R v Hakeem [2006] VSC 265

"It is often difficult to decide whether a particular piece of evidence is or is not admissible within these principles. However when in doubt a judge should remember that the admission of similar fact evidence is the exception rather than the rule. To be admissible the evidence must have 'a strong degree of probative force' or 'a really material bearing in the issues to be decided.' It may not be going too far to say that it will be admissible only if it is 'so very relevant that to exclude it would be an affront to commonsense.' The question is thus one of degree, and in answering it the judge must apply experience and commonsense."

34 In R v Sutton,[3] Brennan J, as he then was, pointed out[4] that in order to determine the probative value of the similar fact evidence the particular fact or issue, which the evidence which is to be adduced proves, must be identified.

35 Furthermore, in determining the cogency of that evidence it is not permissible to assume the truth of the fact which is sought to be proved.[5]

36 Subsequent to the decisions of the High Court referred to above, s.398A of the Crimes Act (1958) was introduced. That section states:

"398A Admissibility of propensity evidence

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

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

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

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

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

37 Furthermore, the prosecution relies upon s.372(3AA) of the Crimes Act (1958) which provides that where two or more counts charging sexual offences are joined in the same presentment it is presumed that those counts are triable together. This presumption is not rebutted merely because evidence on one count is inadmissible on another count.[6]

38 The prosecution contends that the presumption applies to the circumstances of the presentment before me, or at least to those offences which are sexual offences as defined by s.372(3AC). In this regard it should be observed that Counts 4, 7, 9, 11, 16, 17, 18, 19, 20, 21, 22 and 36 upon the presentment are not sexual offences as so defined.

39 On the basis of s.373(3AA) the prosecution contends that those sexual offences alleged against the accused are properly joined on the same presentment and should not be severed.

40 That sub-section, which became operational on 1 January 1998, has received the attention of the Court of Appeal on a number of occasions. In R v KRA,[7] Winneke P said:[8]

"One does not need to go to the explanatory memoranda which accompanied the bill introducing these amendments to understand that their purpose was to modify the rule of practice in this State, (indeed in Australia), that allegations of sexual offences committed against different victims should, in general, be separately tried if the evidence in relation to one complainant is not admissible in relation to the others."

"It was the manifest intention of the Parliament to modify this rule of practice by introducing amendments to s.372 of the Crimes Act."

"There will no doubt be some cases where the perceived prejudice to the accused will be so great that the trial judge will consider that no judicial direction will overcome that prejudice, and that circumstance will play a dominant role in the exercise of his discretion, notwithstanding the legislative policy expressed in the amendments to s.372. Each case will necessarily depend upon its own facts, and as in the case of all discretionary exercises rarely will a decision in one case provide a precedent for another."

43 In R v Buckley,[11] the Court of Appeal gave consideration to the purpose of the amendment of s.372. Nettle JA said:[12]

" ... as is shown by the ... decision of this court in R v KRA[13] the result of the enactment ... is that in some cases there may be good reason for a joint trial whether or not there is 'cross-admissibility' of evidence of several complainants.

The amendments to s.372 affected by the enactment of sub-sections 3AA and 3AB were to ensure that trial judges carefully consider whether severance is necessary even where the evidence of complainants is not 'cross admissible'. Furthermore, the cross admissibility of evidence of complainants will in most cases remain a powerful, (although not necessarily dominant) factor influencing the discretion under s.372."

44 In R v Papamitrou,[14] Winneke P said:[15]

"This application brings into focus once again the problems confronted by trial judges in this state when presentments are filed containing multiple counts alleging sexual offences against different victims. There is no doubt that such presentments are properly formed in the sense that they comply with the presentment rules found in the sixth schedule to the Crimes Act 1958. The issue which invariably arises is whether the interests of fairness dictate that the counts should be severed and if not, what directions should be given by the judge to secure a fair trial for the accused. What is fair and proper must depend entirely upon the circumstances of the particular case, and particularly the issues which arise in that case."

