Court of Appeal (Qld)|2007-12-14|Before: Williams and Muir JJA and McMurdo J, Separate reasons, for judgment of each member of the Court, each concurring as to the order made
Williams and Muir JJA and McMurdo J, Separate reasons, for judgment of each member of the Court, each concurring as to the order made
Catchwords
APPEAL AND NEW TRIAL – APPEAL-PRACTICE AND PROCEDURE –
QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME –
WHEN
REFUSED – where applicant charged with 15 counts of a sexual nature
Source
Original judgment source is linked above.
Catchwords
APPEAL AND NEW TRIAL – APPEAL-PRACTICE AND PROCEDURE –QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME –WHENREFUSED – where applicant charged with 15 counts of a sexual natureagainst two boys – where charges joined –where jury convicted onsome counts, directed to acquit on others, and acquitted on the remainder– whether charges properlyjoined – whether jury properly directedon how evidence of one complainant could be used with respect to chargesconcerningthe other complainant – whether verdicts of not guilty on somecounts inconsistent with findings of guilt on other counts –whetherprinciples of s 668E relevant when considering whether an application forextension of time should be grantedCriminal Code 1899 (Qld), s 668EArmstrong v The Queen (1990) 48 A Crim R 358, consideredHochv The Queen [1988] HCA 50
(1988) 165 CLR 292, considered
Phillips v The Queen
[2006] HCA 4
[2006] 225 CLR 303, considered
R v Conley (1982) 6 A Crim R 51,
considered
R v GAE [2000] VSCA 18
[2000] 1 VR 198, considered
R v
O’Keefe [1999] QCA 50
[2000] 1 Qd R 564, considered
R v Pfennig [1995] HCA 7
(1995)
182 CLR 461, applied
R v Salerno [1973] VicRp 5
[1973] VR 59, considered
R v
Tait [1998] QCA 304
[1999] 2 Qd R 667, considered
R v Wickham, unreported,
Supreme Court of New South Wales, Court of Criminal Appeal, 17 December 1991, BC
9101334
Sutton v The Queen [1984] HCA 5
(1984) 152 CLR 528, considered
The
Queen v Kilbourne [1973] AC 729, considered
The Queen v Boardman
[1975] AC 421, followed
Judgment (198 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
[1] WILLIAMS JA: On 13 September 2005 the applicant was convicted on five counts of indecent treatment of MS, one count of sodomy with MS, two counts of indecent treatment of PN, and four counts of sodomy with PN. There was a directed acquittal on one count indecent treatment of MS, and the jury returned verdicts of not guilty on two further sodomy counts involving PN. The head sentence was 10 years imprisonment with a recommendation for release on parole after serving three years.
[3]
[2] An application seeking an extension of time for leave to appeal was filed on 10 May 2007; supporting material was not filed until November 2007. The applicant was represented at the pre-trial hearing and at the trial by very experienced senior counsel instructed by a firm of solicitors experienced in the criminal law. It was conceded by counsel on the hearing of the application (who was not trial counsel) that counsel and the solicitors shortly after the trial advised the applicant he had no prospect of success on appeal, and that is undoubtedly the reason why no appeal was lodged within the prescribed time. Prior to trial, and subsequently, the applicant has suffered from a number of serious medical conditions and he sought to rely on those matters as explaining the failure to lodge an appeal within time. Whilst his medical condition provides relevant background to the application it does not afford an explanation for the delay. The clear inference arising from all the material is that somehow within the prison system the applicant became aware of the decision of the High Court in Phillips v The Queen [2006] HCA 4; [2006] 225 CLR 303 and considered that in the light of that decision some errors could be demonstrated in pre-trial rulings and in the summing up in his case. That is what motivated his approaching his present legal representatives and the lodging of the application for an extension of time.
[4]
[3] This Court in R v Tait [1998] QCA 304; [1999] 2 Qd R 667 held that on an application for an extension of time in which to appeal the court will examine whether there is good reason shown explaining the delay and will "consider overall whether it is in the interests of justice to grant the extension". In the present case the material does not establish an explanation for the delay; the original decision not to appeal was a conscious decision made on legal advice. The remaining issue is whether or not the applicant has been able to demonstrate that it is in the interests of justice to grant the extension. That must, of necessity, involve an assessment of the prospects of success on the hearing of an appeal, and of the prospects of the applicant successfully defending the charges if there were to be a re-trial.
[5]
[4] The applicant married WS (hereinafter referred to as W) in 1969. At about that time her mother died leaving three young children, two girls and a boy. In consequence those three children came to live in the household of the applicant and his wife W. The boy was MS, who was born on 30 April 1959. He was aged about 10 when he moved into the household of the applicant and his wife. The applicant was born on 2 March 1943 making him aged about 26 when he married. MS remained effectively a member of the household until about 1976 when he completed Year 12 at school. There were three children born to the applicant and his wife, a girl and two boys. The boys, PN and JN, were born on 7 December 1972 and in 1975 respectively. There were a number of separations between the applicant and W; the first in about 1977. The final separation was a few years later and they divorced in 1984.
[6]
[5] Before referring to the facts it is necessary to note a change to the law during the period covered by the charges on the indictment. Prior to 1 July 1975, s 210 of the Criminal Code made it an offence to indecently deal with a boy under the age of 14 years; an offender was liable to imprisonment for seven years. That provision was amended by s 6 of the Criminal Code and the Justices Act Amendment Act 1975 (Qld) so that from 1 July 1975 it became an offence to indecently deal with a boy under the age of 17 years with the offender being liable to imprisonment for five years. A paragraph was also added making it a circumstance of aggravation that the boy was under the age of 14 years; in that case the offender was liable to imprisonment for seven years. Section 210 thereafter remained in that form for purposes of this case.
[7]
[6] The following is a summary of the 15 charges on the indictment.
[8]
Count 1. Indecent dealing with MS, a boy under the age of 14 years, at Kinka Beach between 31 March 1971 and 1 June 1971. MS was about 12 years old. After dinner the applicant and MS went to the beach where they talked about sex. MS lay on the beach naked and the applicant masturbated him.
[9]
Count 2. Indecent dealing with MS, a boy under the age of 14 years, at Broadbeach between 31 July 1971 and 1 September 1971. This occurred during a family holiday at the Broadbeach Caravan Park. MS was lying on a sofa and the applicant performed oral sex on him. MS ejaculated. He was aged about 12.
[10]
Count 3. Indecent dealing with MS, a boy under the age of 14 years, at Kinka Beach between 29 April 1971 and 1 May 1972. In the laundry of the family home at Kinka Beach the applicant sucked MS' s penis. MS was then aged about 12.
[11]
Count 4. Indecent dealing with MS, a boy under the age of 14 years, between 29 April 1972 and 29 April 1973 at Kinka Beach. During horseplay in a room in the family home the applicant obtained some kitchen string and tied MS's hands behind his back and his feet. His clothes were removed. This occurred on a second occasion when the string was also attached to the penis of MS. It was painful and MS was screaming and crying. There was no particular touching alleged.
