R v Randell [1999] TASSC 78

Supreme Court of Tasmania|1999-07-29|Before: Underwood J

Criminal Law - Evidence - Similar facts - Relevance - Sexual offences - Circumstances in which the evidence will acquire the necessary probative value for admission - Whether striking similarities in the evidence of several complainants - Whether the probative force of such striking similarities weakened by possibility of a "cause common to the witnesses".

Criminal Law - Evidence - Similar facts - Relevance - Sexual offences - Evidence of indecent assaults not the subject of a charge - Whether admissible as so called "relationship evidence".

Gipp v R (1998) 194 CLR 106; B v R [1992] HCA 68; (1992) 175 CLR 599 at 602, applied.

Criminal Law - Evidence - Similar facts - Relevance - Joinder of counts - Evidence on one count admissible on another.

Sutton v R [1984] HCA 5; (1984) 152 CLR 528; De Jesus v R [1986] HCA 65; (1986) 68 ALR 1, applied.

Judgment Number: [1999] TASSC 78

1 The accused was arraigned on an indictment containing 32 counts of indecent assault, contrary to the Criminal Code, s127. He pleaded not guilty to all counts. Counsel agreed that I should rule on certain matters of law concerning the admissibility of evidence before the jury was empanelled. The authority for taking that course is the Code, s361A. In order to determine the disputed matters of law, evidence was taken on the voir dire.

2 The crimes charged by the indictment are alleged to have been committed upon 15 females. The particulars to the counts allege that in the majority of the cases, the crimes were committed during late 1981 and 1982 whilst each complainant was aged about 11 years and a student at a school which employed the accused as a teacher.

3 With respect to each count on the indictment, the Crown seeks to lead, as relevant to the issue of whether the accused committed the act charged, evidence which tends to prove that the accused committed the crimes charged by all the other counts in the indictment. In addition, with respect to most counts, the Crown seeks to lead evidence of other indecent assaults on the complainants and on other female children who are neither complainants nor witnesses, such assaults not being the subject of a charge. The defence contends that all this evidence is inadmissible. If the contention is right, the indictment will have to be severed in some way or ways in order to prevent the prejudice that will arise if inadmissible evidence is adduced on the trial of any count. See Sutton v R [1984] HCA 5; (1984) 152 CLR 528; De Jesus v R [1986] HCA 65; (1986) 68 ALR 1.

"Where there are more counts than one in an indictment each count shall be regarded as a separate indictment."

5 The general rule is that on each count or separate indictment, evidence tending to prove the commission of a crime not charged by the count is inadmissible if it only shows that the accused has a propensity to commit the crime charged. See R v Boardman [1975] AC 421; Makin v The Attorney-General for New South Wales [1894] AC 57; Markby v R [1978] HCA 29; (1978) 140 CLR 108. In Harriman v R [1989] HCA 50; (1989) 167 CLR 590, Brennan J expressed the rationale for this common law rule of evidence as follows, at 593:

"The reason underlying these principles is that the law refuses to accept in proof of guilt evidence which does no more than show the commission of, or the predisposition to commit, other offences even if they be offences of the same or similar character as the offence charged."

6 In Pfennig v R [1995] HCA 7; (1995) 182 CLR 461 McHugh J analysed in some detail, at 512 et seq, the reasons for excluding propensity evidence. However, such evidence is admissible if it is relevant to an issue in the trial other than by way of tending to establish no more than a propensity on the part of the accused to commit the crime charged, provided its probative force has sufficient strength. See Sutton v R (supra); R v Boardman (supra). It used to be said that such strength arose when the evidence disclosed that there were "striking similarities", "unusual features", "system", and so on, in the evidence of the several witnesses, but the true principle was well expressed by Lord Wilberforce in Boardman when he said, at 444:

"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. ...

I use the words 'a cause common to the witnesses' to include not only (as in R v Sims [1946] KB 531) the possibility that the witnesses may have invented a story in concert but also the possibility that a similar story may have arisen by a process of infection from media of publicity or simply from fashion. In the sexual field, and in others, this may be a real possibility: something much more than mere similarity and absence of proved conspiracy is needed if this evidence is to be allowed."