45 After giving considering to the effect of the amendments to s.372 of the Crimes Act, Winneke P said:[16]

"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."

46 Accordingly, in consideration of the issue before me it is necessary to determine what evidence is cross admissible pursuant to s.398A of the Crimes Act 1958. It is clear that s.398A permits similar fact evidence to be received only with caution and where it has a "probative force which clearly transcends its prejudicial effect."[17]

47 In R v Rajakaruna,[18] the Court of Appeal examined the admission of similar fact evidence in circumstances whereby the accused had been charged with sexual offences against four street prostitutes over a one-month period. In that decision, Eames JA quoted with approval the following passage from the speech of Lord Mackay of Clashfern in Director of Public Prosecutions v P:[19]

"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 the 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 to 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 a perpetrator is in issue, and the evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary."

48 Likewise those words of Lord Mackay were cited with approval by Winneke P in R v Papamitrou.[20]

49 In R v Tektonopoulos,[21] Winneke P expressed the principles in similar terms as follows:

" ... When the propensity evidence sought to be tendered, whether in sexual cases or not, is in the nature of similar fact evidence, the courts will only receive it with great caution because it is in such circumstances that the risk of prejudice is ordinarily at its highest. This is particularly so in cases where the evidence is tendered for the purpose of establishing the identity of the accused as the offender. In such cases the risk is high that the jury will reason, from the mere fact of established criminal propensity, that the accused is the offender. That is why the courts have insisted in such cases that there should be something in the evidence in the nature of striking similarity with the offences charges, which strongly points to the accused as offender."

50 As stated by Eames JA in Rajakaruna,[22] it is necessary first to identify the fact or facts in issue sought to be proven by the similar fact evidence. There is a danger in simply identifying a number of strikingly similar features in the previous or subsequent, offence and then concluding that, for those reasons, the evidence relating to the other offence is admissible in respect of the present case. Rather, it is necessary to identify just what fact in issue is sought to be established by the proposed similar fact evidence. By focussing on that question, it is then possible to determine whether the probative value, if any, of the similar fact evidence is so strong as to outweigh the prejudicial effect of its admission into evidence.

51 As stated by Eames JA:[23]

"As Brennan, J. and Dawson, J. stated in Hoch v. The Queen[24]: "In assessing the probative force of evidence of similar facts, a judge must keep in mind the issue to which the evidence is relevant. How does the evidence tend to prove that issue?"

The trial judge must closely analyse the issues and the proposed similar fact evidence, first, in determining whether to admit the evidence and, secondly, to determine what directions must be given if the evidence is admitted in the trial for any purpose. Substantive submissions were made to the trial judge by counsel for the accused and also by the prosecutor during which much attention was focussed on the "Schedule of Similarities". That focus, in my view, distracted attention from the capacity or incapacity of that sort of similar fact evidence to bear upon proof of the issues in dispute on each count."

52 Accordingly, I must first identify in each count on the presentment, what fact in issue the Crown seeks to establish by adducing the evidence of other alleged offences against other complainants I must then assess the strength of the probative value (if any), of the similar fact evidence in establishing that fact in issue.

The submissions relating to cross-admissibility of the evidence of six separate incidents

(a) The prosecution submissions

53 The application by the accused for severance of all counts is opposed by the prosecution. First it is contended by Ms Williams of Senior Counsel, who appears for the prosecution, that each offence has a strong connection in relation to time, place and manner of offending, to lead to the logical conclusion that they were committed by the same person. It is true that there is a strong connection in time and place between the offences. The accused came to Australia from the Sudan on 9 February 2005. His parents took up residence in Whitworth Avenue, Springvale on that day. The accused visited his parents daily.

54 On 5 March 2005 the offences against LF took place at approximately 8.15pm in Stephenson Street, Springvale, which is the next street to the south of Whitworth Avenue. On 8 March 2005 his family and the accused took up residence in Wilma Avenue, Dandenong. The offences involving NL took place at a scout hall in Princes Highway at approximately 5.00pm on Thursday 10 March 2005. The scout hall is approximately 500 metres from the place of residence of the accused.