[12]
Count 5. Between 1 May 1973 and 31 December 1974 at Kinka Beach the applicant had carnal knowledge against the order of nature of MS. MS was aged between 14 and 15. The applicant got some moisturiser and asked MS to lie on his side in a foetal position. The applicant then inserted his penis into the anus of MS.
[13]
Count 6. Indecent dealing with MS, a boy under the age of 17 years, between 1 January 1975 and 31 December 1975 at Rockhampton. This was after the applicant and his wife W had separated and the applicant and the children moved to North Rockhampton. The applicant performed oral sex on MS and caused him to ejaculate. He tried to make MS ejaculate again but nothing happened. Ultimately there was a directed verdict of not guilty on this count because if the conduct occurred between 1 January and 30 June 1975 there would have been no offence committed; during that period MS was aged over 14 and s 210 prior to 1 July 1975, as noted above, required the boy to be under the age of 14.
[14]
Count 7. Indecent dealing with MS, a boy under the age of 17 years, between 1 January 1976 and 30 June 1976 at Kinka Beach. One night the applicant took MS to Causeway Lake and there was oral sex until ejaculation.
[15]
Count 8. Indecent dealing with PN, a boy under the age of 14 years, between 7 December 1978 and 6 December 1979 at Kinka Beach. The first sexual experience between the applicant and PN was in the former's bed. PN went to his father's bed after suffering nightmares. The applicant removed the bottom part of PN's pyjamas and rubbed himself against PN's bottom, using a lubricant, until ejaculation.
[16]
Count 9. Indecent dealing with PN, a boy under the age of 14 years, between 1 January 1980 and 31 December 1980 at Kinka Beach. There was evidence that conduct of the type referred to in count 8 occurred regularly. Count 9 referred to a specific occasion when the applicant fondled the testicles and penis of PN and then they performed oral sex on each other until the applicant ejaculated in PN's mouth. PN was seven or eight at the time.
[17]
Count 10. Between 7 December 1980 and 6 December 1982 at Kinka Beach the applicant had carnal knowledge of PN against the order of nature. In the applicant's bed the applicant fondled the testicles and penis of PN and then there was oral sex. Vaseline was used for lubrication and there was anal sex until the applicant ejaculated. PN was eight to nine at this stage.
[18]
Count 11. On a date unknown between 7 December 1980 and 6 December 1982 at Kinka Beach the applicant had carnal knowledge of PN against the order of nature. This was another incident that stood out in PN's mind. It started as usual with fondling and oral sex and lubricant was used. There was anal sex again. Afterwards the applicant made PN wash his bum out with soap. PN was about 10 or 11 years old at the time.
[19]
Count 12. On a date unknown between 7 December 1983 and 6 December 1985 at Kinka Beach, the applicant had carnal knowledge of PN against the order of nature. By this time PN had started to enjoy the sexual encounters. PN would stay away from school and wait for his father in the bedroom. There was oral sex, fondling and anal sex. PN was aged about 11 or 12.
[20]
Count 13. Between 1 January 1983 and 31 December 1985 at Kinka Beach, the applicant had carnal knowledge of PN against the order of nature. The evidence of PN was that the applicant took off a silver chain he was wearing and wrapped it around PN's penis; it went from the base to about halfway along the length and was tied off. According to the evidence the applicant performed oral sex and jerked the chain at the same time. There was then anal sex and the chain was jerked. On this count the jury returned a verdict of not guilty.
[21]
Count 14. Between 1 January 1983 and 31 December 1985 at Kinka Beach, the applicant had carnal knowledge of PN against the order of nature. The evidence of PN was that there was oral sex and fondling after which the applicant tied a velvet rope to the chain and this was tied off "between the bum cheeks" and back to the chain. Lubricant was used and there was anal sex. Again on this count the jury returned a verdict of not guilty.
[22]
Count 15. Between 1 May 1986 and 31 October 1987 at Kinka Beach, the applicant had carnal knowledge of PN against the order of nature. This incident occurred in PN's bed. There was fondling and oral and anal sex. PN was aged about 13 or 14.
[23]
[7] It is sufficient to say at this stage that MS and PN each gave evidence at the trial which, if accepted by the jury, would establish each of the charges. For present purposes it is of more relevance to consider the evidence of the applicant and his out of court statements which were relied on as part of the prosecution case. Suffice it to say that when asked in evidence-in-chief whether he sodomised PN the applicant answered: "No, I did not". He gave the same answer when asked whether he attempted to sodomise PN or ever indecently dealt with PN. When asked in evidence-in-chief whether there was any sexual contact between himself and MS he replied: "Yes". He said that "would've been between 1973 and 74." He said that such conduct occurred over a period of about "probably a month or so, various times through one month." He spoke of "some interaction between us" and that there was "fondling or stroking, sort of thing. ... I actually sucked his penis and it went off." He also said that he asked MS to "hold my penis". When asked was there ever any sodomy with MS he replied: "No, there was not." If the evidence of the applicant was accepted in its entirety then he committed no offence. Insofar as he admitted sexual conduct with MS that was, on his evidence, during a period when MS was over the age of 14 and before the legislation was amended in July 1975.
[24]
[8] On 16 October 2003 JN telephoned the applicant and raised with his father, amongst other things, the alleged sodomy between the applicant and PN. On 20 October 2003 MS telephoned the applicant and raised in the conversation the sexual conduct to which he had been subjected. Each of those conversations was recorded by police. Then there was a lengthy interview between a police officer and the applicant on 22 October 2003. The prosecution also led evidence at trial from a family friend, JRM; his evidence was that sometime in 2003 he confronted the applicant with the allegation that he had sodomised one or other or both of MS and PN.
[25]
[9] What to my mind is of critical importance is that on none of those four occasions did the applicant deny sexually interfering with MS or PN or sodomising each of them. More importantly, he made statements which could only reasonably be interpreted as admitting to such conduct. It is necessary to set out those instances in some detail, but the following is by no means a complete statement of the responses of the applicant which a jury could regard as an admission to the conduct in question.
[26]
[10] I turn first to the telephone call between JN and the applicant on 16 October. Early in the conversation JN referred to a confrontation on a wharf last year. That would appear to be a reference to a confrontation which occurred in about September - October 2002 and which was referred to by the complainants and the applicant in evidence. JN then said "that pretty much fucking leaves me to believe everything they said, which is a bit short on fucking details"; to that the applicant replied:
[27]
"No, well, it revolves around everything. A couple of things did happen. Really the marriage should have never went ahead from the fucking honeymoon. Should have told me she couldn't stand the sight of a man then."
[28]
[11] A little later JN referred to what he had been told by the witness JRM:
[29]
"... he said you fucking walked up the stairs and he said - I can't remember what he said you said - fucking circumstances - you don't understand the circumstances. What are the fucking circumstances?"
