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[2020] QCA 203
appellant. The appeal against conviction was allowed, all convictions were quashed, and retrials were ordered. Counts 1-7 and counts 9-10 were to be tried separately from counts 8 and 11; count 8 was also to...
The Court of Appeal majority held that the jury should not have heard all 11 charges together because the evidence about one charge did not necessarily help prove the others. A complainant's account of an attempted kiss could be true without making it improbable that another complainant's account of digital rape was false or mistaken. The majority therefore quashed every conviction and ordered retrials, with specified groups of counts separated. The Court also agreed that the direction about whether the touching in count 10 was accidental raised a potentially misleading issue about foreseeability. Philippides JA disagreed with the majority's approach to cross-admissibility but agreed about count 10.
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2,223 words · generated 02/10/2026
In R v WBN [2020] QCA 203, the Queensland Court of Appeal considered a conviction appeal arising from an 11-count trial involving seven complainants. The offences alleged conduct at or around the appellant's family home, over a long period. The complainants were aged between 10 and 17. Three had family relationships with the appellant, while others were friends of his children or had connections to the household: [23], [27].
No linked legislation citations have been extracted yet.
The counts alleged a range of conduct, including indecent treatment, sexual assault, attempted indecent treatment, and digital rape. The most serious contrast for the majority's analysis was between count 8, the alleged digital rape of a complainant while she was asleep after drinking, and count 11, an alleged attempt to kiss another complainant, which she avoided by pushing the appellant away: [18], [49], [54].
Before trial, the judge refused the appellant's application for separate trials. The judge considered that the evidence had a sufficiently high degree of probative force to justify trying the counts together: [84], [88]-[89]. The jury convicted the appellant on all 11 counts after a nine-day trial. The District Court imposed an effective sentence of six years' imprisonment: [23]-[24].
The appeal raised four conviction grounds: the refusal to sever the counts, the directions on similar fact evidence, the direction about accident on count 10, and the use of uncharged acts: [25]. The Court of Appeal divided on the first issue. Fraser and McMurdo JJA formed the majority on cross-admissibility. Philippides JA would have rejected that ground. All three judges agreed that the count 10 direction established a distinct ground: [2], [21], [131], [147].
The majority allowed the conviction appeal, quashed all convictions and ordered retrials. It directed that counts 1-7 and 9-10 be tried separately from counts 8 and 11, and that counts 8 and 11 also be tried separately from each other: [20]. These are the operative orders in the supplied judgment.
The majority approached admissibility by first asking what use the similar fact evidence was said to have. It explained that similar fact evidence may be used to prove a propensity, but it may also be relevant in another way. The court must understand that use before assessing whether the evidence has the strong probative force required by the common law: [4]-[5].
The majority described the governing Queensland test as the common law rule expressed in Hoch v The Queen and confirmed in Pfennig v The Queen and Phillips v The Queen: [3]-[4]. The court stressed that criminal trials ordinarily focus on specified offences, not on whether an accused has a generally bad character or criminal propensity. Similar fact evidence must have particular probative qualities and a strong degree of probative force: [15]. In applying the test, the court looks at the evidence in the context of the prosecution case, assuming the similar fact evidence would be accepted as true and that the prosecution case on the charge could be accepted: [16]-[17].
The trial judge had directed the jury to assess the accounts for similarity and the improbability that the accounts were coincidental or false, and warned against mere propensity reasoning: [10]-[12]. But, for the majority, an appropriate jury direction could not cure the underlying problem that the evidence was not admissible across every count.
Count 8 and count 11 illustrated the problem. The count 8 complainant described digital penetration while she was asleep and had been drinking. Count 11 involved an attempted kiss about nine years later, which the complainant avoided. The majority reasoned that a jury could conclude that an attempted kiss had occurred without concluding that the digital rape had occurred. In other words, the count 11 account had a reasonable view consistent with innocence of count 8. The accounts did not have the necessary degree of similarity to make it improbable, absent collusion, that they had been given unless true: [18].