55 The next day, 11 March 2005, at approximately 7.00pm, or soon thereafter, the rape of JK took place at her home in King Street, Dandenong. By my calculation this is approximately 1.25 kilometres from the residence of the accused. Very soon thereafter the assault upon AM took place in Cleeland Street, Dandenong. That took place at a distance of less than a kilometre from the home of JK. Very soon after that the offences involving MS and BM took place at the scout hall. The scout hall is less than 750 metres from both the home of JK and the place of the latter offence against AM.

56 The final group of offences took place the following day, 12 March 2005 at 1.00pm, again at the scout hall.

57 The prosecution accepts that where identity is the fact in issue the test of the admissibility of similar fact evidence is more stringent than it would otherwise be. However, Ms Williams contends that the circumstances in this case are different from other reported cases, in that the accused has pleaded guilty to offences against JK and GH. Thus the accused admits his identity in relation to those offences. Furthermore, as the prosecution understands the position, the accused concedes that he had sexual intercourse with NL at the scout hall on 10 March 2005 but contends that it occurred by way of consent. (It should be observed that there is DNA evidence linking the accused with each of the alleged victims JK, GH and NL.)

58 The prosecution contends that the fact that the accused has pleaded guilty to the rape of JK and GH is a relevant admissible factor in the proof of his identity as the offender in the other incidents the subject of counts on the presentment. Furthermore, the prosecution submits that there are a number of common features in relation to all the offences which lead to the logical conclusion that they were committed by the same person.

59 Dealing first with Counts 1 to 4 on the presentment, (the allegations of indecent assault, rape and false imprisonment of LF,) the prosecution argues that the evidence relating to the other offences with which the accuse is charged is admissible as to the issue of identity.

60 It is submitted that there are a number of features of the offence which are common to the other alleged offences, or at least to some of them. First, LF described her attacker as "black", of African descent, "Sudanese or Somalian". That is a description which is generally consistent with the description given by the relevant victims in each of the other alleged offences.

61 Furthermore, LF described the person who attacked her as being a person wearing "beige three quarter pants". It is argued that this is consistent with the observations made by MS and BM at the time of the attack upon them on Friday 11 March 2005. MS described her attacker as wearing "three quarter camel coloured pants". BM described the pants as "three quarter browny cream cargo pants". Both witnesses stated that they observed blood on the pants. It should be observed that these observations were made soon after the attack upon JK, who, however, described her attacker as wearing jeans.

62 Furthermore, it was argued that in her fifth statement made in December 2005, and after she had seen a news broadcast relating to the arrest of the accused on 15 March 2005, LF said that her attacker said "I Hakeem." LF was asked by her attacker if she would like a cigarette. The Crown relies upon the fact that allegedly the accused took cigarettes from MS and BM, the subject of the armed robbery charge, Count 20.

63 The prosecution relies upon the fact that all of the offences were committed in the area where the accused either lived or visited frequently, and all of them appeared to be random.

64 It is further contended that LF considered that the person who attacked her was drug affected and that there were suggestions that he was drug or alcohol affected at the time of the attack upon MS, and that furthermore, at the time of the attack upon GH he had a spray can in his hand.

65 Furthermore, the prosecution relies upon the fact that the attacker of LF said, "Sorry, sorry", whereas the attacker of JK said, "Sorry mum, sorry mum."

66 Insofar as the prosecution relies upon the cross-admissibility of the evidence of offences upon other victims in relation to the charges involving NL it is submitted by Ms Williams that the fact in issue is the question of consent.

67 It will be recalled that in relation to this matter DNA material from the accused was found inside a condom inside the scout hall. And DNA material from NL and the accused was found on the outside of the condom.

68 Accordingly, the prosecution contends there is no doubt that the accused is a person who had sexual intercourse with NL. But the prosecution contends that the evidence in relation to other charges, relating to other complainants is admissible to prove that NL did not consent to having sexual intercourse with the accused.

