Court of Appeal (Qld)|2006-08-22|Before: Williams JA, Holmes JA and Helman JSeparate reasons, for judgment of each member of the Court, each concurring as to the orders, made
Williams JA, Holmes JA and Helman JSeparate reasons, for judgment of each member of the Court, each concurring as to the orders, made
Catchwords
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –
INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – OF
COUNTS –
BY STATUTE – SAME FACTS OR SERIES OF OFFENCES OF SAME OR SIMILAR CHARACTER
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – OFCOUNTS –BY STATUTE – SAME FACTS OR SERIES OF OFFENCES OF SAME OR SIMILAR CHARACTER– where appellant convictedafter trial of 34 counts of indecent dealingcommitted over a period between 1981 and 1984 – where he was sentenced toconcurrentsentences with the longest being three years imprisonment –where majority of convictions relate to one complainant but someto thiscomplainant’s brother, the appellant’s son and the appellant’sdaughter – whether fresh evidencecould be adduced by appellant on appeal– whether proceedings should have been stayed due to media reports –whethercharges were adequately particularised – whether charges relatingto all complainants should have been joined – whetherrelationshipevidence ought to have been admitted – whether verdicts were unreasonable
– admissibility of similar fact
evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
APPEAL AGAINST
SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER –
APPLICATIONS TO INCREASE SENTENCE –
OFFENCES AGAINST THE PERSON –
where appellant sentenced to two years imprisonment on majority of counts
involving complainant
A, and three years imprisonment on counts involving other
children – where appellant seeks extension of time to apply for leave
to
appeal against sentence to have it suspended in part – where
Attorney-General seeks maximum sentence – whether sentence
imposed was
manifestly inadequate
Criminal Code 1899 (Qld), ss 567, 597A(1),
597(A)(1AA)Evidence Act 1977 (Qld), s 132A Gallagher v R
[1986] HCA 26
(1986) 160 CLR 392, applied Hoch v The Queen [1988] HCA 50
(1988) 165 CLR 292,
applied Mickelberg v R [1989] HCA 35
(1989) 167 CLR 259, applied
Phillips v The Queen (2006) 80 ALJR 537
[2006] HCA 4, 9 December
2005, applied R v B [1989] 2 Qd R 343, applied
R v Condren, ex parte Attorney-General [1991] 1 Qd R 574, applied
R v F [1994] QCA 537, unreported, CA No 439 of 1994
12 December
1994, consideredR v Glennon [1992] HCA 16
(1992) 173 CLR 592, applied
R v PV
ex parte A-G (Qld) (2005) 2 Qd R 325
[2004] QCA 494, CA No
238 of 2004, 23 December 2004, considered
R v S (2001) 125 A Crim R 527
[2001] QCA 501
CA No 136 of 2001, 16
November 2001, considered S v The Queen [1989] HCA 66
(1989) 168 CLR 266, followed
Judgment (128 paragraphs)
[1]
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - OF COUNTS - BY STATUTE - SAME FACTS OR SERIES OF OFFENCES OF SAME OR SIMILAR CHARACTER - where appellant convicted after trial of 34 counts of indecent dealing committed over a period between 1981 and 1984 - where he was sentenced to concurrent sentences with the longest being three years imprisonment - where majority of convictions relate to one complainant but some to this complainant's brother, the appellant's son and the appellant's daughter - whether fresh evidence could be adduced by appellant on appeal - whether proceedings should have been stayed due to media reports - whether charges were adequately particularised - whether charges relating to all complainants should have been joined - whether relationship evidence ought to have been admitted - whether verdicts were unreasonable - admissibility of similar fact evidence
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON - where appellant sentenced to two years imprisonment on majority of counts involving complainant A, and three years imprisonment on counts involving other children - where appellant seeks extension of time to apply for leave to appeal against sentence to have it suspended in part - where Attorney-General seeks maximum sentence - whether sentence imposed was manifestly inadequate
[3]
Criminal Code 1899 (Qld), ss 567, 597A(1), 597(A)(1AA)
The appellant appeared on his own behalf in CA No 169 of 2005 and CA No 123 of 2006
[17]
A J Rafter SC for the respondent in CA No 234 of 2005
[18]
S G Bain for the respondent in CA No 169 of 2005 and for the appellant in CA No 234 of 2005
[19]
The appellant appeared on his own behalf in CA No 169 of 2005 and CA No 123 of 2006
[20]
Legal Aid Queensland for the respondent in CA No 234 of 2005
[21]
Director of Public Prosecutions (Queensland) for the respondent in CA No 169 of 2005 and for the appellant in CA No 234 of 2005
[22]
[1] WILLIAMS JA: I have had the advantage of reading the extensive reasons for judgment prepared by Holmes JA. I agree with all that is said therein, and there is little I can usefully add.
[23]
[2] One point taken by the appellant, who appeared in person, was that there was insufficient particularity with respect to the numerous charges against him. Courts are now being called upon to adjudicate upon conduct which occurred many years prior to trial, and in most of those cases it is not possible for the complainant to give a precise time and date for the conduct constituting each of the numerous offences which are almost invariably involved. The inability to provide a precise time and date does not mean that each charge is insufficiently particularised so that the accused is deprived of a fair opportunity of mounting a defence to it. What is important is that the evidence in relation to each charge is clear and distinct, and readily distinguishable from the other charges levelled against the accused.
[24]
[3] As the reasons of Holmes JA demonstrate, the evidence here satisfied that test. Though no precise date was ascribed to each charge, each charge was the subject of detailed evidence distinguishing it from the other charges. The timeframe within which each of the offences was alleged to have occurred was established by the evidence. In consequence I have come to the conclusion that there was no substance in the appellant's complaint as to the want of particulars with respect to the various charges he faced at trial.
[25]
[4] I am also of the view that the reasoning in R v B[1989] 2 Qd R 343 must result in the conclusion that, though the evidence of the complainants other than A was admissible in respect of the charges against the appellant involving A, the converse did not follow; the evidence of A directly implicating the appellant with charges relating to other complainants may well have been admissible on those other charges, but the totality of the evidence of A against the appellant was not admissible with respect to those other charges. It follows that I agree with Holmes JA that the effect of the instructions to the jury was that they could rely on inadmissible evidence in considering counts 16, 19, 21, 23, 33, 34 and 35, and in consequence the convictions on those counts should be set aside. It will be for the Director of Public Prosecutions to determine whether the appellant should be re-tried on those charges.
