It is presumed that the sex offences counts on the presentment are triable together, (s.372(3AA) Crimes Act 1958). It is for the defence to rebut that presumption, R v. TJB [1998] 4 V.R. 621 at 630-631. The presumption is not rebutted merely because the evidence is not cross-admissible (s.372(3AB) Crimes Act 1958). All counts on the presentment are properly joined if they form part of a series of offences of a similar character (Sixth schedule of the Presentment Rules).
Although the onus rests on the accused to rebut the presumption of joinder of sexual offences, cross-admissibility is a powerful factor in determining such an application, although not conclusive, and it is for the prosecution to show, first, relevance and, secondly, cross-admissibility, if that be relied upon. Here the prosecution argues that evidence of all counts, both the sex offences and non sex offences, is relevant and cross-admissible. That is, evidence of one count and of one complainant may be led in proof of another count in respect of that, or another, complainant.
The purpose for which the evidence is sought to be admitted provides the basis for admission, as well as the directions later to be given to the jury. However, as this evidence is in the nature of propensity evidence, its admissibility is also to be determined by reference to s.398A of the Crimes Act. Propensity evidence is defined as evidence which is received, notwithstanding that it discloses the commission of offences other than those with which the accused is charged, or other discreditable conduct. (See R v. Best [1998] 4 VR 603.)
To be admissible, such evidence must first be relevant to the facts in issue but, even then, cannot be admitted unless it is just to do so despite its prejudicial effect (Section 398A(2)). The determining factor is to ensure the fair trial of the accused (R v. Papamitrou [2004] VSCA 12; (2004) 7 VR 375 at [27]. The likely issue between the accused and the prosecution in respect of each complainant is whether the events occurred as alleged. The purpose for which the evidence is sought to be admitted in this case is to make each of the alleged acts more probable. The probative value lies in the improbability of different witnesses fabricating similar lies. Pfennig v. R [1995] HCA 7; (1995) 182 CLR 461 at 482.
It is well settled that the material sought to be led does not need to display striking similarities with the other counts on the presentment where the identity of the perpetrator is not in issue, which is the case here. Factors to consider include the relationship said to exist between the accused and the complainants, the ages of the complainants at the time of the alleged offences, the general nature of the allegations, including any common features, the number of complainants, and whether there is any underlying unity, system or pattern.
In order to analyse these factors it is necessary to turn to the way the prosecution puts its case in respect of each complainant. I will do so in summary form, on the basis of all of the depositional material, which I have read.