69 There is a particular issue about the facts of the attack upon NL which is entirely different from the alleged attack on any other victim. The evidence is that NL and her friend HN were sleeping at the scout hall on the afternoon of 10 March 2005 and saw two dark skinned males enter the scout hall.

70 The two of them then pulled back the lock on the internal door, locking all parties inside. NL described two "black persons"; one was shorter than the other, about five foot six to five foot seven. The other was a little shorter than six foot. The one who was a little shorter than six foot had "one big scar on his face. The scar went around on his cheek, starting from either above or below his mouth and finishing up near his forehead."

71 She describes how the shorter man grabbed her and forced her into the toilets. The taller man then joined her, and the shorter one grabbed her by the throat. The shorter man forced NL's pants down. She knew she was going to be raped so she got a condom out of her wallet and asked the shorter man to put it on. The shorter man, whilst he was raping her, grabbed hold of her bottom lip with his teeth. After this the shorter man vaginally raped her again. He still had the condom on.

72 After that the taller man came in and then NL, knowing she was going to be raped again, pulled another condom out of her wallet and asked him to put it on. She says that he did not do so and she was then vaginally raped.

73 Two issues of significance arise from the statement made by NL. First, although she states that the taller of the two persons did not use a condom, it is apparent that the accused did so, as his DNA was found upon a discarded condom at the premises. Secondly, and of great significance in terms of the issues before me, it is apparent that NL alleges she was raped by a second "black" man. He has never been apprehended.

74 The prosecution contends that the attack upon AM, forming the subject of Count 19, being of assault, is cross admissible and that the evidence of other offences committed upon other victims is admissible in the case of AM to prove the identification of the accused as the person who assaulted AM. It is contended that the matter is so closely connected in time, circumstance and location with the offences alleged against JK, MS and BM, in particular, as to be categorised as a series of offences of a similar nature. The prosecution argues that it is evidence of another offence of a gratuitous act of violence against women.

75 The prosecution contends that the evidence of offences against other complainants is admissible in relation to Counts 20 to 22 relating to the victims MS and BM. It is submitted that the fact in issue in relation to which such evidence is admissible relates to the identification of the accused as the offender. It was argued first that the offences of armed robbery and assault committed against MS and BM took place at the scout hall where offences involving rape occurred one day before against NL and one day after against GH and BE; and thus, all the offences are connected in terms of time and location.

76 It is argued further that both MS and BM describe the offender as a person who has a scar upon his face. This is consistent with the description given by NL and GH and BE in relation to the alleged offences committed against them. Furthermore, the offender was using a bicycle, just as did the offender in the sexual assault upon LF,in the circumstances of MS and BM. Furthermore, in relation to the latter offences, the offender was observed to have blood on his pants, which it is submitted connects him to the attack on JK, which occurred only minutes before.

77 Ms Williams submits that as the issue is that of identification, it "defies common sense that the jury would be deprived of the accused's admission that he committed offences against GH"in the same location, they being offences of similar description. Furthermore, it is contended that in relation to the MS and BM matters, just as with the GH and BE matters, the offender used a razorblade.

(b) The defence submissions

78 Mr Connellan of counsel, who appears for the accused, argues that there is no underlying unity or pattern of conduct, nor is there any demonstrable "signature or striking similarity in behaviour of the offender in relation to each of the alleged offences against separate victims."

79 Insofar as the prosecution seeks to lead evidence that the accused has pleaded guilty to charges of rape against JK and GH, the defence submits that evidence that a person has admitted guilt in relation to some offences cannot amount to evidence of identification in other incidents, and that in any event all the evidence of pleas of guilty can achieve is to establish overwhelming prejudice against the accused.

80 Furthermore, the defence contends that the issue of offences having occurred in close proximity to each other in terms of both time and place,does not establish common features such as to provide a foundation for cross admissibility. Mr Connellan argues that the evidence of blood on the accused's pants observed during the alleged attacks upon MS and BM, which the Crown argues took place immediately after the rape of JK, is not relevant to victims LF, NL or AM and is of overwhelming prejudice.