[30]
"Just what I was living through, that's all. You know, we didn't have a marriage. There was no sex. You kids were once a mother's because she wanted to have a baby and - oh, well, you put yourself in a position where you just get married and then your missus tells you to fuck off ...".
[31]
[12] In a further rambling response the applicant said:
[32]
"I befriended [MS], or you know, I used to sit beside his bed at night-time for somewhere to go. Some things happened. I'm a bit hazy on when, just how and what now, but [PN] when he grew up - I don't even know how old he would - he wouldn't get out of my bed, sort of thing, but I can't - I can't sort of - you know its no excuse really. ... Ever since that happened I've guarded against it."
[33]
[13] Then a little later JN said "from what I heard you fucked [PN]. I mean, that's a bit hard to fucking cope with." Two responses later, and essentially in response to what JN said as just quoted, the applicant said: "Well, that was the circumstances of the day. But as - as I say, I can't - I can't make excuses for what happened."
[34]
[14] JN then made reference to the fact that "you tied them up" and the response was: "Oh, I can't remember that, but anyhow. I don't know. I can't remember that bit. Are they saying I tied them up and rooted them?" When a little later JN asked for how long that was going on the applicant replied: "It wasn't that long".
[35]
[15] A little later in the conversation JN said: "Yeah, well, you started on [MS], and then he was gone, you started on [PN]. If I got the times right. I don't remember [MS] living there. I was too young to remember [MS] living there. So it's sort of from one to the other." To that the applicant replied: "Yeah. I never went and dragged [PN] anywhere. He kept getting into my bed, but things did happen, you know." When JN said "That's not much of an excuse", the applicant replied: "As I say, there's no excuse."
[36]
[16] Finally in that conversation JN said: "Well, you fucked my brother. That's about the worst anyone can do to me." To that the applicant replied: "Yeah, well, it - it does sound that bad." Then a short time later obviously referring back to what JN had said the applicant responded: "But it did fucking happen."
[37]
[17] As noted, a few days later MS telephoned the applicant. He began by saying he had been talking to JN and something they had been trying to put behind them kept coming back. There was reference to an apology and then the applicant said: "There's really no excuse in today's world for what happened no matter what. I realise that. I didn't get a chance to apologise because I - I didn't even see it coming." A little later MS said: "Just imagine someone sucking and tying an old fellow off, that kills me. I don't know why you hankered - could have stood for 30 years and seen that sort of thing and looked at that sort of child and - thought it was okay." The applicant responded by saying that he did not think it was "okay" and went on to say: "I had to make sure it could never happen again and I've been on my guard for all these years to make sure it couldn't." A little later the applicant said he was "sorry it ever happened."
[38]
[18] Then MS said: "The first time you ever took me down the beach ... you told me you were going to teach me about the birds and the bees." To that the applicant replied: "No, I am not sure just how it happened but it did happen." He then went on to say that he was "sorry" and: "There's nothing I can do about it now. I am really sorry."
[39]
[19] When MS said: "You tied me feet and my hands behind me back and then you tied a piece of string over to me dick and it pulled" the applicant replied: "But didn't you say, "it's hurting" or anything like that?"
[40]
[20] A little later when MS asked: "Is it worth asking you why you did it?"; the applicant replied:
[41]
"I lived a sexless life with [W], hey. I think I've told you all this before anyhow but it doesn't make it any difference. ... Things - things happen. It's a different environment now sort of thing but if I forced or put a lot of force on you I'm very sorry about that because I don't think - I sort of didn't intend to anyhow, but I - I wanted to make clear in all the years I've been with you the kids were perfectly safe sort of thing."
[42]
[21] Finally in that conversation the applicant said:
[43]
"Yeah, well I'm very sorry everything like this has happened the way it has. I really am. I can't apologise more for it, and looking back at everything, you know, there is no excuse...".
[44]
[22] At this point I revert to the evidence of the witness JRM. He had been a family friend of the applicant for more than 20 years and knew the whole family. He became aware in about January 2003 of allegations being made by both MS and PN. After that there was an occasion when the applicant came to JRM's home. It appears that would have been early in 2003. In his evidence-in-chief JRM said that when the applicant arrived he said that he had seen JRM's wife down the street and she did not acknowledge him. According to JRM he then said: "It's probably because she knows what you've been up to." To that, according to JRM's evidence-in-chief, the applicant replied: "Oh, you've been talking to [PN] and [MS]". JRM then said: "Yes, I have, are you telling me that it's not true?" To that the applicant replied: "No. But there's circumstances you wouldn't understand."
[45]
[23] Under cross-examination it was put to JRM that there was only reference to PN and no reference to MS in the conversation. It was put to him that in his initial statement to the police there was only reference to PN. JRM maintained in oral evidence that the conversation referred to both PN and MS. It was never put to JRM that the applicant did not respond: "But there's circumstances you wouldn't understand."
[46]
[24] I turn now to the record of interview of 22 October 2003. The interviewing officer informed the applicant that a complaint had been received that he had sexually abused PN "at Kinka Beach and also at another location" and the interviewer then asked: "What can you tell me about that?"; the applicant replied:
[47]
"I don't know about other locations. ... but the kids used to hop into bed all the time. ... So, that's when - oh, whatever happened happened then, sort of thing. I'm a bit hazy as to what happened and I've - I've just been told that, um, you know, I did things. I'm not sure with PN. Um, I can't see - there - there may have been fondling, yet can I remember something did happen, you know."
[48]
[25] Shortly after that he was asked "what do you remember happening with [PN]?", to which he replied: "Well other than the fondling and that with him in bed ...". A little later he went on:
[49]
"Just how far it went oh it's - it's difficult for me to say, you know. ... I've been told that I had sex with him and - and, you know - well, I don't know. I don't know. I can't image that I had a full sexual act with him, you know. Oh, well, not - I'm only guessing."
[50]
[26] He told the investigating officer that "ever since this happened, um, I've taken action so that I will never be left alone or there's no young person can point their finger at me, ever, you know."
[51]
[27] The interviewing officer then asked him if anything happened with MS. His relevant response was as follows:
[52]
"...because of the situation between [W] and myself I used to walk down to the beach of a night time or walk - get out of bed and then I found myself sitting beside [MS's] bed just for somewhere to go and sit sort of thing and after a period of time this led to - to a bit of interaction between us. ... I don't have details of what actually happened, I honestly don't but there was - there was - there's probably fondling and sucking of the genitals ... some sucking of the - of the penis."
[53]
[28] A little later on in the interview the applicant said in the course of a lengthy response:
[54]
"I didn't see this coming when they approached me last year. Had no indication from either of them that this was coming ... I can't understand why on both of them, why haven't they said something before because [PN] has been with me up until years ago when he branched out, sort of thing, and, um, so you know it could have been talked about. [PN] did attempt to talk about it one night ... he said something about what happened ...".