The majority considered count 1 separately in relation to count 8. Although both involved a complainant who was originally asleep, the circumstances differed. In count 1, the alleged act of rubbing ice on the complainant's chest would itself have been likely to wake her, so the majority considered that the appellant could not have thought the conduct would go undetected. The majority considered count 1 more similar to the other counts, apart from counts 8 and 11: [19]. It concluded that the same cross-admissibility problem applied when the other counts were compared with count 8: [20].
The result followed from the risk that the jury could use evidence that should not have been admitted to decide a particular count. The majority held that separate trials should have been ordered, and quashed all convictions: [20].
Count 10 raised a different issue. The appellant accepted that he touched the complainant's breasts during a massage but said the contact was accidental, caused by stretching his shoulders: [71], [139]. The jury received a redirection about whether the touching was intended or foreseeable. Philippides JA reasoned that foreseeability had not been the prosecution's case and could confuse the real question, which was whether the touching was deliberate or accidental. Without a clear direction that the prosecution had to prove an intentional touching, the jury might have thought that a foreseeable but unintended touch was enough to exclude accident: [144]-[147]. Fraser and McMurdo JJA agreed that this ground was established: [2], [21].
The judgment applied existing common law principles rather than announcing a replacement test. It stated that, subject to a qualification under s 132A of the Evidence Act 1977 (Qld), Queensland applied common law rules to similar fact evidence: [3] and footnote 1. The judgment treated Hoch, Pfennig and Phillips as the central authorities for the applicable standard: [3]-[5], [15]-[17].
The judgment's account of the law emphasises two different uses of similar fact evidence. If the underlying events are not disputed, evidence of similar events may make it objectively improbable that the accused acted innocently, unintentionally or fortuitously. If the events themselves are disputed, the evidence may be relevant because it is improbable that different witnesses would give accounts with the required degree of similarity unless the events occurred: [5]. The majority's analysis concentrated on whether the different accounts had enough similarity to support the latter kind of reasoning.
The judgment also recognises that striking similarity is not invariably necessary. Philippides JA discussed Pfennig and Director of Public Prosecutions (UK) v P, which explain that the relationship between accounts may take different forms: [79]. But absence of a strict striking-similarity requirement does not remove the need for strong probative force or a sufficient connection to the issue at trial: [15]-[17], [79]-[80].
Philippides JA's reasons give a fuller discussion of later developments and related reasoning, including Hughes v The Queen, R v Bauer and R v McNeish: [83], [108]-[117]. Her Honour considered that a particular tendency could be identified from the shared circumstances even where the acts themselves differed. In her view, the alleged offending shared a specific setting and pattern: young female complainants had access to the appellant's home through family or friendship connections, and the alleged conduct occurred there or nearby, in disregard of the risk of detection: [123], [126]-[129].
The majority did not accept that reasoning as sufficient to make the evidence cross-admissible across all counts. The practical consequence of the case is therefore its application of the demanding common law test to this particular collection of allegations, especially the contrast between counts 8 and 11. The judgment does not purport to displace the authorities it discusses.
At [5], the judgment states: “Similar fact evidence which does not raise a question of improbability lacks the requisite probative value that renders it admissible.” In plain English, evidence of another alleged offence cannot be used merely because it makes the accused look like someone who might commit the charged offence. It must make a relevant event materially more probable or make an innocent explanation objectively improbable.
At [15], the judgment explains that criminal trials are ordinarily about particular charges, not a trial of character or propensity. The translation is that a court must be careful not to let evidence of other alleged misconduct lead to conviction because the accused seems like a bad person. The evidence needs a strong, specific link to the charge being tried.
At [18], the majority said there was a reasonable view of the attempted kiss in count 11 consistent with innocence of count 8. Put plainly, the jury could believe an attempted kiss happened without thereby having a sound evidential basis to conclude that the separate and more serious alleged digital rape happened.