81 Insofar as the descriptions of the offender as a black man or similar are concerned, it is submitted that there are numerous persons of such description in the Dandenong area. The defence relies upon the fact that the only witnesses who describe a scar, where the issue of identity is present, are MS and BM. It is argued that it is relevant that neither LF or AM gave any evidence of the offender in question having a scar.

82 Mr Connellan submits that the use of a razor blade in relation to the alleged attacks upon MS and BM, as well as GH and BE, is not consistent with the nature of the attack upon JK or AM. The defence submits that the issue of location is not probative, particularly in the context of an area of Melbourne where it is said, and the evidence will be, that there is a large population of black African residents. The defence contends that the accused, by his pleas, admits having been present at the time that the rape of JK and GH took place, and concedes that he was present when intercourse was had with NL. Those complainants, it is submitted by Mr Connellan, are the only ones who have identified the accused by photo board, and it is submitted by him that in the absence of something in the nature of signature or striking similarity, the fact of identification in matters where identification is not disputed, demonstrates the overwhelming prejudice to the accused,without providing anything that can be said to be probative.

83 Insofar as the prosecution relies upon descriptions of "beige three-quarter pants" by complainants and others the defence argues that there are a mixed number of descriptions of pants being worn by the alleged attacker, including jeans by JK, jeans by NL, boxer shorts by BE, and track pants by GH. It is argued that it is only in the incident involving LF, MS and BM that there are consistent descriptions of such clothing and that each of those events is of a different nature, and that in such circumstances impermissible propensity reasoning on the part of the jury is inevitable. The defence contends that the issue of cigarettes is of no consequence and that in any event, in the LF incident, it is said that the offender offered cigarettes. In the MS and BM incident the evidence is that the offender was given cigarettes by the victims.

84 The defence concedes that each of matters relied upon by the prosecution, and referred to above, need not be treated in isolation from the other matters. However, it is argued that even considered separately there are no common features

sufficient to attract the description of "underlying unity pattern of conduct, signature or striking similarity." Furthermore, the alleged common features are not preset in all six incidents, nor relevant to a fact in issue in all six incidents. It is submitted by Mr Connellan that the alleged attack on LF stands alone and has no significant underlying unity, or pattern, with other incidents. It is submitted that the allegations relating to NL, although not admitted, do not raise an issue of identity; the issue is whether the accused had sexual intercourse with NL in circumstances of consent, and that questions of underlying unity, or the lack of consent on other occasions with other complainants, can have no probative value on the question of consent but, rather, raises highly prejudicial issues.

85 Mr Connellan argues that in relation to the issue of the rape of JK and other charges the accused has pleaded guilty to all counts excepts those related to alleged anal penetration and the attempted murder allegation. Mr Connellan contends that these counts, if they are maintained, relate to a limited factual dispute and to the state of mind of the accused, and that there is no sufficient underlying unity nor anything in the way of signature capable of outweighing the overwhelming prejudice to the accused should the offences in question be dealt with jointly with any of the other offences involving other complainants.

86 The defence argues that insofar as the allegation of assault against AM is concerned there is nothing that amounts to signature or to striking similarity, and the same applies to the allegations relating to the victims MS and BM. In relation to the victims GH and BE, the defence argues that the accused has pleaded guilty to some counts, and it is a factual dispute as to whether the other events took place, as alleged by the prosecution, and that there is no sufficient underlying unity, nor anything in the way of signature capable of outweighing the prejudice which will be created to the accused should these offences be dealt with jointly with any of the other offences alleged in relation to other complainants.

Ruling on cross-admissibility

87 In the end the real question in determining the probative force of the evidence of similar facts, is whether the evidence tends to prove the fact in issue in relation to each of the separate alleged offences against different complainants.

Counts 1 to 4 involving allegations of offences of indecent assault, rape and false imprisonment of LF.