7 This proposition was put simply but clearly by Lord Hailsham in Kilbourne v R [1973] AC 729 at 741:

"When a small boy relates a sexual incident implicating a given man he may be indulging in fantasy. If another small boy relates such an incident it may be a coincidence if the detail is insufficient. If a large number of small boys relate similar incidents in enough detail about the same person, if it is not conspiracy it may well be that the stories are true. Once there is a sufficient nexus it must be for the jury to say what weight is given to the combined testimony of a number of witnesses."

8 The above two passages were cited with approval in the joint judgment of Brennan J (as he then was) and Dawson J in Hoch v R [1988] HCA 50; (1988) 165 CLR 292. In their joint judgment, Mason CJ, Wilson and Gaudron JJ referred to Kilbourne and some other English cases at 295 and said:

"That [probative] value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred."

9 In Hoch, the High Court held that even though there were features about the evidence of the three male complainants that could have led the jury to conclude that each supported the other, the similarities being such that this was no mere coincidence, the close relationship between the three complainants and the opportunity to concoct their accounts robbed those features of the probative value that they would have had had there been no such opportunity and relationship. In that case, no evidence was given on the voir dire. With respect to the role of the voir dire, Mason CJ, Wilson and Gaudron JJ said at 297:

"Thus, in our view, the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction. That is a matter to be determined, as in all cases of circumstantial evidence, in the light of and experience. It is not a matter that necessarily involves an examination on a voir dire. If the depositions of witnesses in committal proceedings or the statements of witnesses indicate that the witnesses had no relationship with each other prior to the making of the various complaints, and that is unchallenged, then, assuming the requisite degree of similarity, common sense and experience will indicate that the evidence bears that probative force which renders it admissible. On the other hand, if the depositions or the statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction then, as a matter of and experience, the evidence will lack the degree of probative value necessary to render it admissible. Of course there may be cases where an examination on the voir dire is necessary, but that will be for the purpose of ascertaining the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of and experience, it is capable of reasonable explanation on the basis of concoction. It will not be for the purpose of the trial judge making a preliminary finding whether there was or was not concoction."

10 At first sight, it may appear as if their Honours are saying that it is not for the trial judge on a voir dire to determine whether the evidence discloses that there was no possibility of concoction. However, upon close study, I do not think that their Honours are saying any more than if the evidence upon the voir dire establishes that there was a relationship between the witnesses, an opportunity for concoction and a motive to do so, that will be sufficient to rob the evidence of the probative value that it would otherwise have had. However, if the evidence on the voir dire establishes no real possibility of concoction, then it is for the trial judge to determine in the ordinary way whether the evidence is admissible or not. Thus, in a case such as this where, at the relevant times, the majority of the complainants were in the same class at school, an inquiry on the voir dire is necessary, for that fact alone gives rise to a prima facie suspicion that there may have been concoction or other common cause among the witnesses. However, if after hearing all the evidence on the voir dire it is established that there is no motive for concoction, no suggestion that there has been concoction and no other common cause among the witnesses is apparent, the evidence is admissible provided it otherwise has the requisite probative force. As Brennan J (as he then was) and Dawson J point out in Hoch, at 304, for the purpose of determining the admissibility of a confession, the trial judge makes a finding on the voir dire with respect to the voluntariness of the confession. A finding that it was voluntary will make the confession admissible (subject to discretionary exclusion) but that finding does not preclude the jury from subsequently considering whether it was made voluntarily. Brennan and Dawson JJ said, at 303:

"It is a question which must be addressed by the trial judge when the admissibility of the similar fact evidence falls for determination. In the ordinary course, credibility is a question for the jury. That is so even with similar fact evidence. But in determining the admissibility of certain special classes of evidence it is inevitable that the trial judge must make an initial determination of questions of fact which the jury may ultimately have to decide. If the evidence is admitted, its probative force becomes a matter for the jury who may form their own view as to the possibility of a conspiracy among the witnesses to concoct their allegations."