At [20], the majority concluded that the evidence of each count was not admissible in proof of every other count. It ordered retrials with specified separation. This passage connects the evidentiary ruling to the remedy: if evidence was wrongly available to the jury across counts, the convictions could not stand.
At [147], Philippides JA explained the count 10 problem: the redirection introduced foreseeability as a possible basis for rejecting accident, despite the prosecution case being deliberate groping. In plain English, the jury might have been left with the wrong question. Instead of deciding whether the prosecution proved a deliberate touch, it might have treated a foreseeable but unintended touch as enough. Her Honour considered that risk capable of affecting the verdict.
The case is relevant where the prosecution seeks to try several alleged offences together and argues that accounts of one complainant support accounts of other complainants. The central question is not simply whether the allegations share broad characteristics, such as sexual subject matter, similar ages, or a common location. The analysis must identify the issue the evidence is said to prove and assess whether the similarities give it sufficiently strong probative force: [4]-[5], [15]-[17].
The majority's reasoning is particularly relevant where the allegations differ materially in their nature or circumstances. In this case, the contrast was between a complainant allegedly digitally penetrated while asleep after drinking and another complainant who alleged an attempted kiss that she avoided: [18]. The majority considered that the latter allegation could be accepted without the former being true.
The judgment also illustrates the need to test cross-admissibility count by count rather than assume that a collection of allegations forms one evidentiary whole. The majority concluded that the evidence did not support every count against every other count, even though some counts had stronger similarities to one another: [19]-[20]. The operative orders grouped some counts for trial but kept counts 8 and 11 separate from each other: [20].
Count 10 is relevant to cases where contact is admitted but the accused says it was accidental. The judgment distinguishes a case about whether a touch was deliberate from a case where deliberate touching for an innocent purpose is in issue. The particular direction must not confuse the jury about what the prosecution has to prove: [139]-[147].
The supplied judgment is dated 16 September 2020 and does not provide any decisions made after that date. It therefore cannot establish how later courts have treated R v WBN. No later treatment should be inferred from this source alone.
Within its own reasons, the Court discusses earlier authorities and explains how it regarded them. Fraser and McMurdo JJA applied Hoch and Pfennig and referred to Phillips in explaining the threshold: [3]-[5], [15]-[17]. Philippides JA considered MAP and Nibigira, among other cases, as part of her analysis of whether contextual similarities could support cross-admissibility: [100]-[107]. She also relied on the reasoning in McNeish, Hughes and Bauer to support her dissenting conclusion: [108]-[117].
The different approaches within this judgment matter when describing its precedential effect. The majority's conclusion on cross-admissibility is the Court's operative holding. Philippides JA's contrary reasoning is a dissent on that question, although her reasoning about count 10 was shared by the other judges: [2], [21], [131]-[147].
The supplied judgment leaves several matters unresolved. First, the majority did not decide the fourth ground concerning whether the direction on uncharged acts improperly extended their relevance across complainants. Fraser and McMurdo JJA said it was unnecessary to reach a concluded view: [22]. Philippides JA concluded that, read in context, the jury would understand each uncharged act as relevant to the complainant it concerned: [148]-[157]. Because the majority did not determine the issue, that conclusion should not be described as the Court's holding.
Second, the judgment does not provide a general catalogue of which similarities will meet the common law threshold. The majority applied the test to the specific differences between the allegations, especially counts 8 and 11. The different conclusion of Philippides JA shows the significance of how the evidence is characterised: as accounts whose similar circumstances make coincidence or similar lies improbable, or as evidence of a particular tendency manifested in different acts: [18]-[20], [125]-[136].