[26]
[5] The remaining offences were serious and were persisted in over a lengthy period of time. Taking all of the material relevant to sentence into account, including what happened to the appellant between committing the offences in question and his trial, I am of the view that the sentence imposed was appropriate. It follows that the Attorney's appeal against sentence should be dismissed, and the appellant should not have leave to appeal against the sentence.
[27]
[6] I agree with the orders proposed by Holmes JA.
[28]
[7] HOLMES JA: The appellant was convicted after a trial of 34 counts of indecent dealing committed over a period between 1981 and 1984 during which he was a music teacher at a Brisbane school. Different concurrent sentences were imposed in respect of different counts, the longest being three years imprisonment. He appeals against his conviction, on the grounds that it is "unsatisfactory and contrary to law" and seeks an extension of time to apply for leave to appeal against his sentence. The Attorney-General has appealed against the sentence as manifestly inadequate.
[29]
[8] The appellant appeared for himself in respect of the appeal against conviction and the application for an extension of time for appeal against sentence, but was represented on the Attorney-General's appeal against sentence. He mounted a number of arguments which went well beyond the grounds in his notice of appeal. He sought to tender fresh evidence, which he said would contradict aspects of the prosecution case; argued that the proceedings ought, at various stages, to have been stayed; said that counts on the indictment were insufficiently particularised and improperly joined; contended that relationship and similar fact evidence were wrongly admitted, and that the jury were misdirected on the use to be made of the latter; maintained that his counsel had been incompetent; and said, in effect, that the improbability of the Crown case rendered the verdicts unreasonable.
[30]
[9] Because of the breadth of those claims, it is necessary to outline the evidence in some detail. The complainant in respect of 27 of the convictions was A, who was a student at the school where the appellant taught music. A lived with his mother and his younger brother, B, his junior by about three and a half years. The Crown case was that, under the pretext of providing a father figure to A and B, the appellant inveigled his way into their family life while engaging in surreptitious sexual activity with A, and, to a much more limited extent, with B. Some of that activity involved the appellant's own infant children. B was the complainant in respect of two of the counts on the indictment, while the appellant's daughter, C, and son, D, were the subjects of the remaining five counts.
[31]
[10] A's evidence was that he started grade 8 in 1981, when he was twelve years old. He travelled to and from school on a bus chartered by the school in a trip which took about half an hour. In the afternoons, because of various after-school activities, the bus left the school at about 5 o'clock. A was a talented music student and the appellant encouraged him to spend a good deal of time with him, in the lunch hour and after school. The school had a large hall with class rooms and store rooms attached, to which, during 1981, sound-proofed practice rooms were added. A said that the appellant would, while they were alone in one of the practice rooms, frequently engage in talk about sex and masturbation, in the guise of giving fatherly information and instruction. In the second half of 1981 he began to touch A's genitals.
[32]
[11] The first of those occasions was the subject of count 1. A said that the two of them had been having a conversation about sex when the appellant stopped and asked if he was aroused by the conversation. On his denial, the appellant expressed disbelief, demanding to check. He did so by grabbing A's genitals through his trousers and rubbing and squeezing them. A responded with a slight erection, and the appellant expressed doubt that he had been truthful. This was the first of a number of occasions on which the appellant touched A's genitals in the course of a discussion about sex.
[33]
[12] In the next instance of touching, the appellant again enquired as to whether A was becoming aroused after talk of sex. On this occasion, the appellant undid A's fly and placed his hand inside his trousers. He rubbed and squeezed A's genitals (count 2) and commented to the effect that A did not appear aroused. Eventually A began to show signs of an erection and he desisted. A said that the appellant "did that sort of thing [putting his hand on his genitals, inside and outside his clothing to see if he was aroused] frequently".
[34]
[13] On a third occasion in the practice rooms, after one of his regular discourses on masturbation technique, the appellant said that he would give A some tips. He instructed A to take his trousers down and demonstrate how he masturbated; A attempted to do so with his underpants still on. The appellant indicated that that was unsatisfactory, and helped him to bring his underpants down to his knees. Then he proceeded to tell him how to use his hands on his genitals. He first masturbated A and then moved A's hand in order to show him what to do (count 3).
[35]
[14] The next count arose again in a practice room. A had been playing the piano. The appellant interrupted him and expressed concern that after all the masturbation lessons A had had, excessive practice might have damaged his genitals. On the pretext of inspecting them, he rubbed and squeezed A's genitals (count 4). He commented that the skin was dry and suggested that A surreptitiously borrow his mother's moisturiser and apply it. The pretence of checking that A's genitals were healthy was frequently repeated after that instance.
[36]
[15] A fifth occasion was unusual in that it occurred in the main music room rather than a practice room. In this instance the appellant helped take A's trousers down so that he could examine his penis and see whether he had been masturbating, as the appellant had instructed him to do. On that occasion he again rubbed and squeezed A's genitals (count 5). Count 6 involved a supposed anatomy lesson. The appellant and A had been looking at a text on human anatomy, and in particular a section on the physiology of erections, when the appellant suggested it would be an improvement on looking at diagrams to show A the real thing. He helped A take his trousers down, squeezing his buttocks in the process, and told A to set about obtaining an erection. When the latter was not particularly successful, he indicated areas more sensitive to touch, rubbing A's penis and holding his scrotum, then moving A's hand accordingly.
[37]
[16] A similar occasion was the subject of count 7, but in this instance the appellant squeezed A's scrotum painfully in the process of identifying his spermatic cord. In the course of another anatomy lesson, again in a practice room, the appellant insisted that they both take down their trousers and made A pull his, the appellant's, boxer shorts off. He then held one of A's hands on A's own penis with his other hand on the appellant's penis, making comparisons between the two (count 8).
[38]
[17] In the instance giving rise to count 10, A, on the appellant's instructions, cut the pockets out of his trousers, enabling the appellant to squeeze his genitals through his underwear. About a week later in the main music room the appellant demanded that A cut holes in the pockets of yet another set of trousers and, when he did not co-operate, grabbed and squeezed one of A's testicles (count 11).