88 I turn to Counts 1 to 4 involving allegations of offences of indecent assault, rape and false imprisonment of LF. Turning first to the circumstances related to the alleged offences of rape and false imprisonment of LF, the fact in issue is the identity of the offender. First it should be observed that the circumstances of the alleged offence against LF are quite different from the circumstances of any other alleged offence.

89 The alleged victim is a woman in her mid thirties. She was walking along the street in Springvale at approximately 8.15pm when she observed a person who she later described as being of African descent. The subsequent attack upon her took place in the street. The rape of LF was digital. No weapon was used.

90 Save that the offences alleged against LF were committed by a black man described as an African, and that they took place in Springvale close to the residence of the parents of the accused, as did the subsequent offences in Dandenong, there is nothing to indicate striking similarity with the other offences with which the accused has been charged.

91 The leading of the evidence of the other attacks, which are distinctly different in the circumstances applicable to them, would cause overwhelming prejudice to the accused in relation to the allegations of rape against LF.

92 In relation to the alleged offences against LF there is no strikingly similar feature of those, or the other offences alleged against the accused, which can be said to be of such probative value in relation to the issue of identity, that it outweighs the prejudicial effect of its admission into evidence in a trial of all counts. The counts relating to the alleged offences against LF should be dealt with separately from the other counts on the presentment.

Counts 5 to 7 involving allegations of offences of rape and assault of NL

93 I turn to the chronologically second set of events alleged to have involved NL on 10 March 2005, being allegations of rape and assault. These offences are alleged to have taken place in the scout hall in Princes Highway, Dandenong, as are the offences involving MS on 11 March 2005 and GH on 12 March 2005.

94 It will be recalled that the accused has pleaded guilty to the rape of GH, DNA material belonging to him having been found in her vagina. However, in relation to NL the fact in issue is not identity, but rather consent. It will recalled that DNA material associated with the accused was found on a condom which had been discarded in the scout hall and was found soon after, 10 March 2005.

95 The circumstances of the offences alleged against NL are similar in some ways to the later alleged offence against GH, in that it is a sexual offence committed against a young woman, found in the vicinity of the scout hall, by a man who has been described generally as a black man. However, there is one stark difference, that being that there was present at the time of the alleged assault upon NL an unidentified co-offender whom NL states raped her in company with the accused.

96 The fact that there is evidence of another person, described as a "black African", who is alleged to have committed a rape in the scout hall on 10 March 2005 is not of insignificance in the consideration of whether evidence of other events which occurred there at around the same time is cross-admissible against the accused. The fact that there is evidence of another offender who has committed a rape is particularly significant in terms of the issue of identification of the accused.

97 However, in relation to the NL incident the question is, "Does the evidence that the accused raped other persons, and in particular JK and GH, tend to prove that his admitted sexual intercourse with NL was not by consent?"

98 The question of whether similar fact evidence can be used in relation to the issue of consent in sexual cases has been considered recently by the High Court in Phillips v R.[25] In a joint decision the court said:[26]

"Normally similar fact evidence is used to assist on issues relating only to the conduct and mental state of an accused. Did the accused do a particular thing? Or did the accused do it with a particular mental state? But where a particular count is supported by one complainant's evidence raises the issue of whether she consented to certain conduct by an accused, the issue relates much more to her mental state than his. The trial judge kept referring to 'the improbability of similar lies' on that issue. ... To tell the jury that the evidence went to the improbability of each complainant lying, or being unreliable about consent was to say that a lack of consent by five complainants tended to establish lack of consent by the sixth.

Neither the courts below nor counsel for the respondent cited any case in which similar fact evidence of complainants who said they did not consent was led to show that another complainant had not consented. Whether or not similar fact evidence could ever be used in relation to consent in sexual cases, it could not be done validly in this case. It is impossible to see how, on the question of whether one complainant consented, the other complainants' evidence that they did not consent has any probative value. It does not itself prove any disposition on the part of the accused. It proves only what mental state each of the other complainants had on a particular occasion affecting them, and that can say nothing about the mental state of the first complainant on a particular occasion affecting her."