Third, the supplied source does not show what happened at the retrials, whether the prosecution proceeded on all counts, or how any later court assessed the evidence. Those questions cannot be answered from this judgment alone.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have a qualified Australian lawyer check it.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v WBN [2020] QCA 203
PARTIES: R v WBN (appellant/applicant)
FILE NO/S: CA No 98 of 2019 DC No 435 of 2018
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction & Sentence
ORIGINATING COURT: District Court at Townsville – Date of Conviction: 28 March 2019; Date of Sentence: 1 April 2019 (Coker DCJ)
DELIVERED ON: 16 September 2020
DELIVERED AT: Brisbane
HEARING DATE: 22 November 2019
JUDGES: Fraser and Philippides and McMurdo JJA
ORDERS: The appeal against conviction is allowed.The convictions on all counts are quashed.The appellant is to be retried on all counts.Counts 1-7 and counts 9 and 10 are to be tried separately from counts 8 and 11.Count 8 is to be tried separately from count 11.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – SEPARATE TRIALS AND ELECTION – where the appellant was convicted by a jury after a nine day trial of 11 counts of sexual offences against seven complainant children – where the counts alleged various instances of sexual offending at the appellant’s family home located on a farm, against complainants aged between 10 and 17 – where three of the complainants had a family relationship to the appellant, being his daughter, niece and daughter of his de facto partner – where the counts variously involved indecent treatment of children under 16 (and who were either under care or a lineal descendant of the appellant), attempted indecent treatment, sexual assault and one count of digital rape – where the primary judge dismissed an application brought by the appellant for separate trials for each of the complainants made on the basis that what was alleged by one complainant was not cross admissible to prove the allegations by another complainant – where the appellant argued before the primary judge that the evidence did not fulfil the test enunciated in Pfennig v The Queen (1995) 182 CLR 461, in that no feature of the evidence reached the necessary probative value to render it admissible and that, whilst a striking similarity between the counts was not essential, it was a usual circumstance for evidence of one count to be cross admissible in respect of other counts – where the appellant also argued before the primary judge that, as in Phillips v The Queen (2006) 225 CLR 303, the similar fact evidence did not possess particular probative qualities – where the respondent submitted before the primary judge that the evidence of each complainant was cross admissible because of the probative value of that evidence in relation to the facts in issue, being whether the offending occurred and the objective improbability of similar lies by the complainants – whether separate trials of the separate counts of sexual offending should have been ordered on the basis that the evidence admissible on each count was not admissible on the other counts as similar fact evidence – whether the brazenness of the conduct in the home environment in the vicinity of others was capable of being regarded as a distinctive or unifying feature of the offending to constitute sufficiently probative evidence of similarity – whether there were material dissimilarities in the circumstances of the offending / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the trial judge gave conventional directions in accordance with the bench book as to the use of similar fact evidence, including directing against mere propensity reasoning – where these directions included the matters put forward by the prosecution as similar fact evidence and also identified the defence arguments for some of the conduct having an innocent explanation – where the appellant submitted that in light of the decision of R v Nibigira [2018] QCA 115, separate trials at least for counts 1, 8 and 11 were required – whether the trial judge gave adequate directions in relation to similar fact evidence / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the prosecution case in respect of count 10 (indecent treatment) was that there was a deliberate groping of the complainant’s breasts and the defence accepted that touching occurred but maintained that it was accidental – where the trial judge directed the jury that the prosecution was required to prove that the touching was “indecent” and explained the meaning of that term but did not include a direction that the prosecution had to prove beyond reasonable doubt that the touching had been an intentional touching – where, at the request of defence counsel, the trial judge gave a short redirection as to accident and then gave the entire bench book direction as to accident (s 23(1)(b) Criminal Code (Qld)) – where there