[55]
[29] He was then specifically asked about "sucking of the genitals" with MS and he replied: "I did it to him. ... I never ever made anybody do anything to me that I can remember anyway. God, I doubt it."
[56]
[30] Then a little later the applicant went on to say:
[57]
"They'd obviously talked that there was string involved and [JN] told me a frightening thing that I tied these up, sort of thing, and while he didn't go so far as to say that I had sexual intercourse with them when they were tied up but, ah, I was horrified to hear this, um, [MS] again said the other day that I tied him up in a fashion and he said he cried. Um, maybe, you know, I can remember a bit about string thinking back trying to sort of re-do it."
[58]
[31] Later he said that he had "no indication that anything was hurting or that or [MS] said that he cried." He referred to it being "a form of pleasure more so than pain".
[59]
[32] In relation to the complaint of MS he said: "...the bit about the beach there, we did go for a walk on the beach and that's where it all started. Ah, as to whether he had his clothes off or not I'm not sure about that. I can't remember that."
[60]
[33] When more of the allegations of MS were put to him, including the allegation of sodomy, he replied:
[61]
"No, I have no recollection of having the sex act, um, maybe, no, I don't know. Maybe I tried. I - I'm not sure. Um, no, I can't sort of add, I can't - I can't imagine that I had a full sex act ...".
[62]
[34] When the allegation of PN that the applicant rubbed his penis between the "bum cheeks" of PN until ejaculation was put to the applicant, he replied: "No, I can't remember that happening. Not in the detail they seem to have thought up ...". When the allegation of PN was put that he was sodomised causing him to cry the applicant responded: "I can't imagine doing something to a person who was crying and carrying on, if this was the case. There may have been attempts to penetrate, but I can't imagine that - that a full sexual act or penetration went all the way."
[63]
[35] A little later on he said he could not "remember any details to the details that they remember".
[64]
[36] Later on, again dealing with the allegations of PN his response included the statement: "Most times if anything happened it was just fooling around." When asked what he meant by that expression he said: "Well fondling more than anything. This - this I don't recall all this penetration business at all. There may have been attempts but he is going on like - saying that I was inflicting pain all this time ...".
[65]
[37] In relation to the phone conversation with MS the applicant admitted to the interviewing officer that in the course of it he said: "I'm very sorry that it ever happened".
[66]
[38] Further in relation to the allegations of PN the applicant said: "I can't say that nothing happened but I think he's making a lot more out of it than what really did happen ...".
[67]
[39] When the interviewer asked whether the applicant thought "morally speaking that what you were doing with MS and PN, due to their ages would be something that would be considered right or wrong", he responded: "I must have had some misgivings about it because I vowed and declared that it would never happen again."
[68]
[40] Finally, towards the end of the interview the applicant said: "... this has got to be brought out and I've got to live with it."
[69]
[41] In evidence-in-chief the applicant was asked: "Did you intend, in anything you said to the police in that interview on 22 October 2003, to convey that you are admitting to conduct which is alleged in the charges on this indictment?"; to that the applicant replied: "No, I don't." It can be accepted that as at October 2003 the applicant was suffering advanced cancer in a number of his bodily organs and was as a result suffering stress. Indeed during the interview with the police he took some medication. But apart from the matters I have referred to in this paragraph the applicant offered no explanation in evidence-in-chief for what he said, particularly in the interview with police, but also in the phone conversations with MS and JN.
[70]
[42] Under cross-examination he said with respect to his conduct in fondling the genitals of MS and sucking his penis: "I didn't go seeking it; it just happened."
[71]
[43] When the prosecutor put to him some of the answers given in the police interview and it was put to him they amounted to admissions, he responded: "At time, if you read that sort of thing, I didn't know anything about it and I'm trying to discuss with the officer my mushed up brain at the time and sort of that's just what came out."
[72]
[44] When cross-examined about the allegations of PN he said that PN would come into his bed and cuddle up; he then went on to say that any touching was "accidental".
[73]
[45] When it was put to the applicant during cross-examination that he had, in answer to police questioning, suggested there may have been attempt to penetrate he responded: "I agree on that. I was just sort of trying to work out answers, that's all we're doing there, talking. I can't imagine, as I say there, you know, it's - it just didn't happen."
[74]
[46] With respect to the phone conversation with JN he referred to statements he made as "another crazy answer".
[75]
[47] Finally it should be noted that towards the end of his cross-examination the applicant specifically asserted that the sexual conduct with MS to which he admitted occurred only when MS was aged 14. On his evidence that was, of course, at a time when the offence could only be committed with a boy under the age of 14.
[76]
[48] On the hearing in this Court counsel for the applicant contended that it was in the interests of justice to grant the extension of time because the charges were improperly joined, the directions given to the jury as to the use they could make of the evidence of one complainant in the case against the other were wrong or inadequate, and the verdicts of not guilty on counts 13 and 14 were inconsistent with the verdicts on the remaining counts involving PN.
[77]
[49] There was a pre-trial hearing at which senior counsel then acting for the applicant submitted that the charges involving MS should not be joined with the charges involving PN. The primary judge referred to the then relevant authorities in the High Court, and in this Court, and concluded that there were such similarities between the accounts of the two complainants as justified the joinder. There was reference in particular to the accounts given by each complainant of tying up and the way that was done.
[78]
[50] The ruling was correct on the authorities cited at first instance, but it was submitted that doubt was thrown on the ruling by the decision of the High Court in Phillips. However, to my mind, it does not follow from the reasoning in Phillips that the joinder was not justified given the similarities in the evidence of the complainants. I do not need to take that aspect of the matter further.
[79]
[51] The critical passages in the summing up attacked by counsel for the applicant were the following:
[80]
"However, the evidence of [MS] can be used by you in the case relating to the allegations made by [PN] and vice versa. But it can only be used if you are satisfied that their respective evidence is independent and what I mean by that is that there is no real risk that their evidence is untrue because they have got together to make up a similar story, to make up similar lies.
[81]
You would have to be satisfied that they have not colluded together to contact [sic] false allegations against [the applicant]. Obviously it cannot be collusion if you agree to give truthful evidence. The defence argues that the allegations of both [PN] and [MS] are untrue.
[82]
However, if you are satisfied that there is no real risk of either [MS] or [PN] concocting their allegations, then you may have regard to the evidence of [MS] when considering the charges relating to [PN] and vice versa.
[83]
You may only however, use the evidence of [MS] or [PN] with respect to the charges involving the other, to measure the probability of both of them telling similar lies. ...
[84]
You can use the combined evidence of [MS] and [PN] in judging the reliability of each of [MS] and [PN] separately but you cannot come to the conclusion, for example that if you accepted [MS's] evidence as being truthful and reliable that therefore [the applicant] is the sort of person who would have committed the offence alleged by [PN], that would not be admissible."