11 In Harris v Minister for Public Works [1912] HCA 56; (1912) 14 CLR 721 it was held that if the admissibility of evidence depends upon a question of fact, the fact must be ascertained by the trial judge as a question of law. The fact to be determined when so called similar fact evidence is sought to be adduced is whether that evidence bears the requisite probative value. That may depend, in part, on whether there is a real possibility that the similarities arose from a cause common to the witnesses. If, after hearing evidence upon the voir dire, the trial judge is satisfied that there is no real chance that the similarities in the evidence of the witnesses arise from concoction or other common cause, the evidence will be admitted if those similarities give the evidence the necessary probative value. In Hoch, Brennan and Dawson JJ went on to say at 304:

"Just as the duty to determine voluntariness arises when the circumstances of the case raise it as a real question (MacPherson, at pp 523,534) a duty to determine whether similar fact evidence is to be accounted for by a cause common to the witnesses arises when the circumstances of the case raise it as a real question. Here, his Honour identified circumstances of association between the complainants which plainly raised the question whether there was a real chance that they had put their heads together to concoct their allegations. That is not to say that a trial judge should lightly conclude that there is a 'real chance' of conspiracy among complainants in sexual cases, whether children or adults. Contact or antecedent friendship between complainants may be quite insufficient to found such a conclusion. But the circumstances of their contact or friendship may warrant an inquiry whether there was a real chance that they had agreed to concoct their allegations. When such circumstances appear, the judge must inquire."

12 The above passage is apposite to the task at hand. I do not understand the majority judgment in Hoch to contend anything to the contrary.

13 With respect to the evidence given by each complainant on the voir dire, the first question is whether that evidence contained facts so similar to the facts given in evidence by each of the other complainants that each supported the other in the sense that it is highly improbable that each would give evidence containing such similarities unless the acts charged actually occurred. The second question is whether there is a real, not fanciful, chance that such similarities might reasonably be explicable on any basis other than the guilt of the accused, eg, concoction or other common cause. In Harriman v R (supra) Dawson J said at 602:

"... the evidence should not be admitted at all if the judge is of the opinion that there is a rational view of it which is inconsistent with the guilt of the accused: see Hoch v R [1988] HCA 50; (1988) 165 CLR 292 at 296. If he is of that opinion, the evidence will not possess the requisite degree of probative force."

In Hoch v R (supra) Mason CJ, Wilson and Gaudron JJ expressed the test this way:

"In such 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 events in issue [on each count]. 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 concoction there is another rational view of the evidence. That rational view - viz joint concoction - is inconsistent 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."

14 With respect to the evidence of the commission of indecent assaults not the subject matter of a charge, Mr Stoddart, senior counsel for the Crown, submitted that it was admissible as "relevant to the relationship between the accused and the complainant and/or relevant to show that the accused had a 'guilty passion' for the complainant". At this stage of the trial, the only relevant issues are those raised by the plea of not guilty. Relevance is to be determined accordingly. McHugh J discussed "relationship evidence" obiter dicta in Harriman at 630 et seq:

"Evidence relating to the accused and the alleged victim ('the relationship cases'), although revealing other criminal conduct, will frequently be admissible because it tends to prove how or why the conduct the subject of a charge arose or because it makes it more probable than not that the conduct occurred at the time or place or in the way alleged. In 'relationship cases', evidence of previous acts is admissible not to show a general criminal disposition but to show the nature of the relationship between the parties."

15 McHugh J's views about "relationship evidence" were referred to with approval by Toohey J in S v R [1989] HCA 66; (1989) 168 CLR 266 at 279. This kind of evidence was considered by all the members of the Court obiter dicta in Gipp v R (1998) 194 CLR 106. In their joint judgment, McHugh and Hayne JJ referred to "relationship evidence" and said that in the case at hand "[i]t was admissible to show the relationship which existed between the parties and to explain why the complainant so readily complied with the various demands of the appellant." However, I do not understand their Honours to be saying that there is a special category of "relationship evidence" or background evidence which, per se, entitles the Crown to adduce evidence of criminal conduct not the subject of the charge. In his judgment in Gipp, Callinan J did not think this was the case. He said, at 168 - 169:

"I do not accept that non-specific highly prejudicial evidence may be led by the prosecution, and juries told it might provide 'part of the essential background' against which the other evidence is to be evaluated."

