the appellant. Neither at the time of her ruling, nor at the conclusion of the evidence, was there a danger of concoction such that severance was warranted. In my view, the evidence of each complainant was admissible in relation to the counts alleging offences against the other complainants. It follows that this ground of appeal must be dismissed.

Was a warning necessary in relation to B's evidence?

59 The next ground of appeal complains that the trial judge erred in not directing the jury to exercise caution in convicting on the counts alleging offences against B in view of her denial by way of a statutory declaration of any sexual harassment or sexual advance made by the appellant towards her.

60 The making of the statutory declaration arose in the following circumstances. The appellant explained in evidence at the trial that B's mother was creating problems for him by coming to the bakery and making allegations about his conduct towards her daughter. He said that B's brother was also acting in an abusive manner on visits to the bakery.

61 The appellant said he was given advice that he could apply for a restraining order against members of B's family. He said he then sought B's assistance by telling her he was applying for the order and asking if she would be prepared to make a statutory declaration. He said she agreed and the appellant arranged for a blank statutory declaration form to be delivered to her. She returned the form after making the statement and appearing before a Justice of the Peace for the purpose of the formal declaration. The declaration was made on 27 June 2000.

62 B agreed under cross-examination that she had made the statutory declaration. However, she said that the contents were not true. She continued:

"The reason I wrote that was because he told me not to say anything, or do anything, and I was scared to say anything. So I just wrote that he hadn't done anything to me. I don't need to read it because I can remember it. That's when I was in foster care. That's when he came around and told me to do that because he was getting scared and he thought that I would have said something to somebody about it. That's why he kept ringing and asking me."

63 The statutory declaration was the subject of submissions made by the prosecutor and counsel for the appellant in their final addresses to the jury. The prosecutor submitted that B was in a vulnerable position at the time she signed the statement. She was estranged from her mother and in foster care. The prosecutor submitted that B was under the appellant's influence at the time. She was 14 years of age and had stayed at the appellant's home. She wanted her employment at the bakery to continue.

64 The appellant's counsel drew the attention of the jury to the evidence of the appellant that he wanted the statement to support his application for a restraining order. He pointed out that B was given a blank form and she filled it out with some assistance from her foster mother. She took the form to a Justice of the Peace. Defence counsel put to the jury that the contents of the statement were true.

65 The trial judge directed the jury generally on inconsistent statements and the manner in which they were to be approached by the jury. She had this to say on the topic of the statutory declaration:

"He [the appellant] had trouble with B's mother at the bakery and that led to him seeking a restraining order. He said that it was in preparation for that that he obtained the statutory declaration from B denying any sexual interaction and, of course, that is an important part of the defence case. The accused said he gave the blank form to the foster mother and the foster mother made arrangements to take it, once it was filled out, to a Justice of the Peace to have it signed. B then brought it into the bakery."

66 The appellant's counsel submitted that these circumstances called for a warning as to the danger of acting on B's evidence. In R v Corrigan (unreported) JN S6684 15 May 1998) the Chief Justice summarised the law relating to warnings in sexual cases. He said (13):

"There is no longer a rule of law or practice that requires a judge to give a warning in the traditional form (set out above) in relation to the evidence of the victim of a sexual offence or in relation to the evidence of a child who gives evidence on oath. That is the result of s 12a and s 34(i)(5) of the Evidence Act. The effect of these provisions appears from what was said by this Court in Question of Law Reserved (No. 1 of 1993) [1993] SASC 3896; (1993) 59 SASR 214 and from Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. The abolition of the general rule requiring a warning in relation to the evidence of a victim of a sexual offence or of a child, leaves untouched the requirement that the judge give a warning whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the particular circumstances of the case: Longman (supra) at 86 Brennan J, Dawson J and Toohey J. On that point I refer also to what King CJ said in Question of Law Reserved (No. 1 of 1993) (supra) at 217 and in R v Pahuja (1987) 49 SASR 191 at 198-199, and to the helpful remarks of the Court of Appeal in R v Miletic [1997] 1 VR 593 at 605-606.

The effect of the decision of the High Court in Longman (supra) is that the nature and strength of the warning that is required, assuming that one is required in the particular circumstances of the case, will itself depend upon the circumstances of the case. There may well be matters that require no more than an appropriate comment from the judge to remind the jury of considerations which are relevant to the evaluation of the evidence. On the other hand, particular circumstances, or the combined effect of a number of matters, may call for a stronger warning, and in particular for a warning in the traditional terms. A matter which may not have been apparent to the jury, using their everyday experience, might well require a warning in the traditional form. As to these matters I refer to Longman (supra) at 90-91 Brennan J, Dawson J and Toohey J; at 100-101 Deane J; at 107-109 McHugh J; see also Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315 in particular at 323-325 Brennan J."

67 In my view, the fact that the denials were made in the statutory declaration did not require a warning of the type discussed in Longman. The statement in the statutory declaration was an important matter for the jury to consider when assessing B's evidence. However, it was not such as to require a warning directed towards avoiding a perceptible risk of miscarriage of justice. The jury were required to consider the making of the statutory declaration against the background of the evidence of the appellant and B as to the circumstances in which it was made. The potential significance of the making of the statement would have been obvious to the jury.

68 It would have been better if the trial judge had reminded the jury of the versions given by the appellant and B as to the circumstances surrounding the making of the statement. However, these matters were dealt with in some detail in the addresses. The trial judge reminded the jury of the importance of this evidence to the defence case. In my view, the failure to give a warning or further directions could not have been productive of a miscarriage of justice.