[85]
[52] If the Bench Book was followed the trial judge should have directed the jury that they had to be satisfied on all the evidence that there was no reasonable view of the evidence of A other than that the defendant was guilty of the offences charged involving A before they could use the evidence of A with respect to the charges involving complainant B, and vice versa. The last passage quoted from the summing up was deficient in that regard. In the circumstances I do not find it necessary to consider whether the summing up could be supported as suggested by McMurdo J.
[86]
[53] The third ground relied on by counsel for the applicant was the alleged inconsistency in the verdicts with respect to PN. That submission is not made out. As already noted, count 13 involved the use of a silver chain and count 14 the use of something described as a velvet rope attached to the chain. The applicant gave evidence denying he ever wore such items. Further, and perhaps more importantly, the evidence of PN is difficult to follow in regard to the way in which his penis and other parts of his body were tied during the sexual encounter in question. That consideration may have been sufficient to cause a reasonable jury to have doubts about the specific charge, though satisfied overall as to the truthfulness of the evidence of PN. Further, the jury could well have regarded the various responses by the applicant quoted above as confirming or corroborating the general allegations made by PN but not the allegations specifically contained in counts 13 and 14. There is no necessary inconsistency in the verdicts.
[87]
[54] If an extension of time was granted and the Court concluded that in the light of subsequent authority the trial judge erred in permitting the joinder of the charges and/or that there was error in the summing up because the Bench Book was not followed it would be necessary to consider the proviso (s 668E(1A) of the Criminal Code). If the proviso was not applied the only order reasonably open would be to order a re-trial on all the counts on which the applicant was found guilty. That would involve the complainants having to give evidence again and it is, in my view, legitimate for this Court to consider on this application the prospect of the applicant successfully defending the charges in the light of all the evidence to which I have referred, particularly the evidence from the applicant himself strongly suggesting guilt. When the Court is considering an application to extend time when almost two years have elapsed since conviction it is appropriate to have regard to overall strength of the evidence against the applicant. If the court can conclude that the applicant has not been wrongly convicted, notwithstanding possible errors at trial, it is not in the interests of justice for there to be a further trial. As with the proviso, the test is whether a substantial miscarriage of justice has actually occurred.
[88]
[55] In the present case the evidence clearly establishes that on at least four occasions when confronted with allegations of sodomy against MS and PN not only did the applicant not deny the allegations, but he proffered statements conveying the clear inference that he was guilty of that offence with respect to each complainant. Many of the statements made by the applicant, particularly in the police interview, were spontaneous admissions of guilt. The evidence is such that if there were a retrial the applicant would be convicted.
[89]
[56] It is also relevant, in my view, that in the telephone conversation with MS, and in the police interview regarding the sexual contact with MS, the applicant did not specifically restrict the admitted sexual conduct to that window of opportunity when MS was 14 and the legislation had not been amended. His attempt in evidence at trial to avoid criminal conviction by limiting the sexual contact with MS to that period of time after MS's 14th birthday and before the legislation was amended is in such sharp contrast to what he said in his out of court statements as to be not only damaging to his credibility, but arguably confirmatory of the truth of the complaints made against him.
[90]
[57] In all the circumstances I have come to the conclusion that no substantial miscarriage of justice has occurred.
[91]
[58] For all of those reasons an extension of time to appeal should not be granted. The application should be dismissed.
[92]
[59] MUIR JA: I agree with the reasons of Williams JA and with his proposed orders. I have had the advantage also of reading the reasons of McMurdo J. I agree with his Honour's reasons on the question of joinder. Because I am in agreement with the approach to the issues taken in the reasons of Williams JA, I have not found it necessary to resolve the questions addressed by McMurdo J in relation to similar fact evidence.
[93]
[60] McMURDO J: I agree with the order proposed by Williams JA although for different reasons. I would not be persuaded to apply the proviso[1] if the applicant was allowed to appeal. The prosecution case was strong but the applicant gave evidence denying each count, and we have not had the opportunity of seeing that evidence being given. Therefore, I have considered each of the proposed grounds of appeal. In my conclusion, the summing up was not deficient, at least as to cause a miscarriage of justice, and nor would an appeal have succeeded upon any of the other grounds.
[94]
[61] I gratefully adopt the detailed description of the facts within the judgment of Williams JA. The first ground of the proposed appeal is that all of these counts should not have been joined. Prior to the commencement of the trial, the applicant applied for an order that the offences involving one complainant be tried separately from those involving the other. The argument was that the evidence of one complainant was not admissible for the counts involving the other complainant, because there was an insufficient similarity between the two groups of charges for that evidence to have the requisite probative value or cogency that would justify its admission. Her Honour cited what she said were the relevant authorities, including Hoch v The Queen;[2] Pfennig v The Queen[3] and R v O'Keefe,[4] before setting out the two questions formulated in O'Keefe.[5] The applicant argues that her Honour addressed the wrong questions, O'Keefe having since been disapproved in Phillips v The Queen.[6] However to the extent that she did not reason according to Pfennig, I am not persuaded that her conclusion to refuse a separate trial was wrong and resulted a miscarriage of justice.
[95]
[62] Her Honour set out what she saw as the similarities between the respective accounts of the complainants as follows:
[96]
(b) the defendant was in an actual or de facto father/son relationship with each complainant;
[97]
(c) the abuse of MPS commenced when he was 12 years old when he went to reside with his sister and the defendant and the abuse of PTN commenced when he was six years old, about the time MPS left the household;
[98]
(d) the sexual behaviour with respect to each complainant did involve sodomy;
[99]
(e) the sexual behaviour with respect to each complainant involved incidents whereby the defendant tied the complainant's hands and legs behind his back and tied a string or chain around the base of the complainant's penis;
[100]
(f) both complainants resided with the accused and was related to him;
[101]
(g) the accused was in a position of trust and authority over each complainant;
[102]
(h) the alleged offences committed by the defendant upon each of the complainants were committed when he was alone with them (apart from one incident where in relation to MPS another male was present), when other members of the household were asleep or when nobody else could see the defendant with the complainants."
[103]
Her Honour then referred to the dissimilarities argued for the applicant:
[104]
(a) the charges with respect to each complainant, particularly the charges of sodomy, involve substantially different intervals of time;
[105]
(b) the evidence admissible in respect to the two sets of charges is substantially different, particularly PTN made preliminary complaints between 1993 and 2003 whereas MPS did not complain until September 2002;
[106]
(c) the sexual conduct in the two sets of charges is substantially different; and
[107]
(d) the applicants' defence in relation to the two sets of charges is different."
[108]
"[14] Such evidence has variously been referred to as 'similar fact' or 'propensity' evidence and its probative value lies in its ability to support or confirm the direct evidence. In this case the evidence of each complainant supports the evidence of the other as to the commission of the offences charged because of the similarity of the particulars of each account.