"If such evidence is to be received it must owe its admissibility to some quite specific, other purpose, including for example, in an appropriate case, proof of a guilty passion, intention, or propensity, or opportunity or motive. There may also be cases in which the relationship between people may be directly relevant to an issue in the trial and in those circumstances admissible as such."

16 In her judgment, Gaudron J took a stronger line and said, at 111 - 113, that evidence of sexual abuse not the subject of a charge is inadmissible unless it qualifies as "similar fact" evidence or is made admissible by the conduct of the defence. She said that issues such as lack of surprise and failure to complain can only become issues if the defence is conducted in such a way as to make them issues. The other member of the Court, Kirby J, said at 156 that however the evidence is described, be it "dispositionial", "background", "tendency", "relationship" or "similar fact" it is only admissible if its probative value outweighs its prejudicial effect.

17 It seems to me that there is no basis in law for treating "relationship evidence" as if it were a special category of evidence. It is not. It is circumstantial evidence of the happening of the events in issue and, as it is also evidence of a general propensity to commit the crime charged, it will be excluded when sought to be lead by the prosecution unless its probative value is so high that it outweighs its prejudicial effect. Of course, such probative value may be acquired by the conduct of the defence, but with respect to those who have a different view, the evidence may also be of such a nature that it has the requisite probative value for admission regardless of the conduct of the defence and thus serve as circumstantial evidence of the happening of the events in issue. Whether it has such value will depend on the nature of the evidence and the nature of the case. In some cases, such as those concerning allegations of sexual abuse of a child of the accused, evidence of other wrongful acts not the subject of a charge may acquire the necessary probative force by virtue of its capacity to displace the presumption of a proper father/daughter relationship and to establish the existence of an improper relationship, thereby making it more likely that the acts charged occurred. See B v R [1992] HCA 68; (1992) 175 CLR 599 at 602; S v R (supra) at 279. However, it seems to me that in cases where the relationship between the accused and the complainant adds little by way of proof that the acts charged took place, evidence of that relationship is inadmissible in accordance with fundamental principle. See R v Kemp [1997] 1 Qd R 383. I refer generally on this issue to a very helpful article to which I was referred by Mr Barker, senior counsel for the accused, Comparative Evidence: Admission of Evidence in Sexual Offence Prosecutions (1999) 73 ALJR 432.

18 In this case, on the trial of all counts, the Crown seeks to adduce evidence from each complainant of the events charged with respect to that complainant:

* as direct evidence of the commission of the crime charged with respect to that complainant;

* as circumstantial evidence of the commission of the crime charged with respect to each of the other complainants because of the claimed striking similarity in the accounts of the complainants; and upon the same basis,

* to corroborate the veracity of the other complainants.

19 In addition, the Crown seeks to lead from the majority of complainants evidence of indecent assaults not the subject of a charge as so-called "relationship evidence". This is not a case where it is claimed that evidence of the commission of the crimes will be inexplicable unless "relationship evidence" is adduced. The relationship in virtually all cases is that of teacher and pupil. The Crown case, again in the majority of cases, is that the indecent assaults charged by the indictment simply occurred either in the class room or at the complainant's home. It is no part of the Crown case that the commission of the majority of the crimes charged arose out of any special relationship that had developed between the accused and the complainants other than that of teacher/student. The Crown case is that the accused abused that relationship and the access to, and the authority over, the complainants that it gave him to sexually assault them from time to time. At this stage of the trial, the only evidence of indecent assaults not the subject of a charge that "logically add[s] to ... the probability that the disputed critical matters occurred" - Kemp (supra) at 398 - is that which bears a striking similarity to the evidence which is directly probative of the acts charged. Thus, with respect to each count, all evidence, the probative value of which is sufficiently high to be admitted as "similar fact" evidence, is admissible whether that evidence concerns an act charged or not.