was no complaint by defence counsel about the redirection – whether the issue of deliberate touching for an innocent purpose was raised – whether the redirection was erroneous and caused a miscarriage of justice because it raised for the jury’s consideration, for the first time, whether the touching was a foreseeable occurrence in which case accident was excluded, contrary to the tenor of the previous direction that the real issue was whether the touching was unintentional / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the trial judge gave directions as to uncharged acts – where no re-direction was sought by defence counsel in respect of these directions – whether it was clear to the jury that the uncharged acts concerning each complainant were led as relevant to that complainant’s evidence only and to provide context for the charged offending against that particular complainant / Director of Public Prosecutions v Boardman [1975] AC 421; [1974] 3 All ER 887, cited Director of Public Prosecutions (UK) v P [1991] 2 AC 447; [1991] 3 All ER 337, cited HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, considered Hoch v The Queen (1988) 165 CLR 292; [1988] HCA 50, applied Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20, considered McPhillamy v The Queen (2018) 92 ALJR 1045; (2018) 361 ALR 13; [2018] HCA 52, considered Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, applied Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, considered R v Bauer (2018) 266 CLR 56; [2018] HCA 40, considered R v CBM [2015] 1 Qd R 165; [2014] QCA 212, cited R v Davidson [2019] QCA 120, considered R v Jones (2011) 209 A Crim R 379; [2011] QCA 19, cited R v MAP [2006] QCA 220, considered R v McNeish (2019) 2 QR 355; [2019] QCA 191, considered R v Nibigira [2018] QCA 115, considered R v Watson [2017] QCA 82, cited R v Wollaston [2018] QCA 43, cited Saoud v The Queen (2014) 87 NSWLR 481; [2014] NSWCCA 136, cited Velkoski v The Queen (2014) 45 VR 680; [2014] VSCA 121, cited
COUNSEL: B J Power, with L M Dollar, for the appellant/applicant D Balic for the respondent
SOLICITORS: Jasper Fogarty Lawyers for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent
FRASER AND McMURDO JJA: We have had the advantage of reading a draft judgment of Philippides JA in which the evidence is set out, making it unnecessary for us to do so.
We agree with her Honour that the distinct ground of appeal, relating to count 10, is established. However we have reached a different view from her Honour on the other counts. For the reasons that follow, these charges should not have been tried together, because the evidence of each count was not admissible in the proof of the other counts.
In Queensland, with one qualification,1 it is the common law which is applied to determine the admissibility of similar fact evidence. The common law of admissibility is that propounded in Hoch v The Queen,2 and confirmed in Pfennig v The Queen 3 and Phillips v The Queen.4
The common law allows, in an exceptional case, evidence to be admitted although it is relevant only because it demonstrates a relevant propensity or tendency of the accused.5 Evidence of the accused’s propensity may be admitted if it has a specific connexion with the commission of the offence charged, and there is no reasonable view of the propensity evidence which is consistent with the accused’s innocence.6 However similar fact evidence may be admissible because it is relevant in another way. It is necessary to understand how it is relevant, or in other words, the use to which it may be put, in order for a court to assess whether it has such a strong probative force, according to Hoch and Pfennig, that it should be admitted.
In Hoch, Mason CJ, Wilson and Gaudron JJ identified two ways in which similar fact evidence can be used. The first was later exemplified in Pfennig.7 The second was exemplified by Hoch itself. Mason CJ, Wilson and Gaudron JJ said:8
“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.
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 [1946] KB 531) or as corroboration (Reg v Kilbourne [1973] AC 729, at pp 749, 751 and 758) 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 at p 452 and Lord Cross at p 458; Sutton (1984) 152 CLR 528, per Deane J at pp 556-557. 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, at p 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.”
Similar fact evidence which does not raise a question of improbability lacks the requisite probative value that renders it admissible. When the happenings which are said to bear to each other the requisite degree of similarity are themselves in issue the central question is that of the improbability of similar lies: see Sims, at p 540; Boardman, at pp 439 and 459-460. See also Rupert Cross, “R v Sims in England and the Commonwealth”, Law Quarterly Review, vol 75 (1959), p 333; Piragoff, Similar Fact Evidence (1981), pp 38-47.”
(Emphasis added, footnotes omitted.)