[39]
[18] At the appellant's suggestion, A went to the appellant's house on a number of occasions to help him build a sailing boat. On one of those occasions, the appellant suggested that he teach A how to defend himself when he was harassed at school. Under the guise of practice, the appellant grabbed A from behind, rubbing his own genitals into A's back while holding and rubbing A's genitals (count 12). There were other instances later, A said under cross-examination, when the appellant gave him fighting lessons and grabbed him. On another occasion when A was staying at the appellant's house and having a shower, the appellant got into the shower enclosure with him, made him wash the appellant's genitals and then rubbed, squeezed and washed A's genitals. He followed that by towelling A's genitals dry and insisting that A towel his, the appellant's, genitals (count 13). Again, A agreed under cross-examination that this was not the only time they showered together. On yet another occasion when A was at the house to assist with the boat building and the two were alone eating lunch, the appellant insisted on their both taking their trousers down and each touching the other's penis (count 14). There were fifteen or so other occasions when they engaged in mutual touching.
[40]
[19] Count 15 concerned the appellant's exposure of A to an indecent touching of his daughter, C, who was two or three at the time. He undressed her and parted her labia in order to show A her internal genitalia. He rubbed the child's clitoris and placed his finger in her vagina (count 16: indecent assault of C).
[41]
[20] A said that the appellant instructed him to sleep naked when he stayed at his house. One night he woke to find that the appellant was lying also naked behind him holding his body and rubbing his bare genitals while rubbing his own body and groin against A (count 17). There were other occasions he did not recall clearly when he had slept at the appellant's house and the latter had come in and abused him.
[42]
[21] The appellant's son, D, was born in 1982. When he was about six months old, the appellant, in order to demonstrate that it was possible to give a baby an erection, took A's hand and rubbed it on the baby's penis. While the appellant was manipulating A's hand, he rubbed the boy's genitals from behind, and thrust and rubbed his own genitals against A's back. Those events gave rise to count 18, indecent dealing with A, and count 19, indecent dealing with the baby. On another occasion, A tickled the baby's scrotum on the appellant's instruction; the appellant then placed his own finger into the baby's anus. The first incident gave rise to count 22 (indecent dealing with A) and the second to count 21 (indecent dealing with D). There were other occasions, A said in cross-examination, when the appellant had touched the baby's genitals and anus, inserting the tip of his finger into the anal canal, while pointing out aspects of his anatomy, but he did not recall them as clearly.
[43]
[22] On another occasion at the appellant's house, he and A engaged in mutual masturbation, and at the appellant's direction, A put a condom on the appellant's penis (count 23). Counts 24 and 25 again concern the appellant's daughter. The appellant made A get into the bathtub with the toddler and told him to wash between her legs. A exhibited some reluctance. The appellant parted the child's external labia (count 25), rubbed inside, and instructed A to do the same, moving A's hand so as to force him to rub the inner labia (count 24).
[44]
[23] The next counts involve incidents at A's home during the appellant's regular visits there for dinner; he would visit the boy in his bedroom after he had gone to bed. On the first occasion (count 26), A had been reading a book when the appellant came in and reproved him for wearing pyjamas. He checked to see if A had underpants on before putting his hand on the boy's hip area near his genitals and stroking him. He told A that he loved him like a father and wanted him to love him as a son. He pulled A's pyjama pants down to his ankles, held his hands to prevent him from covering himself, and started to massage him with a hand inside his shirt. Then he pulled his shirt over his head, restricting his ability to move and massaged the back of his body, touching his scrotum and anus in the process. A protested at being held down; the appellant told him he ought to obey him in order to maintain the father-son relationship. After some further conversation, the appellant tried to kiss A on his body as he said good night, but A resisted; he instead kissed the boy's face. A said there were other occasions when the appellant had massaged him, but he did not recall them in any detail.
[45]
[24] On the next occasion (count 27) the appellant climbed into A's bed and wrapped his limbs around him before grabbing his genitals outside his pyjama pants. He rubbed and squeezed them first outside and then inside his pyjama pants, while stroking his hair and kissing his face. He told A this was a normal demonstration of father-son love and asked A to say that he loved him and enjoyed these cuddles. There were, A said, other occasions when the appellant got into his bed to cuddle him, but this was the only such combination of caressing and fondling.
[46]
[25] In another incident, A was in bed without any cover over him when the appellant came into the room and started to talk about the importance of not wearing underpants to bed, because they could cause sterility. He asked A if he was wearing underpants; the boy replied in the negative, but the appellant, despite his resistance, angrily forced his pants down, to check. He rubbed the boy's genitals and asked him to say he loved him (count 28). On this occasion he emphasised that A should keep what they were doing secret, to avoid their closeness sparking the jealousy of others. Again, there were other instances, A said, in which the appellant had touched his genitals under the guise of checking whether he was wearing underpants.
[47]
[26] The last occasion at his own home about which A gave specific evidence involved the appellant's checking that his genitals were healthy and then pulling his pyjama pants down to inspect them, followed by his masturbating the boy (count 29) . A was reluctant to co-operate; the appellant threatened that if he did not, he would tell other people that he had caught him masturbating. The same formula of genital checking had occurred on other occasions, he said, but this one stood out because it was the only time that it occurred in isolation, not in combination with any other abuse.
[48]
[27] In the first half of 1983, the appellant travelled to Sydney with A in order to make arrangements for a tour of the school band in which A played. The two shared a hotel room. Each night, having plied A with alcohol, the appellant would get into the bathtub with him, wash him and masturbate him and make A in turn wash and masturbate him. He gave the boy tablets, which seem to have had a sedative effect. The two shared a bed, with mutual masturbation; the appellant made A kiss his erect penis and ejaculated on his face. Those incidents, not having occurred within this jurisdiction, were not the subject of any count.
[49]
[28] At about the same time, having completed the boat, the appellant took A on a camping and sailing trip to Lake Cootharaba. Again he gave the boy alcohol and tablets, again with a similar relaxing effect. On the first night that they were camping, the appellant made A kiss his penis while he rubbed A's hand against it (count 30). Later that night he positioned the boy against himself, so that each had his face in the other's groin, and each kissed the other's penis. He then held A's face against his penis and ejaculated on him (count 32). On another evening he pushed his finger into A's anus, moving it in and out (count 31).