69 The final ground of appeal against conviction arises out of the circumstances surrounding the separation of the jury in the course of their deliberations.

70 The jurors retired to consider their verdict at 11.35 am on 11 February 2003. They deliberated until 5.35 pm when the trial judge brought them back into the courtroom. She advised the jurors that they could continue their deliberations into the evening and, if necessary, be kept together under the supervision of the Sheriff overnight. However, she also pointed out that she had power to allow the jurors to separate overnight and continue their deliberations in the morning. The jurors were asked to discuss their preference in the matter and, having done so, they indicated that they would prefer to adjourn and separate overnight.

71 The trial judge then ordered that the jurors could separate on condition they returned at 10.00 o'clock the following morning. She went on to say:

"The second matter is this. You have been deliberating now for about six hours and I am conscious of the fact that that is a long time to be in that room talking about these matters which are weighty matters, of course. And it may be that you have reached a stage where you are rather worn out by the process. Traditionally, once a jury retired, they would stay together, even overnight, and simply continue on together deliberating until they reached a verdict or decided they could not, if that was the eventuality. But recently there has been a change to the legislation in this State and juries can separate, even after they have commenced their deliberations, if there are some proper reasons for them to do so."

72 The complaint now made by the appellant is that the jury should have been instructed that, during the adjournment, they were not to confer amongst themselves unless all members of the jury were present. Counsel for the appellant emphasised the fact that this was a crucial stage in the deliberations of the jury and it was essential that all precautions be taken to ensure that individual jurors were not pressed by one or more of their colleagues into reaching a particular decision. It was submitted that there would be an opportunity for this to take place during the adjournment.

73 The power to allow jurors to separate after they have embarked upon their deliberations is of recent origin. Section 55 of the Juries Act 1927 now provides:

"(1) The court may, if it thinks there are proper reasons to do so, permit the jury to separate.

(2) Such a permission may be granted even though the jury has retired to consider its verdict.

(3) When the court permits a jury to separate, it may impose conditions to be complied with by the jurors.1

1 For example -

(a) a condition might be imposed requiring the jurors to reassemble at a specified time and place;

(b) a condition might be imposed prohibiting the jurors from discussing the case with anyone (except another juror) during the separation."

74 Although the footnote refers to examples of conditions which might be imposed, the section does not specify particular directions which are required in every case. Nevertheless, it would be appropriate for a trial judge to impose the conditions which are given as examples in the section. However, the legislation confers an unfettered discretion on the court to impose such conditions as are considered appropriate to the case.

75 In my view, it would be inappropriate for the trial judge to impose a condition requiring any discussion outside the jury room to take place in the presence of all jurors. Discussions of the entire jury should generally take place in the regulated environment of the jury room. On the other hand, it has long been recognised that it would be impractical during adjournments in a trial to prevent discussions within groups of jurors. It is usual for jurors to be warned not to extend those discussions to include persons outside the jury.

76 Jurors who have been sent out to deliberate on their verdict have reached a critical stage in the performance of their duties. It would be appropriate, therefore, for a trial judge to reinforce warnings which may have been given earlier in the case about avoiding outside influence. However, there is no justification for stipulating that, in every case, the judge should impose a condition along the lines suggested by the appellant's counsel. In some cases it might be appropriate for the trial judge to direct that there should be no discussion of the case amongst jurors who are about to adjourn overnight. However, such a direction was not essential in the present case.

78 It follows from what I have said that the appeal against conviction should be dismissed.

79 The appellant was sentenced to imprisonment for two years for the offences against A, four years imprisonment for the offences against B and one year and six months imprisonment for the offence against C. The sentences in relation to A and B were made cumulative and the sentence for the offence against C was ordered to be served concurrently with the sentences for the offences against A and B. This resulted in a total head sentence of six years imprisonment. A non-parole period of three years and six months was imposed.

80 Counsel for the appellant has drawn attention to a factual error in the sentencing remarks. The trial judge stated that at the time the appellant committed the offence against C, he was on bail in relation to the charges against A and B. This was not correct, although the appellant had been spoken to by the police in relation to the allegations made by A and B at the time of the offence against C.

81 The judge did not say that she attached any particular significance to this consideration. It might be said that the appellant's conduct against C demonstrates persistence and determination in the light of his knowledge of the investigation in relation to the offences against A and B. It may be that the persistence and determination would have been more pointed if he had been charged with the other offences and bailed at the time of the offence against C. However, it is my view that this error does not, of itself, justify interference with the sentence.

82 The appellant was 35 years of age at the time of the offences. He was a qualified baker. He had no previous convictions. He is married.

83 It is clear that the appellant embarked on a course of serious offending over a period of approximately 10 months. He used his position of authority to further the systematic sexual advances he made against the young complainants. As the trial judge pointed out, the appellant suggested to A and B that the continuation of their employment was dependent upon their silence concerning his behaviour.

84 In my view the sentence and non-parole period were well within the bounds of the sentencing discretion bearing in mind the number of offences and the circumstances in which they were committed. I am also of the view that the trial judge did not err in refusing to suspend the sentence which was imposed.

86 DEBELLE J. I agree with the reasons of Duggan J. I agree that the appeal should be dismissed.

87 LANDER J. I agree with Duggan J's reasons. I agree the appeal should be dismissed.