[109]
[15] The similarities between the accounts of the two complainants, and the characteristics of the two complainants themselves, as identified in paragraph 10 illustrate that in this case the evidence of each complainant has significant probative value in the case against the defendant regarding the other. Where, as I assume is the case here, the defendant challenges the truth of each complainant's allegations, the probative value of each complainant's evidence in the case against the defendant in relation to the other complainant is the objective improbability of one complainant telling a similar lie to the account given by the other.
[110]
[16] Put another way, the probative value of the contested evidence lies in the objective improbability of it being simply coincidence that the accounts of each complainant are so similar.
[111]
[17] In particular, the accounts both complainants give of the use of rope or string in specific sexual encounters, the way in which they were tied, and the sexual behaviour which followed, add weight to the proposition that it is most improbable that each complainant would tell similar lies.
[112]
[18] Obviously there are differences in the detail of the allegations made against the defendant by each of the two complainants. The accounts of sexual conduct do contain a number of points of difference. However, there was some difference in the respective reactions of the two boys to that sexual conduct. For example, MPS speaks of being 'embarrassed', 'upset' and 'ashamed' and on occasions crying, whereas PTN speaks of 'starting to enjoy sex' when he was about 12 years old. The personal characteristics of each complainant and the different responses they had to this sexual conduct is a logical explanation to differences in detail."
[113]
[64] As the Court said in Phillips v The Queen,[7] it is essential to identify the issue or issues on which the similar fact evidence is tendered for its probative value to be assessed.[8] The issue here on each count was whether an offence had been committed. The issue was not whether it was the appellant who had committed the offence. The contest concerned whether the conduct described by the complainant did occur. The prosecution was arguing that the similarity of the respective versions was so strong that each version had a high probative value in the proof that the events, according to the other version, did happen.
[114]
[65] The offences involving the use of string, rope or a chain have that necessary degree of similarity, as was all but conceded by counsel for the applicant in this Court. Absent those counts, the remaining counts for the respective complainants would not have had the necessary similarity. But given the striking similarity between those counts involving "tying", what should the trial judge have done about joinder? That similarity made the evidence as to each of those events admissible in the proof of the others in the same category. In other words, a joinder of that group of charges would have been permissible. But should the other counts for each complainant have been joined also?
[115]
[66] The difficulty with a trial involving only this group of offences would have been that it may have provided the jury with quite an artificial view of the circumstances of the alleged offences. To take the case of count 4, involving the complainant MS, the jury may have derived the impression that the complainant was saying that the applicant did these things "out of the blue". The evidence of the earlier counts involving MS would be relevant to this count because it would tend to explain why the applicant would think that he could do this and why the complainant allowed this conduct, relevant to this count, to occur. So the evidence of those earlier acts, the subject of counts 1, 2 and 3, would be admissible for its probative value in proving the relevant nature of the relationship between the complainant and the applicant. In R v GAE,[9] Callaway JA said:
[116]
"Where there is only one count on a presentment, a truthful complainant is likely to be disbelieved if relationship evidence is excluded and in consequence the jury derives the impression that the complainant is saying that the accused molested him or her out of the blue. In such a case relationship evidence is clearly probative and its probative value usually transcends is prejudicial effect".
[117]
In R v Wickham[10] Gleeson CJ, with whom Carruthers and Mathews JJ agreed, described the relevance of such evidence, and in particular its relevance in proving certain aspects of a relationship, as follows:
[118]
"As in the present case, such evidence will often be relevant, and tend to make more credible the evidence of the complainant, in at least two ways. (Questions of fact and degree may be involved, and these two ways are not intended to be exhaustive).
[119]
First, the evidence may establish a sexual relationship with makes the complainant's allegations more likely to be true. The case that is usually taken as an illustration of this is R v Ball [1911] AC 47. In Harriman (167 CLR at 631) McHugh J said: 'Although R v Ball is often treated as a similar fact case, the evidence proving previous acts of incest in that case was admissible in my opinion because it tended to prove the nature of the relationship between the brother and sister. Their sexual relationship, together with evidence which showed that they slept in the same bed, made it likely that incest took place between the dates charged in the indictment'.
The relationship in question need not be completely mutual, and the emotions or tendencies involved need not be shared for there to be a relevant relationship. The expression 'guilty passion' is sometimes used in relation to an accused. It conveys an idea that most people would recognise as being of significance in determining whether a particular incident of a sexual nature has occurred. If past conduct shows that a child is an object of a parent's sexual desire then that may well make more credible an allegation that a particular alleged sexual incident occurred between them.
[122]
Secondly, the evidence may constitute an essential aid to the understanding of an account or description of words or conduct. It will often be the case that it would be difficult, or impossible, to understand, or appreciate the full significance of, a complainant's account of the events relating to a particular incident without knowing that had gone before. A bare description of the conduct the subject of a particular charge may be difficult to evaluate, and perhaps misleading, if it stood alone as an account of an apparently isolated incident. ..."
[123]
[67] Similarly if a jury hears evidence of only one count without reference to subsequent acts there is the risk that the jury might reason that it was unlikely that such an isolated act would occur without its being repeated.[11] (That became more relevant to the counts involving PN than those involving MS, because of the applicant's concession that he dealt with MS but only after he turned 14).
[124]
[68] In this case, there was a similarity not only between the respective accounts of offences involving "tying", but in the respective accounts of the course of conduct involving certain types of indecent dealing, the subject of other counts, leading to the conduct the subject of those particular counts. For this further reason, the evidence of those other counts was admissible for counts involving each complainant.
[125]
[69] The principal argument about the summing up is that the trial judge should have told the jury that "it must be satisfied beyond reasonable doubt the alleged similar acts occurred before it can use such evidence". For this proposition, the applicant cites Armstrong v The Queen.[12] It is argued that the appropriate direction for a case such as this is that given by Mitchell J, as set out in the judgment of Brennan J, in Sutton v The Queen.[13] The applicant also says that this is the effect of the direction in the current Bench Book at para 50.4, as follows:
[126]
"If you are satisfied that there is no real risk of concoction, then when considering the evidence about any one instant or allegation from any one complainant, such as the evidence of (complainant A) (whom you have judged credible and reliable) you may have regard to the evidence of (all the other complainants) whom you have likewise considered credible and reliable. The prosecution argued that there is no reasonable view of the evidence of those other complainants, and the evidence of complainant A, other than that the defendant is guilty as alleged by complainant A, and that the same applies when considering the evidence of each complainant.
[127]
The evidence of (any one complainant) (whom you accept as credible and reliable) can be used by you as a circumstance which might confirm, support, or strengthen the evidence of (complainant A); but only if you are satisfied on all the evidence you have heard that there is no reasonable view of it other than that the defendant is guilty of the offences involving complainant A, and that the possibility of the complainants are (all) lying can be rejected."
