(e) that the appellant supplied the drugs; and
(f) that both complainants slept in the same bed as the appellant in their underwear.
28 Mr Golding, who appeared for the appellant in this Court, pointed out that the last of those matters was in error. While there was evidence of CB being in the appellant's bed in his underwear, there was no such evidence in the case of MP. However, no redirection about this was sought at the trial and it is not of such significance as to have given rise to a miscarriage of justice.
29 Otherwise, Mr Golding challenged the admissibility of the evidence on two bases: firstly, that the suggestion of a sexual attraction on the part of the appellant for teenage boys lacked the probative force necessary to justify its admission as tendency evidence because of its generality and, secondly, that, while there were some similarities between the accounts of the two complainants, there were also marked dissimilarities. The circumstances in which each of them came to associate with the appellant were different, as was the nature and duration of their relationship with him. The nature and extent of the sexual activity recounted by CB differed from that alleged by MP. While the use of alcohol and drugs by CB did not appear to have played any part in his sexual encounters with the appellant, the evidence of MP carried the implication that the appellant supplied them to reduce his resistance. CB's employment by the appellant was full-time and began only after the relationship had been on foot for some time, whereas MP was offered work virtually from the outset and it was only of a casual nature.
30 This is but a broad summary of Mr Golding's fairly detailed analysis of the evidence. However, as Ellis makes clear, the admissibility of tendency evidence must be determined by the yardsticks established by the Evidence Act: whether it has significant probative value (s97) and, in criminal cases, whether its probative value substantially outweighs any prejudicial effect it may have on the accused (s101). It is the latter test which is the focus of these grounds of appeal. An examination of the similarities and dissimilarities between the accounts of two witnesses may be relevant to that test, but in a case such as this it cannot be determinative.
31 The detail of the sexual activity alleged by each of the complainants and the circumstances surrounding it is not to the point. True it is that evidence that the appellant had sexual contact with two boys in their early teens would not, of itself, be sufficient. However, that is not the only common thread in their evidence. What emerges from the testimony of each of them is an attempt by the appellant to foster a relationship with them conducive to sexual contact despite their youth and immaturity. This arises not just from his employing each of them. It is to be found in his encouraging them to drink and use drugs in a manner entirely inappropriate for boys of their age, and in his efforts, by word and deed, to loosen their natural sexual inhibitions. It is also to be noted that, on the account of both complainants, he was prepared to impose his will upon them in the teeth of their resistance.
32 Given that there was no suggestion that they had put their heads together to fabricate their evidence, the testimony of the two complainants, viewed in combination, had considerable probative force in rebutting the appellant's assertion that his association with each of them was entirely innocent. This had to be weighed against the undoubted prejudice to the appellant of having the allegations of both complainants determined by the same jury, with the danger that the jury might reason that they could accept the evidence of the complainants merely because of the similarity of their accounts. However, his Honour gave the jury the conventional warning about careful scrutiny of the evidence of each of the complainants and the need for separate consideration of each count in the indictment. No complaint was made, either at the trial or on appeal, about the adequacy of the directions in relation to this aspect of the case.
33 Whether evidence tendered as tendency evidence passes the test imposed by s101 of the Evidence Act is very much a matter of judgment in the particular case. No doubt, in many cases, including the present, it is a question about which reasonable minds might differ. However, what the appellant must show is that it was not open to his Honour to have found that that test was satisfied. I am not so persuaded and, accordingly, I would dismiss these two grounds of appeal.
34 The remaining two grounds of appeal against conviction are also linked. They relate to his Honour's directions to the jury about certain evidence said to be confirmatory of the testimony of the complainants. The complaint is that much of this evidence was not confirmatory in the relevant sense and that, in any event, his Honour's directions about it were inadequate.
35 As I have said, his Honour directed the jury about the need for careful scrutiny of the evidence of the complainants and their delay in complaint. Indeed, he gave a direction that it would be dangerous to convict the appellant on the evidence of the complainants alone, and it was in this context that he added:
However, I now tell you that there is in these cases evidence from other witnesses and sources tending to confirm the evidence given by the complainants that the offences were committed by the accused. It does not have to be evidence of a person who sees the actual offence committed. That would be what the lawyers call 'direct evidence' and no other evidence would be required … it just has to be evidence which tends to confirm the evidence of the complainants that the crime was committed and the accused committed the particular offence.