20 There is another reason for excluding general vague evidence of sexual misconduct other than that which is directly probative of an act charged or is of an act strikingly similar to an act charged. The purpose of general "relationship evidence" which the Crown seeks to lead from a complainant is to make it more likely that the act charged with respect to that complainant occurred. However, in a case such as this where, for reasons that follow, the charges with respect to a number of complainants will be heard together, evidence of the relationship between the accused and one complainant does not make it more likely that the accused committed the act charged with respect to another complainant unless that "relationship evidence" is "strikingly similar" to the evidence of the complainants with respect to the acts charged. Thus, the general evidence on the voir dire of the accused behaving in an inappropriate manner towards his female students will not be admitted on the trial. However, evidence of assaults committed in the same way as it is alleged the accused committed the assaults charged will be admitted, even though those assaults are not the subject of a charge.

21 Evidence was taken on the voir dire from 36 witnesses, of whom 15 were complainants. At the conclusion of the voir dire, Mr Stoddart said that a nolle prosequi would be filed with respect to counts 5, 7 and 23.

22 On count 1, the complainant, P, gave evidence that in 1981 she was a year 6 student at Marist College, Burnie and the accused was her teacher. She said that one day she was sitting in a darkened class room at school watching a video with the other children in her class. She said that the accused sat down close beside her and put his hand up under her skirt and on her upper thigh. She added that on other occasions in the class room the accused knelt next to her and touched her on the leg while talking to her.

23 On count 11, the complainant, H, said that in 1982 she was a year 6 student at Marist College, Burnie and the accused was her teacher. She said that one day she was sitting in the school library watching a video with the other children in her class. She said that the accused sat down close beside her and put his hand up under her jumper and tried to touch her breasts.

24 On count 14, the complainant, S, said that in 1982 she was a year 6 student at Marist College, Burnie and the accused was her teacher. She said that one day she was sitting in a class room after the school day had finished. Present were the accused and two others from her class. She said that the accused sat down close beside her and put his hand up under her shirt and rubbed her back.

25 On count 18, the complainant, R, said that in 1982 she was a year 6 student at Marist College, Burnie and the accused was her teacher. She said that one day she was in the library at school watching a video with the other children in her class. She said that the accused sat down close beside her and put his hand up under her skirt and on her upper thigh.

26 On count 19, the complainant, V, said that in 1982 she was a year 6 student at Marist College, Burnie and the accused was her teacher. She said that one day she was sitting at her desk in class. She said that the accused leant over her and put his hand up under her shirt and on her breast.

27 Absent a real possibility that a cause common among those witnesses may account for the similarities in their evidence, those similarities are such that the evidence of each is highly probative of the issue joined on the counts with respect to the others.

28 The complainants H, S and R also gave evidence of indecent assaults while they were in their beds at home. There were marked similarities in their evidence with respect to these assaults. The evidence of each was to the effect that the accused visited their homes, mostly without invitation, and made friends with the complainants' parents. Often he was asked to stay for an evening meal. Frequently he stayed on after the meal to watch television or talk. After the complainants had gone to bed, he asked the parents if he could go and say goodnight to them. He went to the bedroom and sat on the complainants' beds talking to them. Whilst doing this he slipped his hands under the bed covers and indecently assaulted the complainants, usually talking all the while. In the case of R, the complainant was not in bed but sitting on the bed with other children watching a video. R said that all the children were covered by a doona. She said that the accused sat next to her and under the doona indecently assaulted her and made her masturbate him.