[50]
[29] A's younger brother, B, although still in primary school, was also musically gifted and was encouraged by the appellant to take part in his musical programme and to play in the school band. B described the appellant as engaging in fatherly chats with him; he seemed keen to adopt a fatherly role generally. B was taken on the band tour to Sydney and stayed in a hotel room with the appellant. The appellant and he bathed together. He was made to wash the appellant's genitals and masturbate him, while he similarly bathed and masturbated B. B was told not to wear anything to bed. In bed, the appellant fondled him about the genitals while discoursing on the topics of erections and male sexuality. Again, of course, occurring out of the jurisdiction, those matters could not be the subject of any charge. B gave evidence of another instance in which he participated in an overnight musicathon at his brother's school, in the course of which he slept in a sleeping bag in the hall. The appellant quizzed him about whether he was wearing pyjamas or underwear and then put his own hand in and touched the boy's genital area (count 33). He instructed him to take off what he was wearing.
[51]
[30] Finally, on an occasion when B was at the appellant's house with A, he was bathed with the appellant's daughter. He was 11 or 12 years old. At the appellant's instruction he washed inside the child's genitals (count 34 as concerns the child, count 35 as concerns B).
[52]
[31] The appellant sought to place before the Court a number of statutory declarations he had made. They were to the effect that the practice rooms in which A placed a number of the earlier incidents as occurring were not built until 1982; that the bus from the school to the area where A lived left within 10 to 15 minutes of the end of the school day; and that the plans for the boat with which A assisted him in building were not available until December 1981, so that its building must have happened after that date.
[53]
[32] In relation to the first matter, apart from the declaration as to his own belief that the practice rooms were built in late 1982, the appellant said he had available a statement from a former student with the same recollection. In 2003, he had confirmed with that person that he would give evidence, but when the matter actually came to trial in 2005 the prospective witness was in China working as an exchange teacher. When asked why a telephone or video link could not have been used, the appellant said that was something he had expected his lawyers to arrange. (The issue about whether the renovations occurred in 1981 or 1982 was raised repeatedly in cross-examination of A at the trial.) In respect of the boat, he had known that it was constructed over the summer holiday between 1981 and 1982. That was confirmed by a facsimile he had, from an organisation which leased plans and had provided him with a plan for his boat. The only basis given for his belief as to the bus departure time was his own recollection that students who stayed back for band practice had to be collected by their parents.
[54]
[33] The three considerations relevant to whether further evidence should be admitted are well established:[1] whether it could, with reasonable diligence, have been produced at the trial; whether it is apparently credible; and whether there is a significant possibility that the jury would have entertained a reasonable doubt about the accused's guilt if that evidence had been before it.
[55]
[34] The first and most obvious answer to the appellant's submissions is that all of the evidence he now seeks to tender was available at trial or could have been produced there with reasonable diligence. It is true that the fact that the evidence is not "fresh" in the sense that it was available at trial is not always conclusive against its admission**[2]**; there exists some latitude in that regard. But I do not think that this is an exceptional case. Essentially, the appellant, having decided not to give evidence at trial, seeks to do so here.
[56]
[35] No statement or affidavit from the supposed other witness on the practice room issue was actually put before us, so it is rather difficult to judge the credibility of his proposed evidence; but assuming he gave it in accordance with what the appellant indicated, it would, it appears, have been a matter of recollection only. Its cogency would have been further limited by the fact that it could only be relevant to the first three counts, which were the only ones that the appellant had placed as definitely happening in the second half of 1981. It seems to me most unlikely that such evidence would have had any bearing on the jury's verdict.
[57]
[36] The evidence as to when the boat was built was devoid of significance. A's evidence was that the incidents at the appellant's house occurred at the end of 1981 or early 1982, which was perfectly consistent with the boat having been built in December and January. The appellant asserted in his declaration that he worked alone on the boat over the summer holidays; but he did not of course, say so to the jury; it was not put to A at the trial that he had not worked with the appellant on the boat; and, indeed, the appellant's ex-wife gave evidence that A had helped build the boat. The supposed "fresh evidence" about the boat could not have advanced the defence case at all.
[58]
[37] The appellant did not expand on how it could be established that the charter bus invariably left the school soon after the end of the school day, apart from his own bald assertion of belief. It was unlikely to have raised a significant possibility of acquittal. More fundamentally, given that the appellant could readily have given and called evidence at the trial about all three matters now the subject of the application, there is simply no miscarriage of justice in the fact that those matters were not before the jury.
[59]
[38] The appellant argued that the proceedings against him should have been stayed at various points. His trial had commenced on 23 May 2005, but the jury was discharged because of prejudicial statements in the Crown Prosecutor's opening; he had, quite inexcusably, said that the appellant could write a paedophiles' handbook. He had also opened a conversation between the complainant and the appellant which suggested that another student, not the subject of any charge, had been indecently dealt with by the appellant. The opening had been reported in part in the Courier Mail. The newspaper article is not before this Court and the appellant said he had not seen it. However, the trial judge discussed the situation with counsel before discharging the jury. It appears from what was said that the prejudicial matters did not appear in the article. The judge made the decision to discharge the jury and to recommence the trial on 26 May, with jurors drawn from a different group on the same panel (of whom there were 500). The fresh jury was given the usual instruction to disregard anything read in the papers or heard about the case outside the court.
[60]
[39] The discharge of the existing jury and the empanelling of a new jury three days later were appropriate to ensure that the appellant got a fair trial. In the absence of any evidence that the newspaper article contained anything prejudicial, there was no reason to allow any longer elapse of time. There was certainly no occasion for a stay, and defence counsel sought none. The appellant pointed to this inaction as an instance of incompetence; but in the circumstances it plainly was the appropriate course.
[61]
[40] The appellant also argued that a Four Corners programme screened on the first night of the aborted trial, which dealt with the poor rehabilitation prospects of sex offenders, was likely to bias the jury empanelled later in the week. This Court has before it the transcript of both trials, that which was aborted and that which proceeded. In neither is there any reference to the programme, let alone any application for a stay. No evidence as to its content was placed before us. There is nothing in this point.
[62]
[41] The remaining matter which the appellant contends should have resulted in a stay of the trial was this: on the fourth day of the trial, the trial judge advised counsel that a Google search in the appellant's full name led to an inter-state site which contained information about the appellant. There is no indication in the transcript precisely what that information was, nor how far one had to go into the Google search results to reach the site address. (The appellant's name not being particularly distinctive, one would imagine a search on it would throw up a considerable number of entries.) The appellant said here that the entry related to his conviction in the Northern Territory in 1994 on a number of counts of gross indecency and carnal knowledge.