36 His Honour went on to set out a number of matters which, he said, were capable of providing confirmation. Some related to the allegations of the complainants generally, and some to particular counts. It is unnecessary to recite them all. Some were matters of background or setting, which were uncontroversial and, indeed, were the subject of a set of agreed facts. Among these were the fact that the appellant was the lessee of the premises at Mount Pleasant and South Penrith at the relevant times, and that the INXS album referred to by CB was released in October 1987 (count 1). There was independent evidence of the trip to Ulladulla at the end of 1987 (count 4), as there was of the work performed by CB and the appellant on the occasion when, according to CB, they returned to the house at South Penrith and anal intercourse took place (count 5).
37 His Honour also dealt with a number of matters more directly linked to the sexual activity alleged. These included the evidence of Steven Kennett and Marcus Mahcur about the alcohol and drugs, the evidence of Mr Kennett of seeing CB and the appellant in the "spooning" position, the evidence of Mr Mahcur about the presence of pornographic magazines in the house and his evidence of conversations in which the appellant complimented MP on his looks and admitted sexual contact with him.
38 The effect of the direction quoted above was that this evidence was capable of confirming not only that the offences were committed but that the appellant was the perpetrator of them. To that extent this part of the summing up appears to have been based upon the common law notion of corroboration, even though his Honour did not at any stage use that term. An oft quoted exposition of what amounts to corroboration is to be found in The King v Baskerville [1916] 2 KB 658, per Lord Reading CJ at 667:
We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.
39 No direction about corroboration was required: s164 Evidence Act. However, Mr Golding submitted that what his Honour said to the jury amounted to a corroboration direction and, that being so, he should have left to the jury as material capable of being corroborative only those aspects of the evidence which could meet the common law test. Much of the evidence said to be confirmatory, he argued, did not meet that test. For example, evidence of the appellant's tenancy of the premises at Mount Pleasant and South Penrith, of the release of the INXS album or of the camping trip to Ulladulla did not confirm the evidence of either complainant in any material particular. Insofar as some of the evidence established opportunity for the appellant to have committed the offences, that could not of itself amount to corroboration: Eade v The King (1924) 34 CLR 155 at 158.
40 Mr Golding acknowledged that it might have been appropriate to consider some of these items of evidence in combination, rather than in isolation, to assess their corroborative potential: R v Kalajzich & Anor (1989) 39 ACrim R 415 at 426 ff. However, he pointed out that his Honour did not analyse the evidence in that way and gave no direction to that effect. Accordingly, he argued, the jury would have been left with the impression that each of the items of evidence referred to was capable of confirming the commission of the offences by the appellant, either generally or in relation to a particular count.
41 Viewed from a common law perspective, there is some force in these arguments. However, as I have said, a direction about corroboration was not necessary. I very much doubt that the introductory passage in this part of the summing up which I have quoted would have attuned the jury to the refined notion of corroboration as lawyers understand it. Viewed as a whole, all his Honour's directions would have conveyed is that there was a body of evidence in which it was open to them to find confirmation of the account of each of the complainants, either generally or in particular respects. His Honour emphasised that it was for the jury to determine whether they accepted that evidence in whole or in part and, if so, whether they did find it confirmatory of the testimony of either complainant. He also reminded them that much of it was disputed by the appellant.
42 Obviously, in trials such as this evidence tending to confirm a complainant's account in any material respect will always be important and it will often be appropriate for it to be the subject of directions by the trial judge: R v Connors [2000] NSWCCA 470, per James J at [133]. However, as Heydon JA observed in R v Tubou [2001] NSWCCA 243 at [15], the Evidence Act has "made obsolete the technicalities of the former law on corroboration" and, in my view, it is better to avoid reference to that notion, whether expressly or by implication. That said, I am not persuaded that his Honour's directions in the present case would have diverted the jury from an appropriate assessment of the evidence said to support that of the complainants.
43 Finally, Mr Golding complained that his Honour did not direct the jury that any evidence which they did find to be confirmatory of the testimony of either of the complainants could be used for that purpose only and could not be used "as positive proof of the appellant's guilt." No such direction was sought and no authority for it was cited. Mr Golding did refer to a passage from the judgment of Gaudron J in BRS v The Queen (1977) 191 CLR 275 at 302 but, read in its context, no support for his argument is to be found in that passage. Her Honour was there dealing with the central issue in that case, that is, that a witness had given evidence which, though admissible, might have been used by the jury in an impermissible way and the trial judge had given them no guidance about how it should be approached. No such difficulty arose in the present case. Clearly, the jury were entitled to use any material which they found to be confirmatory of the evidence of either complainant in support of the conclusion of guilt.
44 I would dismiss the appeal against conviction.