99 As the fact in issue in relation to the matter of NL is consent, and is the basis upon which the prosecution seeks to introduce evidence of the other offences against other complainants, allegedly committed by the accused, it is apparent from the above High Court authority that such evidence is not probative and is irrelevant.

100 It is clear that the trial of the accused upon the counts involving NL should be conducted separately from other trials.

Counts 8 to 18 involving allegations of aggravated burglary, rape, false imprisonment, attempted murder and armed robbery of JK.

101 The offences against JK took place in the evening of 11 March 2005. It should be observed that the accused has pleaded guilty to counts of aggravated burglary, false imprisonment, attempted rape, intentionally causing serious injury, rape, and the armed robbery of JK.

102 The circumstances of the offence against JK have been summarised above. It involved entry to her home, the use of a knife, the stabbing and cutting of the throat of JK in circumstances of great violence. However, apart from the fact that these events occurred in close proximity of time and place to the other offences, and in particular to those against AM, MS, BM, GH and BE, and that the offences are sexual in nature and were committed by a "black man", there is little which can be said to be striking in similarity with such offences and nothing that is highly probative in establishing the fact of identity in relation to the charges relative to the alleged assault of AM, and to the charges of armed robbery and assault relating to MS and BM.

103 In my view the circumstances of the admitted offences against JK are highly prejudicial and are not outweighed by the probative value of the evidence in relation to the other offences. Indeed, the circumstances of the admitted offences against JK are such that in my view it would be difficult for a jury, notwithstanding appropriate judicial direction, to use other than propensity reasoning in an impermissible manner in the associated charges relating to MS, BM and GH and BE. The trial of the accused upon the matters relevant to JK should be heard separately from the trial of other matters.

Count 19, involving an allegation of assault against AM.

104 I turn to the offence of assault alleged in relation to AM. It will be recalled that this was an incident which took place in the street after the attack upon JK. The attacker was described by the complainant as having dark skin and short black curly hair and was said to be in excess of six feet in height. He was described as wearing a dark royal blue shirt with a black T-shirt underneath and black pants. This clothing is entirely different from the description of clothing described by JK and from the description of clothing given by MS in relation to the offender who it is alleged attacked her several minutes later. Apart from the fact that the offence against AM occurred in the street in the vicinity of the area where attacks took place upon JK and MS both before and afterwards, there is no other issue of similarity. It is said that the fact in issue in relation to AM is that of identity. In my view there is no evidence relating to the other offences which is in any way sufficiently probative to outweigh the issue of prejudice in terms of the issue of identity.

Counts 20 to 23 involving allegation of armed robbery and assault in relation to MS and BM and Counts 23 to 37 involving allegations of rape, intentionally causing injury in relation to GM and BE.

105 I turn to Counts 20 to 23 involving allegations of armed robbery and assault in relation to MS and BM and Counts 23 to 37 involving allegations of rape and intentionally causing injury in relation to GH and BE. The question before me is whether the evidence against those complainants should be cross admissible in the trials of the accused relating to such offences. It will be recalled that both sets of offences are alleged to have been committed at the scout hall in Princes Highway, Dandenong. The offences against MS and BM are alleged to have been committed on the evening of 11 March 2005. The offences against GH and BE are alleged to have been committed at 1.00pm on 12 March 2005. A safety razorblade was used in both offences. The offender in both cases is described as being approximately six feet tall with a scar on his face. Of course the accused has pleaded guilty to the rape of GH, so there is no fact in issue as to identity in relation to that matter. The prosecution argues that the circumstances of the rape of GH are cross admissible in relation to the prosecution of the accused and relate to the fact in issue of identification in relation to the allegations of assault and armed robbery involving MS and BM. However, the circumstances of the offences alleged are entirely different. The allegations in relation to Counts 16 to 18 are of assault and armed robbery of cigarettes. There is no striking similarity between the two events apart from the fact that the alleged assaults took place near the scout hall, the alleged assailant was "black", had a scar, and used a razorblade. In my view evidence of the circumstances of the rape of GH are not cross admissible in the case of MS and BM by reason of the prejudicial value thereof exceeding any probative value.