[63]
[42] Given that the site was beyond the jurisdiction of the court, any stay, presumably, would have had to be of indefinite duration. As Mason CJ and Toohey J observed in R v Glennon[3]
[64]
"... a permanent stay will only be ordered in an extreme case[4] and there must be fundamental defect 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfairness consequences'[5]."
[65]
[43] There was no suggestion that any member of the jury had in fact attempted a search. Among the opening instructions had been the direction that the jury members were not to make inquiries of their own about the appellant. Defence counsel said that he could not put anything before the learned judge to warrant her discharging the jury, and while he said he would like to reflect on whether any risk posed by the site justified a stay application, in the event he made none. The learned judge made it clear that she would, independent of any submission, consider the question of whether unfairness required the discharge of the jury but in the event decided against doing so. In her summing up she again warned the jury against having regard to anything they might have learnt from any source outside the court room.
[66]
[44] This passage from the judgment of Mason CJ and Toohey J in R v Glennon[6] seems entirely apposite:
[67]
"... the suggestion that there was a substantial risk that at least one juror would have acquired knowledge, before the verdict was given, of the respondent's prior conviction was again a matter of mere conjecture or speculation. The mere possibility that such knowledge may have been acquired by a juror during the trial is not a sufficient basis for concluding that the accused did not have a fair trial or that there was miscarriage of justice. Something more must be shown. The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence."
[68]
[45] It does not seem to me that the mere existence of the possibility that the jury could, through search, find out the adverse information was sufficient to warrant a stay. I would not be prepared to assume that any jury member, contrary to the specific instructions that they were given, and indeed contrary to the law, undertook such a search. In the absence of any evidence of that occurring, there was no basis for discharging the jury and the mere risk alone was not of such proportions to justify a stay.
[69]
[46] The appellant complained of a lack of particularity in the charges. He said that A could not give time of day, date or time of the year for particular events. That, of course, is not fatal. But his counsel had applied for a pre-trial ruling as to the adequacy of particulars on specific counts, on the basis that the evidence (at that stage as it appeared in the appellant's statements) was insufficient to distinguish those events from others by reference to anything objective. The learned judge on the pre-trial application ruled against that submission, except in respect of one count (count 9) which was then the subject of a nolle prosequi.
[70]
[47] The application was renewed at trial, in the form of a submission that counts 1- 4, 6, 8, 12-14, 17, 20-22, and 27-29 were insufficiently particularised and ought not to be left to the jury. The complaint was that A had given evidence of the events without reference to any objective circumstances and in respect of a number had referred to them as the first occasion of a particular type of offending. (That submission seems to have been made with, in mind, this Court's criticism in R v F[7]of particulars of an indecent dealing count:
[71]
"Its designation as 'the first occasion' did not enable it to be identified by referring to any objective external fact or event and did nothing to diminish the difficulties apprehended by their Honours in similar circumstances in S v The Queen".)
[72]
The learned trial judge expressed the view that the evidence had not differed significantly from that placed before the judge considering the matter pre-trial and considered therefore that there was no basis for revisiting the ruling.
[73]
[48] The difficulties of inadequate particularisation identified in S v The Queen[8], primarily by Dawson, Gaudron and McHugh JJ, were: the risk of latent ambiguity, that is, that any one of a number of offences might fall within the description of the relevant count; the difficulty of answering charges of unspecified occasions; the problem of determining admissibility of similar fact evidence when it could not be related to a specific offence on an identified occasion; the possibility that jurors would identify different occasions as constituting the relevant offences, so that the verdict was not unanimous, with the related risk of conviction on the basis of a general disposition to commit offences of the kind; and the problems inherent in pleading autrefois convict or autrefois acquit where there was uncertainty as to the offence of which an accused had been charged.
[74]
[49] None of those problems arises in the present case, in which the evidence relating to each count was clear and distinct. It was accepted that the details A gave in his evidence were generally consistent with those provided by way of statements and formal particulars before the trial. The fact that A referred to some of the incidents as the first of a series of similar incidents did not, per se, render the circumstances analogous with those in R v F. He explained in each case that it was the only time in which the events had happened in the particular way he described; more importantly his description was such as to identify and distinguish the occasions of which he spoke. As appears from the outline of his evidence already given, he went into considerable detail as to the context in which each offence occurred, the conversation and the surrounding circumstances. It was not a situation in which the events were indistinguishable one from the other; the jury would not have had any difficulty in understanding what event they were convicting on in respect of any given count. The rulings in respect of the adequacy of the particulars were, in my view, correctly made.
[75]
[50] There was some discussion, in the course of the appeal, of changes made by the Crown to particulars of two counts in a schedule provided to the jury at the close of the evidence. The first, made at the commencement of the summing-up, was to change the particulars in count 22; an allegation that the complainant had been procured to touch the baby's anus was altered to refer to the baby's scrotum, in accord with the evidence the complainant had given. The second was made at the jury's instigation: after having retired to consider its verdict it sent in a note pointing out that the period charged in respect of count 34 began in 1984, inconsistently with those in counts 33 and 35, which began in 1983. It was, it seemed, a clerical error and the count was amended. Counsel for the appellant at the trial did not take any objection to either amendment; correctly, since no prejudice could be identified. The appellant here did not go beyond saying that the changes seemed to him a departure from normal procedure. They were, it is clear, inconsequential.
[76]
Joinder, similar fact evidence and separate trials
[77]
[51] At the pre-trial hearing, the appellant's counsel took objection to the joinder of the charges involving the appellant's children and B with those counts concerning A. Section 567(2) of the Criminal Code requires for joinder that the charges be -
[78]
"founded on the same facts or [be], or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose".
[79]
[52] The charges concerning A were a series of offences of similar character; arguably, they were also committed in the prosecution of a single purpose, the sexual subjugation of A. There was no argument against the joinder of those charges, nor against their being heard together. Counts 16 and 25, which concerned the appellant's daughter, were, in each case, founded on the same facts as counts involving A (counts 15 and 24); the same applies to count 21, indecent dealing with the baby, which had the same factual basis as count 22. The events involving B were also, in my view, capable of being regarded as part of a series of offences of similar character by which the appellant gained sexual dominion over both boys. The ruling that the counts were properly joined under s 567 was correct; but the judge in making it did not take the necessary further step of considering whether they ought to be tried together.