29 Mr Barker submitted that the trial of the counts concerning assaults in the bedroom should be severed from the trial of those assaults said to have taken place at school. I do not accept that submission. Severance is necessary in cases where an accused runs a real risk of suffering prejudice from the adverse effect which "evidence of his implication in one of the offences charged in the indictment is likely to have on the jury's mind in deciding whether he is guilty of another of those offences" - per Brennan J (as he then was) in Sutton v R (supra) at 542. At this stage of the trial the issue appears to be whether the acts charged occurred. The determination of this issue will substantially, if not wholly, depend upon the credit of the complainants. Thus, no impermissible prejudice will flow from jointly trying all the counts concerning a complainant. Where a number of those complainants give strikingly similar evidence of assaults at school and assaults in their bedrooms, absent a cause common to them all, that evidence has a very high probative effect on the issue of whether each of the acts charged occurred. Upon this basis the counts alleging assaults in the bedroom of the complainants H, S and R, being counts 12, 15, 16 and 17 will be tried at the same time and together with counts 1, 11, 14, 18 and 19.

30 Other complainants, all of whom were students at Marist College in 1981 or 1982 and whose class teacher was the accused, gave evidence of indecent assaults in their beds at home. The essential features of the evidence of all of them were the same as the essential features of the evidence given by H, S and R. These complainants are EH (count 2), C (count 6), G (counts 20, 21 and 22) and P-S (counts 24 and 25). Again, absent common cause amongst these complainants and complainants H, S and R, the evidence of all of them bears such striking similarities that it is admissible as "similar fact" evidence.

31 There is another group of common evidence. It might be called the "camp evidence". In addition to giving evidence in support of count 6, C gave evidence with respect to count 4 (as amended). She said that in 1982 she went on a school camp at Camp Clayton near Ulverstone. She said that while she and other girls from her class were lying in their bunks shortly after going to bed, the accused came in and spoke to them all. She said that the accused came in and put his hand inside her sleeping bag and rubbed her breasts and "kissed [her] around the ears and neck".

32 Complainant CC gave identical evidence to that given by C in support of count 8. It is not entirely clear whether both complainants were referring to the same camp, but they both referred to an assault at Camp Clayton in 1982 when they were in year 6 at Marist College. As in the case of the alleged assaults in the home and at the school, the evidence was that the victims were aged about 11 years and the accused was their teacher. The common evidence was that the accused committed the assaults when the complainants were in bed by placing his hands under the covers, usually while continuing to talk. The only point of distinction between the evidence of assaults at the camp and assaults at the home is the location of those assaults. That point of distinction does not rob the evidence concerning the assaults at camp of its otherwise very strong probative force of guilt of assaults at the home. Again, subject to the issue of a cause common to all the witnesses, the similarities in the evidence are so striking that counts 4 and 8 should be tried with the other counts.

33 There was no hint in the evidence on the voir dire that a possible explanation for the striking similarities in the evidence of these complainants was concoction. Mr Barker did not contend to the contrary. There was plenty of evidence to lead to the conclusion that the accused was widely regarded by his students as a person who acted in a generally inappropriate way towards his female pupils. However, it must be remembered that the probative force of the evidence of the several complainants arises from the detailed similarities in the evidence of all of them, so the question on the voir dire is whether there is a reasonably rational possibility that such similarities may have arisen from a common cause of some kind between the witnesses, or whether the only rational explanation for those similarities is that the acts charged occurred. All the evidence on the voir dire from complainants and others was to the effect that although some had heard various rumours about the accused acting in an inappropriate manner, none of them had learned, directly or indirectly, from the others those details that give the evidence the requisite degree of probative force.

34 I conclude that the evidence of the complainants in support of counts 1, 2, 4, 6, 8, 11, 12, 14 - 22, 24 and 25 is admissible on the trial of all those counts, as is evidence by each of those complainants of indecent assaults not the subject of a count that bears the same striking similarities as does the evidence given in proof of the acts charged.

35 I turn now to the other counts. Complainant D gave evidence in support of count 13 that she was a student at Lindisfarne North Primary School. She said that in 1982 or 1983 she was in grade 5 and went on a school camp near Huonville. The accused was at that camp. D was uncertain whether the accused was a teacher at the school or a person who assisted the teachers, particularly with respect to sporting activities and the like. He was not her class teacher. She said that at the camp she was lying in her sleeping bag when the accused came in around "lights out" time. She said that he stood near her bunk and "started rubbing my back on top of my pyjamas which progressed to rubbing me on my back on my skin." She said that after he had rubbed her back he gave her a kiss "sort of on the cheek near to my mouth ... fairly sloppy". I accept Mr Stoddart's submissions that there are similarities between D's evidence and that given by the other two complainants with respect to an assault at a school camp, but the trouble is that D's evidence on the voir dire was such that if considered alone, the jury might well not be satisfied that the touching was indecent. The risk of joining the trial of that count to the other counts is that the joinder might create the very prejudice which gave rise to the exclusionary rule, namely the jury might, in an impermissible way, conclude that the accused's touching of D was indecent because that was how he touched C and CC at another school camp.