[128]
[70] The respondent argues that a sufficient direction was given in this passage:
[129]
"I am simply stating to you that if you find that the only conclusion to be drawn is that [PN] or [MS] are telling the truth about relevant particulars with respect to these charges, then you may use their respective evidence when considering the charges relating to the other one."
[130]
"However, if you are satisfied that there is no real risk of either [MS] or [PN] concocting their allegations, then you may have regard to the evidence of [MS] when considering the charges relating to [PN] and vice versa.
[131]
You may only however, use the evidence of [MS] or [PN] with respect to the charges involving the other, to measure the probability of both of them telling similar lies. And in this regard, you are looking at particular details or particulars of the offences. For instance, the fact that each of them referred to the use of rope, to tying up. Each of them referred to acts of sodomy.
[132]
You can use the combined evidence of [MS] and [PN] in judging the reliability of each of [MS] and [PN] separately but you cannot come to the conclusion, for example, that if you accepted [MS's] evidence as being truthful and reliable that therefore [the defendant] is the sort of person who would have committed the offences alleged by [PN], that would not be admissible."
[133]
[71] The direction in the Bench Book reflects the two functions of similar fact evidence in a case such as this. Those functions were described by Mason CJ, Wilson and Gaudron JJ in Hoch as follows:[14]
[134]
"In cases such as the present the similar fact evidence serves two functions. Its first function is, as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by other complainants. Its second function is to serve as circumstantial evidence of the happening of the event or events in issue. In relation to both functions the evidence, being circumstantial evidence, has probative value only if it bears no reasonable explanation other than the happening of the events in issue. In cases where there is a possibility of joint concoction there is another rational view of the evidence. That rational view - viz. joint concoction - is inconsistent both with the guilt of the accused person and with the improbability of the complainants having concocted similar lies. It thus destroys the probative value of the evidence which is a condition precedent to its admissibility".
[135]
[72] It is the function of corroboration which explains the references to the evidence being otherwise "credible and reliable" within the Bench Book direction. The relevant principle was described by Lord Hailsham in The Queen v Kilbourne:[15]
[136]
"Corroboration is only required or afforded if the witness requiring corroboration or giving it is otherwise credible. If his evidence is not credible, a witness's testimony should be rejected and the accused acquitted, even if there could be found evidence capable of being corroboration in other testimony. Corroboration can only be afforded to or by a witness who is otherwise to be believed. If a witness's testimony falls of its own inanition the question of his needing, or being capable of giving, corroboration does not arise".
[137]
In Boardman Lord Hailsham said, by reference to that passage from his speech in Kilbourne:[16]
[138]
"I make this point because at one time counsel seemed to be arguing from a remark of mine in Reg. v. Kilbourne, at p.746, to the effect that, before S's evidence was used to corroborate H, it was necessary for the jury to accept it without doubt and vice versa. With respect, this is quite wrong and if accepted, would overthrow both Reg v Kilbourne and Reg v Hester[1973] A.C. 296 and, indeed, Rex v Sims[1946] K.B. 531, Moorov v HM Advocate, 1930 J.C. 68 and other cases. When a jury is satisfied beyond doubt that a given witness is telling the truth, they can, after a suitable warning, convict without corroboration. What I said in Reg v Kilbourne was not that to give or require corroboration a witness must be believed without doubt. What I said, and what I mean, was that unless a witness's evidence was intrinsically credible he could neither afford corroboration nor be thought to require it".[17]
[139]
From that passage the difference between corroboration and the applicant's proposition is made clear. One function of similar fact evidence is to provide corroboration but to do that the similar fact evidence need not of itself "be believed without doubt".
[140]
[73] This case is different from where the issue is whether it was the defendant who committed the offence, such as Sutton v The Queen,[18] where the appellant had been charged with several counts of rape involving three complainants. The substantial issue in each case was that of identification. Gibbs CJ said that no reasonable jury could have failed to be satisfied that each of the three complainants had been the victim of a sexual assault of the kind charged and there was no suggestion that any of the girls had consented or that the assailant believed that there had been consent to his actions. The issue was whether the applicant was the person who had committed the crimes.[19] The similarity between the facts of the offences was the basis for the prosecution's argument that it was the same offender in each case. From there, the prosecution had to prove that this person was the defendant. It was in that context that Mitchell J directed the jury that they could convict the defendant if satisfied that he committed the crimes alleged in respect of one complainant, and if satisfied that the same person committed all of the crimes.[20]
[141]
[74] Again in The Queen v Armstrong, the issue was whether it was the defendant who had committed the offences, which were of housebreaking and larceny. The prosecution sought to prove that the offences were committed by the one person, arguing the extent of their similarity. It was in this context that Cox J said:[21]
[142]
"In many cases of similar fact evidence a careful and clear warning will be necessary. Where propensity evidence is relied upon the jury should be told that, when considering any count in the information and drawing a conclusion with respect to it as to, say, an issue of identification, they must be satisfied, before using that evidence in relation to any other count or counts, that the accused had in fact committed the offence or done the relevant act disclosed by that evidence: see Salerno[1973] VicRp 5; [1973] VR 59." (emphasis added)
[143]
Salerno was also a case of this kind: the similar fact evidence was tendered on the issue of whether the offences had been committed by the one person. The Full Court there said:[22]
[144]
"Mr Ross first argued that the learned judge failed to direct the jury that, when considering any count in the presentment, they must be satisfied, before using the evidence given in relation to any other count or counts on the issue of identification, that the accused had committed the offence or done the acts disclosed by such other evidence.
[145]
That such a finding is essential to the use of similar fact evidence is shown by the passage from R v Fogarty[1959] VicRp 79; [1959] VR 594. It is obvious that the evidence given in relation to other counts cannot assist to identify the accused with the particular count under consideration unless the jury is first satisfied that the acts disclosed by such other evidence were done by the accused. Failing that proof and satisfaction by the jury, there would be no method or technique proved to have been adopted by the accused with which to connect him with the offence charged and the count under consideration."
[146]
[75] In the present case, the issue here was different, resulting in a different use of the similar fact evidence. The difference was described by Mason CJ, Wilson and Gaudron JJ in Hoch as follows:[23]
[147]
"Where the happening of the matters said to constitute similar facts is not in dispute and there is evidence to connect the accused person with one or more of the happenings evidence of those similar facts may render it objectively improbable that a person other than the accused committed the act in question, that the relevant act was unintended, or that it occurred innocently or fortuitously. The similar fact evidence is then admissible as evidence relevant to that issue.
[148]
Where, as here, an accused person disputes the happenings which are said to bear a sufficient similarity to each other as to make evidence on one happening admissible in proof of the others, similar fact evidence bears a different complexion for the issue is whether the acts which are said to be similar occurred at all. In such a case the evidence has variously been said to be relevant to negative innocent association (R v Sims or as corroboration (Reg v Kilbourne)) but the better view would seem to be that it is relevant to prove the commission of the disputed acts: see Boardman, per Lord Hailsham and Lord Cross; Sutton, per Deane J. Certainly that is the thrust of its probative value. That value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred. So much is clear from the well-known passage in the speech of Lord Wilberforce in Boardman ..."