[80]
[53] Section 597A(1) of the Criminal Code gives the court a discretion to direct that counts in the indictment be separately tried if their joinder may result in prejudice or embarrassment to the accused in his defence, or if it is otherwise desirable. Questions of prejudice in this case turn on the extent to which evidence on given counts was admissible on others, because
[81]
"[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) 61 ALJR 1; 68 ALR 1."[9]
[82]
[54] The position is clearest in respect of the A counts. Evidence in respect of each of those counts was admissible on the others as going to show the relationship between A and the appellant. The evidence of the dealings with the son and daughter of the appellant was, obviously enough, admissible where it involved A's being forced to touch them, because that was part of the appellant's indecent dealing with him. But the evidence of what happened to B could only be admissible on the counts relating to A as similar fact evidence.
[83]
[55] The High Court has recently restated the requirements for admissibility of similar fact evidence in Phillips v The Queen[10]:
[84]
"The 'admission of similar fact evidence ... is exceptional and requires a strong degree of probative force'[11] It must have 'a really material bearing on the issues to be decided'.[12] It is only admissible where its probative force 'clearly transcends its merely prejudicial effect'.[13] '[I]ts probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind.'[14] The criterion of admissibility for similar fact evidence is 'the strength of its probative force'.[15] It is necessary to find 'a sufficient nexus' between the primary evidence on a particular charge and the similar fact evidence.[16] The probative force must be 'sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused'.[17] Admissible similar fact evidence must have 'some specific connexion with or relation to the issues for decision in the subject case'.[18] As explained in Pfennig v R[19]
[85]
[T]he evidence of propensity needs to have a specific connexion with the commission of the offence charged, a connexion which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it."
[86]
[56] In this case the evidence of B was admitted in relation to charged acts as similar fact evidence. In relation to the uncharged acts (the Sydney episode) it was, after a good deal of discussion throughout the course of the trial, admitted, and directed on, as evidence of the relationship between the appellant and B. But all of the events involving B, charged and uncharged, had real probative force in the case as it concerned A, because the modus operandi in each case was so strikingly similar. The appellant purported to adopt a fatherly role to both boys, and then exploited that position. His conduct in Sydney with B was a replication of what he had done in particular instances with A. With each boy he engaged in discussion about male anatomy and sexual response as a setting for his advances. He insisted on joint ablutions, taking the opportunity to masturbate and be masturbated. He encouraged the boys to sleep naked, and managed in each case to position himself in bed with the boy and engage in genital fondling. If B's evidence of his Sydney experience were accepted, there was no reasonable view of it consistent with the appellant's innocence on the charges against A. That evidence would, in my view, properly have been admitted as similar fact evidence on the A counts.
[87]
[57] The evidence of the charged acts involving B was appropriately received as similar fact. In the instance of the musicathon, the pretext of checking whether B was wearing anything was again used as an opportunity for touching his genitals, just as it was on a number of occasions with A. Finally, the insistence that each of the complainants get in the bath tub with his daughter, wash her and then wash her genitals was a peculiar, to say the least, feature of the appellant's conduct in each case. Again, there was no rational view of it consistent with innocence on the A charges.
[88]
[58] The appellant argued that the evidence of B ought to have been excluded because of the possibility of his collusion with A. That submission overlooks the combined effects of s 597(A)(1AA) of the Criminal Code and s 132A of the Evidence Act1977 (Qld), the first of which requires the Court to disregard the possibility that similar fact evidence is produced by collusion and the second of which precludes the Court from ruling evidence inadmissible on the same basis.
[89]
[59] The evidence of B was properly before the jury in respect of the charges against A. But there arises a different question when one turns to consider the counts on which the appellant was charged with indecent dealing with B and with his own children. Here the problem identified by the Court of Criminal Appeal in R v B[20] arises: while the evidence of the other complainants was admissible in respect of the counts concerning the principal complainant, the converse did not follow.
[90]
[60] The two counts involving B were count 33 and count 35; the first concerning the touching of the boy's genitals at the musicathon sleepover on the pretext of checking what he was wearing, and the second being the instruction to part the labia of the appellant's daughter while bathing with her. The evidence in respect of some counts involving A would have been admissible on the first, for example, that on count 26 and count 28, which involved a similar pretext; and in respect of count 35, the evidence on counts 24 and 25 which also involved indecent dealing with the child, would equally have been relevant and admissible. But I do not think that any strong argument to similar effect existed in respect of the many general occasions of masturbation spoken about by A, nor, more particularly, incidents where the appellant was said to have made A kiss his penis or digitally penetrated him. As counsel for the Crown pointed out here, striking similarity is not an essential requirement for the admissibility of propensity evidence; but in a case of this kind, it is difficult to see how evidence of any other calibre could have the necessary probative force. The fact that the appellant had interfered with A in certain ways did not go very far to prove that he had molested B in quite different ways.
[91]
[61] The situation is even more stark when one considers the charges of indecent dealing with the appellant's own children. While A and B obviously enough were necessary witnesses to those assaults, none of the evidence concerning indecent dealing with A and B themselves was admissible in respect of those charges; by no stretch of the imagination could one say that the dealings with them had any similar fact relationship with what happened to the infants.
[92]
[62] The focus in R v B, on the need to consider questions of admissibility and the particular prejudice which may attach in cases of sexual offences, has more recently been re-emphasised by this court in R v PV, ex parte A-G (Qld)[21]. Some allowance has to be made for the desirability of a single trial, in the interests of both Crown and the accused,[22] and often the accused for his own reasons will not seek separate trials; but this is not such a case. The appellant did take the point, and there was significant prejudice to him in trying him on all counts. The large body of inadmissible evidence concerning A had a strong potential to influence the jury in its consideration on the counts involving indecent dealing with the two children and B, despite direction as to the need to consider the evidence on each count separately.
[93]
[63] Those counts - 16, 19, 21, 25 and 33-35 - ought not to have been proceeded within the same trial as those against A. The appellant's convictions in respect of them should be set aside. On the other hand, as I have already explained, the evidence in relation to them was properly admitted in respect of the counts concerning A. A's evidence of the indecent dealings with the two infants was, inevitably, before the jury, because each of those acts was also an inextricable part of the factual matrix of an indecent act against him. B's evidence of what happened to the girl was available as similar fact, as was his account of what had happened at the musicathon, and those matters were the subject of similar fact direction. The evidence of what happened to B in Sydney was before the jury, and was the subject of direction, as relationship evidence, not similar fact evidence, as it might have been. The only significance of that is that the Crown lost the benefit of a similar fact direction, and it was not taken into account by the jury on the A counts, as it could properly have been. Thus the fact that the counts concerning B and the appellant's children were before the jury when it considered the A matters involved no prejudice to him. There is no basis to set aside the convictions on the A counts on this score.