Summary

106 The prosecution argument that the proximity in time, location, description and identification of the offender are so connected or have such an underlining unity as to lead to the conclusion that they were committed by the same person has a superficial attraction. However, analysed properly, the evidence reveals little more than that one or more "black" men of an age similar to that of the accused man committed a series of disparate offences, usually against women, in a discrete area close to the residence of the accused. There is, however, nothing of common "modus operandi" about the offences. There is no discernible pattern of conduct about the offences, save that each of them appears to have been random but disparate in its execution.

107 In relation to some of the offences there is no issue as to identity and in relation to others there are serious issues. Much of the identification evidence in those cases is equivocal, some of being based, at least partly, upon television footage of the arrest of the accused. I say no more about this as it might require to be the subject of further rulings.

108 Added to this is the evidence of NL that on 10 March 2005 she was raped by a second offender who was described by her as being black and who it would appear she, contrary to the DNA evidence, believed when she made her statement was the accused man.

109 On any view the fact that there was a second offender who bears at least some similarity to the accused and who, on the evidence, committed a violent offence of rape at the scout hall during the period between the first offence and the last offence, must reduce the confidence one has that there is a high degree of improbability that it was other than the accused who committed all or some of the other offences. There can be no doubt that to introduce the evidence of the offences to which the accused has pleaded guilty, and the evidence of other offences in a joint trial, would be highly prejudicial. In my view the evidence of the commission of other offences by the accused, in a joint trial, would not provide sufficiently strong support of the identity of the offender in relation to those offences where identity is in issue. In all the circumstances, and for the reasons set out above, I do not conclude that it is just to admit the evidence of alleged offences against other complainants in a single trial of the accused. The presentment must therefore be severed.

110 In coming to the above conclusion I might add that I have given careful consideration to the words of Vincent J, as he then was, in R v Camilleri[27] where his Honour said in relation to s.398(A) of the Crimes Act:

"The task of a trial judge in determining whether in the circumstances of the case it would, in view of such a risk, be in the interests of justice for the evidence to be admitted into the trial, is an extremely onerous one. On the one hand there is a very important social value in bringing before the jury as much of the relevant and admissible material available which bears upon the questions to be determined by them, as is reasonably practicable in the circumstances. So the ultimate decision is based on what might be described as the 'real world', and on a 'real' factual matrix, rather than some sanitised and artificial construct which excludes evidence probative to the actual dynamics of the situation; on the other hand, there is a potential that the jury may be diverted from the proper performance of their duty by the introduction of prejudicial material ... ."

Conclusion

111 I have concluded that in the particular circumstances of this case the risk the jury may be diverted from the proper performance of their duty by the introduction of prejudicial material outweighs the probative value of that material insofar as the present presentment is concerned.

[1] See Makin v Attorney-General (NSW) [1894] AC 57.

[2] [1978] HCA 29; (1978) 140 CLR 108 at 117.

[3] [1984] HCA 5; (1984) 152 CLR 528.

[4] At 604.

[5] See especially p.551-2.

[6] See s.372(3AB).

[7] [1999] VSCA 157; [1999] 2 VR 708.

[8] At 713.

[9] At 714.

[10] At 716.

[11] [2004] VSCA 185.

[12] At [40].

[13] [1999] VSCA 157; [1999] 2 VR 708.

[14] [2004] VSCA 12; (2004) 7 VR 375.

[15] At 376.

[16] At 388.

[17] R v Tektonopoulos [1999] VSCA 93; [1999] 2 VR 412 at 417 (per Winneke P).

[18] [2004] VSCA 114.

[19] [1991] 2 AC 447 at 462.

[20] At 390.

[21] At 418.

[22] At [85]-[86].

[23] At [85] and [86].

[24] (1988) Hoch v R 148 CLR 292 at 301.

[25] [2006] HCA 4; 80 ALJR 537

[26] At 546-547.

[27] [1999] VSC 159.