[149]
The passage from the speech of Lord Wilberforce in The Queen v Boardman is as follows:[24]
[150]
"This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence".
[151]
[76] The present case, like Hoch and Boardman, involved the issue of whether an offence had been committed and the use of similar fact evidence to prove that it had been committed. The proper use of the evidence was as explained by Lord Cross of Chelsea in Boardman as follows:[25]
[152]
"In such cases as Rex v Sims[1946] K.B. 531 or this case on the other hand there is, it is true, some direct evidence that the offence was committed by the accused but he says that that evidence is false and the similar fact evidence - which he says is also false - is sought to be let in in order to strengthen the case for saying that his denials are untrue. In such circumstances the first question which arises is obviously whether his accusers may not have put their heads together to concoct false evidence and if there is any real chance of this having occurred the similar fact evidence must be excluded. In Reg v Kilbourne[1973] A.C. 729 it was only allowed to be given by boys of a different group from the boy an alleged offence against whom was being considered. But even if collaboration is out of the way it remains possible that the charge made by the complainant is false and that it is simply a coincidence that others should be making or should have made independently allegations of a similar character against the accused. The likelihood of such a coincidence obviously becomes less and less the more people there are who make the similar allegations and the more striking are the similarities in the various stories. In the end, as I have said, it is a question of degree."
[153]
There is no suggestion in the speeches in Boardman that the similar fact evidence could be used only if the jury was otherwise satisfied beyond reasonable doubt that the similar fact evidence was true.
[154]
[77] In Pfennig, Mason CJ, Deane and Dawson JJ said:[26]
[155]
"Where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged. The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred. Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed."
[156]
That passage has a relevance to a case of the present kind, where the similar fact evidence that went to an issue of "the commission of the acts charged". There is no indication in that passage, or otherwise in Pfennig, of the proposition now advanced by the applicant.
[157]
[78] In a case such as this, the probative value of the evidence of each complainant to the proof of the case involving the other complainant is in the improbability of their versions being so similar unless the events occurred. Once collusion or another "cause common to the witnesses" can be excluded, the possibilities are, as Lord Wilberforce said in Boardman, that the "facts testified to by the several witnesses ... either all be true, or have arisen from ... pure coincidence". Where there is the requisite degree of similarity, it is the fact of that similarity which, absent collusion, can leave the jury with no rational conclusion but that each complainant must be telling the truth. As the Court of Criminal Appeal said in R v Sims,[27] in a passage set in the speech of Lord Wilberforce in Boardman:[28]
[158]
"The evidence of each man was that the accused invited him into the house and there committed the acts charged. The acts they describe bear a striking similarity. That is a special feature sufficient in itself to justify the admissibility of the evidence; ... The probative force of all the acts together is much greater than one alone; for, whereas the jury might think that one man might be telling an untruth, three or four are hardly likely to tell the same untruth unless they were conspiring together. If there is nothing to suggest a conspiracy their evidence would seem to be overwhelming."
[159]
It is the combined force of the two versions which provides the particular probative value in this type of case in persuading the jury that each complainant is truthful. What the applicant says should have been the direction would be inapt in a case such as this.
[160]
[79] In the first of the passages from the summing up which I have set out above at [11], her Honour may have overstated what was required for the similar fact evidence to serve its function as corroboration. It was sufficient for the jury to be told that the evidence was credible or reliable, in the sense discussed by Lord Hailsham in both Kilbourne and Boardman. In the second of the passages which I have set out, her Honour directed the jury as to the use they could make of the combination of the evidence of the two complainants in the sense of that second function of similar fact evidence described in Hoch. In the same passage her Honour gave a warning about using it by way of improper propensity reasoning. Overall her Honour has sufficiently directed the jury about this evidence. Probably the directions could have been clearer, but I am not persuaded that there was any miscarriage of justice.
[161]
[80] It follows that I would reject the principal argument relating to the summing up.
[162]
[81] Next the applicant argues that the learned trial judge should have directed the jury as to "which evidence directly supports each charge in relation to the other charges", citing Conley.[29] This seems to suggest that the jury had to be told what parts of one version had a particular similarity with parts of the other version, charge by charge. In Conley, King CJ said that where there is a single trial containing more than one charge, the jury should be told explicitly what, if any, use they may make of the evidence which directly supports each charge in relation to the other charges and they should be warned against the impermissible uses of such evidence.[30] But this passage does not support the applicant's proposition. The evidence of each complainant on the counts concerning him was relevant, as I have explained, in considering the truth of the version of the other complainant. Although the directions were not extensive on this point, they were sufficient. In particular her Honour told the jury that:
[163]
"You may only however, use the evidence of [MS] or [PN] with respect to the charges involving the other [in order to] measure the probability of both of them telling similar lies. And in this regard you are looking at particular details or particulars of offences. For instance, the fact that each of them referred to the use of the rope, to tying up. Each of them referred to acts of sodomy".
[164]
[82] It is further argued that the judge should have identified the similarities and dissimilarities in her summing up. The Bench Book suggests that this is desirable. But no authority is cited to suggest that it is required in every case. In my view, the summing up as a whole fairly acquainted the jury with the factual arguments. No redirection was sought by senior counsel appearing for the applicant. That may well have been a decision made from a concern that the jury would be affected by the judge's listing the similarities which she had identified in her pre-trial ruling as to joinder.
[165]
[83] Next it is said that the jury was not directed on the matter of concoction or collusion. But her Honour did give directions about that. She told the jury that they had to be satisfied that the complainants had not colluded but then went further in saying that they had to be satisfied "that there is no real risk of concoction and that is a high standard", and that "there is a real risk that their evidence is untrue because they have got together to make a up a similar story, to make up similar lies." The applicant seems to also suggest that the jury should have been warned of a risk of "subconscious collusion". In this case, that was unnecessary: there was no real risk that one complainant had been made to believe that he had been tied up and that these particular things were done to him by hearing the other's account.
[166]
[84] There is a complaint about the direction as to uncharged acts. It is said that the jury could have understood this direction to allow it to use the uncharged acts involving one complainant as being relevant to that of the other complainant. Again, I reject that. In my view, her Honour's directions as to these matters were not open to that interpretation. Her Honour told the jury that the evidence of these uncharged acts should not be used to infer that the applicant committed any of the offences as charged but it was relevant to the proof of the relationship between the applicant and that complainant and might also be used in assessing the credibility or reliability of that complainant.
[167]
[85] I agree with what Williams JA has written in rejecting this submission.
[168]
[86] There was ample evidence by which the jury could be satisfied of guilt on each count. In particular, there was direct evidence from the complainant as to each count which it was open to the jury to accept.
[169]
[87] For these reasons, I agree that the extension of time to appeal should not be granted and the application should be dismissed.