[94]
[64] There remains one final concern in the context of similar fact evidence. That is whether the trial judge erred in directing on it and if so whether that error led to any miscarriage of justice. There clearly was some confusion on her Honour's part as to the purpose for which the evidence was admitted. Her directions were as follows:
[95]
"The other piece of evidence that you could use to support or confirm the respective complainants' accounts relates, of course, to similar fact evidence. Now, that is a different category of evidence again and that relates both to [A] and [B]. Now, similar fact, and Mr Vasta told you about it, what it means is this: that you have got to consider what is called striking similarities between earlier acts and the acts subject to the charges before you. So in deciding that question you need to ask yourself whether the similarities are so striking that you are able to exclude coincidence beyond a reasonable doubt.
It is just simply, for example, not enough that you can consider that the defendant having been responsible for the earlier acts is the sort of person who might or even would commit the offences alleged in the charge sheet. You must go beyond that and decide whether, and to repeat the proper test, the similarities of the earlier acts and/or the later acts, and I will tell you about that in a minute, and the acts that are the subject of the charge before you are so striking that you are able to exclude coincidence beyond a reasonable doubt. And you have heard Mr Vasta say this: are the similarities so striking as to show that the defendant has put his stamp, his signature, as it were, upon the acts to lead you to conclude that he must have been the person responsible for both the earlier acts and the offences alleged?
Now, that may sound like a lot of legal babble, but what we have is, and the acts that are relevant for this are, if you look at count 28 and count 33 - if you look at count 28 that involves the checking of the underwear, if I can describe it as that, with respect to [A] in his bedroom by [KP]. That is what is alleged to have taken place. If you go to count 33 that involves [B] and that is with respect to checking whether he was wearing underpants and that was at the school sleepover.
So if you look at those you have to say to yourself with respect to both: well, do I consider the similarities between them as to be so striking that I am able to exclude coincidence beyond a reasonable doubt? You have to look at whether those similarities between those two counts, two different boys, two different sets of circumstances, two different places, are they so striking to show the defendant has put his stamp or his signature upon those acts to lead you to conclude for both the earlier acts or the alleged offences? So, in other words, are you satisfied that it is the same person who has put his stamp on the same count? And you have to look at whether it is strikingly similar. Not just, 'Oh, it sounds the same', or 'It's pretty close'. Strikingly similar.
[96]
[65] As may be seen, some of her Honour's direction was couched in terms more appropriate to a situation where the evidence was led to establish the identity of the offender, as opposed to whether he did the acts in question. The later passages, however, seem more directed to the question of modus operandi. And certainly, in a case in which the cogency of the evidence derived from the marked similarity in the way the appellant, on the Crown case, cultivated and molested the two boys, it was appropriate to tell the jury that the fundamental question was whether the similarities in conduct were so striking that they could exclude coincidence beyond reasonable doubt. Her Honour also appropriately directed the jury that mere disposition would not be enough, and that if the evidence fell short of demonstrating the appellant's stamp or signature on both sets of acts they should disregard it.
[97]
[66] Given that there was never any prospect of the jury's being in doubt about the identity of the appellant as the alleged perpetrator, the references to being satisfied that he was the person responsible may have been mildly bemusing; but I do not think they directed the jury away from the fundamental task of deciding whether the conduct was so distinctive and remarkable that it could be taken into account. The problem is perhaps not so much one of misdirection, but of the extent to which the direction canvassed something which did not need to be considered: the identity of the appellant as the offender. In any event, if the instruction does amount to a misdirection, I would consider it clearly a case for the application of the proviso as producing no miscarriage of justice. The essentials of the similar fact direction were conveyed, together with some surplusage.
[98]
[67] The appellant complained that relationship evidence ought not to have been admitted, particularly that from another jurisdiction. There were different bodies of evidence which might be regarded as relationship evidence: A's general references to uncharged acts; his account of what had happened to him in Sydney; and B's evidence of his experience with the appellant in Sydney. The last has already been discussed. A's evidence went to establishing the intensity and pervasiveness of the relationship between A and the appellant. Whether the events occurred in or out of the jurisdiction was immaterial. The jury was properly directed as to the use it could make of the evidence, and warned to avoid propensity reasoning in respect of it. There is no substance in this argument.
[99]
[68] The appellant asserted, with many references to Nudd v The Queen[23], that his counsel was incompetent. He did not always have arguments and authorities at the ready; he did not seek a stay when the appellant thought he should; he ought not to have left count nine with the notation, "not proceeded with", on the schedule of particulars. As to the last, in the scheme of things, it was most unlikely to have impinged on the jury's considerations, suggesting if anything an inadequacy in the Crown case. The complaint that counsel failed to seek a stay has already been mentioned and dismissed. An examination of the record as a whole yields no basis for criticism; counsel made tactical decisions which are readily explicable, had an appropriate command of the legal issues, and displayed considerable stamina. The appellant received a fair trial.
[100]
[69] More generally, the appellant argued that the verdicts were unreasonable. There was, he said, no evidence to support the prosecution case, because the evidence of A was uncorroborated. A's and B's accounts were inherently improbable; he could not have committed these various sexual assaults on them without discovery, particularly by the boys' mother or his own wife. Had he behaved to A in the way alleged, it was absurd to suppose that A would have agreed to go away with him to Sydney and to Lake Cootharaba; and he would certainly have warned B against accompanying the appellant to Sydney. The jury should have regarded A's evidence as a concoction, the product of his medical knowledge (A had trained as a doctor). The appellant contended that he ought not to have been convicted on the offences involving his children without their attending to give evidence. The jury must, he concluded, have been biased against him by the nature of the charges, with the result that unreasonable verdicts were reached.
[101]
[70] The jury was appropriately directed as to the care needed in scrutinising both A's and B's evidence. The appellant's children, infants at the material times, could add nothing as witnesses. The possible inconsistencies and weaknesses in various parts of the Crown case relied on by the defence were identified, with thoroughness, by the trial judge in her summing-up. There is nothing in this argument.