36 In support of count 3, EH's sister gave evidence that on the night the accused visited EH in her bedroom (count 2), her parents were not at home and she was alone in the sitting room. EH's sister was then aged 15 and also a student at Marist College. She said that after returning from her sister's bedroom, the accused sat with her in the lounge and asked her to give him a massage, which she did. In the course of so doing, the accused put her hand on his penis. It seems to me that although this alleged crime is closely linked in time and space to the crime charged by count 2, there are insufficient striking similarities to the evidence given in support of the other counts to enable it to be tried with those other counts. The complainant was not a student of the accused. She was 15 years old and the manner in which the alleged assault was committed was quite different from the manner in which it was claimed the accused committed the assault on her sister and the others.

37 The same observations can be made about the evidence of S, given in support of count 26. This crime was alleged to have been committed in 1986 when the complainant was 15 years of age. The accused was not S's teacher and she was not attending a school at which he was a teacher. S came to know the accused because he and her father had a common sporting interest. S said that one night she was with her parents visiting friends. The accused was there as well. She said that when she got bored, she went into the lounge to watch television and the accused came in and sat next to her and put his hand under her shorts and touched her breasts.

38 Counts 30 - 32 concern the complainant W. She alleged that the accused assaulted her on two occasions in 1995 when she was a student of his at Moonah Primary School. She also alleges an assault the following year when she returned to visit Moonah Primary School. Count 30 concerns an incident at a school camp. The conduct alleged is capable of being an innocent touching and the observations I have made with respect to count 13 apply with equal force to this count. There are no similarities between W's evidence on count 31 and the evidence of other complainants and, although there are some on count 32, there are insufficient to give the evidence the requisite probative value.

39 There remain counts 9 and 10, evidence in support of which was given by CC, and counts 27 - 29, evidence in support of which was given by complainant DC. According to her evidence, DC was aged 10 in 1985 and lived in Hobart with her parents. She knew the accused because he was a friend of her family. There was a common interest in a football club. She said, in respect of count 27, that one day in 1985 she was sitting on her bed with her brother watching the television. They had a doona over them. DC said that the accused came in and sat next to her and, under the cover of the doona, fondled her breast. She said that the same year the accused rubbed the inside of her leg over her jeans when she and her mother were sitting together at a football match. She said that she and her mother had a sleeping bag over their legs and the accused sat next to her and, under the cover of the sleeping bag, committed the assault. Lastly, DC said that in 1990 when she was 15 and living with her parents at Campbell Town, the accused came to her house and assaulted her by pushing her up against a fence with his knee between her legs and by putting his hands upon her breasts. Although there are some similarities between the evidence of DC and that of the other complainants with respect to count 27, there are few with respect to count 28 and none with respect to count 29.

40 As mentioned, CC gave evidence in support of count 8 that she was the victim of an indecent assault at Camp Clayton in 1982 when she was a year 6 student in the accused's class at Marist College. In support of count 9, CC said that she was travelling back from a school trip to Hobart in the accused's car. She said that she was sitting in the front seat and the accused "was resting his arm along the edge of the seat and he had his hand down [her] T-shirt fondling [her] breast". With respect to count 10, CC said that one day in the school holidays, the accused called at her home and took her for a drive to an area where there were some pine trees. She said that there the accused fondled her genitalia and placed her hand on his erect penis. The common features of that evidence and the evidence of the other complainants, are that the accused was the complainant's teacher at the relevant time and that she was aged about 11 years, but the similarities end there. I appreciate that the jury will be required to assess CC's credit when they determine the accused's guilt or innocence on count 8 and, accordingly, there is reason to try the other two counts concerning that complainant at the same time. However, the assault alleged by count 10 is a very serious one, and it seems to me that there is a risk that the jury might make impermissible use of the evidence offered in support of it (such evidence not having the same striking similarities to the evidence tendered in support of the other jointly tried counts) when considering the guilt of the accused on the counts concerning other complainants.