[102]
[71] The appellant was sentenced to two years imprisonment in respect of counts 1-8, 10-15, 17, 18, 20, 22-24 and 26-29, all involving A. On counts 30 to 32, involving A, and all of the counts involving the other children, he was sentenced to three years imprisonment.
[103]
[72] For the Attorney-General, it was argued that the maximum sentence - seven years imprisonment on the charges involving indecent dealing with children under 14 years and five years for the remaining charges - should in each case have been imposed. The relevant factors were the number of offences and complainants involved; the gross breach of trust; the use of the appellant's infant children to corrupt A and B; the impact of the offences on A and B; and the fact that some offences involved oral sex and digital penetration while in two, the use of alcohol and drugs was a feature. The appellant's counsel argued that the offences were not such as to warrant the maximum penalty and were, by reference to comparable matters, within a proper sentencing range. Meanwhile, the appellant himself sought an extension of time for leave to appeal. He explained that he had put in his appeal against conviction before he was sentenced and had hence not made any application at that time for leave to appeal against sentence. His lawyer had later advised him that the sentence was not excessive and he agreed; but it had occurred to him since that he would like it suspended in part.
[104]
[73] Much of the Attorney-General's argument on the question of sentence is obviated by the view I have taken that the convictions on the counts involving B and the appellant's own children must be set aside. That means that a significant component of the argument, the number of complainants, no longer exists. But for other reasons I do not think that the maximum sentence was called for in this case. In the 20 years between the offences and the appellant's coming to trial in Queensland, he had been sentenced to imprisonment in the Northern Territory for eight years, with a non-parole period of three years, in respect of offences committed there in 1992 and 1993. While in custody in the Northern Territory he had completed a sexual offenders' treatment programme. He had not, it appeared, re-offended since his release from custody in 1997. He had retrained as an electrician and had formed an apparently successful relationship with an adult male partner. Given those indications of rehabilitation, I think that the sentence imposed was within a sound exercise of discretion.
[105]
[74] But, notwithstanding the fact that I do not think that all the convictions can stand, I see no reason to interfere with the three year sentence imposed in respect of the offences against A, which involved intoxicating the boy with drugs and alcohol, forcing him to kiss the appellant's penis, ejaculating on him and digitally penetrating him. I would not therefore allow the application for an extension of time for leave to appeal against sentence.
[106]
[75] I would set aside the appellant's conviction on counts 16, 19, 21, 25, 33, 34 and 35 and order that the appellant be retried on those counts. It will be a matter for the Director of Public Prosecutions whether there is any utility in a further trial. I would dismiss the appeal so far as the remaining convictions are concerned. I would dismiss the Attorney-General's appeal against sentence and the appellant's application for an extension of time for leave to appeal against sentence.
[107]
[76] HELMAN J: I agree with the orders proposed by Holmes JA and with her reasons.
The same can be said for counts 24 and 25, if you look at those. They involve [A] and [C] and the interrelated event of in the bathtub, and also if you look at counts 34 and 35 they relate to [B] and they are to do with the bathtub again. So again the same rule or test has to be applied in respect of those two lots of counts.
Count 24 and 25 is [A] and it involves [C] in the bathtub. 34 and 35 [B], [C] in the bathtub. So you look at that evidence in respect of those counts and again apply that same test I just mentioned to you, and again it is not good enough to just say, 'Well, in the bathtub [C] and the child, therefore, it must be the same, it must be him who did it in respect of both', because you can look at both of those in vice versa. You can look at them to consider whether you believe beyond a reasonable doubt as to whether those offences occurred against [B] and you can equally look at those counts in respect of [A] and determine whether or not you are satisfied beyond a reasonable doubt. That is does it help you consider, to show you some support or affirm what the complainant has said, both of them, on those respective occasions? So it is a vice versa thing, okay.
Now, simply you can't use that evidence as similar fact evidence, I have just mentioned - I'll say it again - 28 and 33 relate to each other, 24 and 25 and 34 and 35 relate together. You can't just simply say, 'Well, now that I - okay, well, I'm happy to say that that's similar fact.' You can't use that evidence and say, 'Well, I'm satisfied they all happened so now I can say well, the rest of the counts he must be guilty of them, I can use that to say well, if he put his signature on those then he must have done all these other ones.' Okay. You just can't do that. It has a limited purpose and it is only - you can only use that evidence when you look at each of those respective counts in respect of those two similar type conduct if you find it to be that way, bearing in mind the test I mentioned. So striking as to show he has put his stamp or signature upon those acts.
Okay. That is fairly important. And, of course, you heard Mr Vasta. He mentioned modus operandi and that is just a term for, as he said, the type of thing that he says the Crown says [KP] did to put his stamp, as it were, on his offending behaviour, and that is what I have mentioned there.
Now, if you are not satisfied it is not strikingly similar to the degree or the test I have mentioned you can just put it out of your mind, okay. You can say, 'Well, I can just put that out of my mind', and it would be wrong to use it against the defendant, and then you go back to where you started. You just go back and look at each count individually again, okay. You can say, 'Well, I don't see it as strikingly similar. I can't see it meets that test the Judge told me', so you just put that back out of your mind and go back again to each of the counts, but you take it into account, obviously, if you think it is relevant and you take it into account if you do think it is relevant because you then say, 'Well, that's part and parcel of assessing, as it were, the complainants generally.' And as I said, you must not proceed on any basis that if you simply thought, 'Well, if he's committed these other offences he's generally the sort of person who might or even could commit these type of offences.' You must not. You must not merely say, 'Well, he's the type of person I think would', so you don't go and just merely say, 'Therefore I find that he's done it.'
...
Now, bear in mind particularly on similar fact evidence I reminded you that you can only use that evidence particularly as they relate to those charges that inter-relate, as I said. But you can't generally just simply use it and say, 'Well, if I accept that then that must be' - 'he must be guilty of all the others', okay. So you look at them in as I've explained already to you.
Now, with [B], same thing there, there's been similar fact evidence only that if you accept it, it might support or confirm the complainant's account, okay. So in other words, confirm his account. And again, that with the incidents that I've mentioned already to you about what might be strikingly similar or a signature but bear in mind simply because they're the same doesn't automatically mean that they're strikingly similar or it's the signature, the modus operandi." (Italics added)