41 It is not necessary for me to do more than rule at this stage that counts 3, 9, 10, 13 and 26 - 32 be severed from the indictment and that the trial proceed with respect to counts 1, 2, 4, 6, 8, 11, 12, 14 - 22, 24 and 25.

42 With respect to counts 4 and 6, C gave evidence that in 1982 she was the victim of an assault at Camp Clayton and an assault in her bed at home. Evidence was given that the accused became a good friend of her parents, particularly her father. There was no contact in 1983 between C or her parents and the accused. Evidence was given that in 1984, the accused was a guest speaker at a function to be held at a hotel in Penguin and he called at C's house and asked if he could stay the night. C's parents agreed that he could do that. C returned home and upon finding the accused in her house said that she was not going to stay in the same house as him and left. She went to a friend's house and, shortly after, her parents became aware that C claimed that the accused had indecently assaulted her. By this time the accused had been driven by C's father to the hotel. On learning of C's complaint, her father drove straight to the hotel to confront the accused. His evidence was that he went into the hotel foyer, saw the accused and beckoned to him to come out. This the accused did. C's father then said "is what [my daughter] says true?" C's father said that the accused said nothing in response to this, so C's father repeated the question, whereupon the accused maintained his silence and turned to head back into the dining room. At that point C's father said that he "took a swing" at the accused, but others intervened and he was removed from the hotel.

43 The Crown seek to adduce this material as evidence of an admission. The defence objects to its admission, contending that the accused was entitled to remain silent and thus his failure to respond to the question cannot amount to an admission. Accordingly, so it was submitted, the evidence of what occurred at the hotel is inadmissible as irrelevant.

44 The right to silence is well established in the common law. In Petty v R [1991] HCA 34; (1991) 102 ALR 129, it is described as follows, at 130:

"A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country."

45 The right to silence only applies in the face of questioning by a person or persons in authority. In Petty, Brennan J (as he then was) said at 136:

"The rule is designed to prevent oppression by the police or other authorities of the State; it is not designed to preclude a jury from drawing inferences from silence when a response might reasonably be expected, the response not being sought by or on behalf of a person in authority."

46 His Honour referred to the Privy Council decision of Parkes v R (1977) 64 Cr App R 25 as authority for that proposition. In that case their Lordships' advice referred to Mitchell v R (1892) 17 Cox CC 508 for the principle that upon a charge being made where persons are speaking on even terms, the question is whether it is reasonable in circumstances that the person will respond to it and whether absence of denial constitutes an admission.

47 Prior to the charge being put to the accused, he and C's father were on good terms. The accused had arranged to stay the night at C's house and C's father had driven him to the speaking engagement. In these circumstances, when C's father turned up at the hotel and put the question that he said he did put, a reasonable jury could infer from the accused's failure to respond to the question, put twice, and his move away from the questioner, amounted to an admission of guilt. It is circumstantial evidence that is capable of having that effect and I rule that the evidence is admissible.

48 A class mate of C in 1982, SA, gave evidence that one night she was staying at C's house for the night and that they were in bed when the accused walked into C's bedroom. SA said that the accused sat down on C's bed and "I can just remember seeing that one [hand] went down under the covers - I don't know if it was two hands or one hand, but I can just recall that hand disappearing down into the bed". In her evidence, C said that she recalled the night that SA stayed with her but she didn't "actually remember a lot about what happened that particular time." The evidence of SA is not directly probative of the occurrence of an act charged, but is admissible as similar fact evidence in accordance with the ruling given earlier in these reasons for judgment.

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Judgment (75 paragraphs)

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Cases Cited (12)