In Pfennig, the trial judge directed the jury that they could use the accused’s previous conviction of the abduction and rape of another young boy as evidence of the identity of the offender if they were satisfied, on other evidence, that the alleged victim had been abducted by someone.
In R v McNeish,9 McMurdo JA said that the different ways in which evidence of an accused’s discreditable conduct might be relevant are illustrated by s 97 and s 98 of the Evidence Act in most other Australian jurisdictions, although the test for admissibility under that legislation is less stringent.10 McMurdo JA there said:
“The High Court has said that this legislation has made substantial changes to the common law rule, resulting in a test of admissibility which is less demanding. Nevertheless these provisions are illustrative. Where evidence is admitted under s 97, this is done to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind. Where evidence is admitted under s 98, this is done to prove that the accused person did a particular act, or had a particular state of mind, on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and circumstances in which they occurred, it is improbable that the events occurred coincidentally.”
“I am satisfied that the circumstances of the alleged offending in the present matter do possess such a strong degree of probative force, so as to displace the exclusionary rule that would normally apply, in relation to the charges relating to each complainant. In forming this view, I have not overlooked the applicant’s submission as to the timeframe of the offending, a period of some 20 years or thereabouts, or the obvious differences that do arise in relation to the offending. However, whilst I accept that the allegations of each complainant [are] not identical in every respect, I am satisfied that the offending, as described, has such a high degree of probative force in aiding to prove the offences that are alleged in relation to the defendant that it is appropriate that the joinder occur and that, therefore, the charges are properly joined.”
With respect, it is not entirely clear whether his Honour accepted all of the prosecutor’s submissions as to how the evidence was relevant. One of these submissions, recorded at [33] of the judgment, was that the evidence “establishes the applicant’s uncommon attraction or relationship to children or a willingness to engage in inappropriate conduct with more vulnerable members of society who are less likely to resist and to immediately complain”.
However, the way in which his Honour directed that this evidence could be used was clear from his summing up. His Honour’s directions, closely corresponding with the Benchbook, were as follows:
“The prosecution case is that each complainant is supported by the evidence of the other complainants as to what they say happened to them. The prosecution argues that the similarities of the defendant’s alleged conduct towards each of the complainants means that the evidence of each complainant supports the others and makes it more likely that what each complainant says about the conduct relating to them is truthful and reliable.
In other words, the prosecution says that there is such a similarity between the acts and the circumstances in which they occurred that it is highly probable the events – improbable, rather, that the events simply occurred by chance; however, before you can rely on a particular complainant’s evidence as to the other complainants, you need to be satisfied beyond reasonable doubt of a number of things. First, you must be satisfied that the evidence of each complainant is independent of each other. In that regard, I direct you that you cannot use the evidence of complainants in combination unless you are satisfied that there is no real risk the evidence is untrue by reason of concoction. The value of any combination, and likewise, any strength in numbers is worthless if there is any real risk that what the complainant said is untrue by reason of concoction by them. In other words, you must be satisfied that there is no real risk of concoction. A real risk is one based on the evidence, not one that is fanciful or theoretical, and in that regard, you will recall that there was mention in the evidence of [KW], of what she referred to as “word on the street”, and there was also evidence taken from a number of the other complainants when they were asked if they’d spoken to others of the complainants. You will recall, however, that there was little, if any, pursuit in relation to that discussion with other complainants, and you must assess, on the evidence before you, whether you think that there is untruth as a result of concoction.
Secondly, if you are satisfied that there is no risk of concoction, then you still must be satisfied that the evidence of the particular complainant under consideration is truthful and accurate as to the alleged similar conduct, and you must also be satisfied that the evidence of the other complainants is truthful and accurate as to the alleged similar conduct. Thirdly, you must be satisfied that the facts proved with respect to the particular complainant under consideration are so similar to the allegations involving the other complainants that there is no reasonable view of the evidence of those other complainants other than that the defendant committed the acts as alleged by the other complainants.
You will recall that the prosecution said that the similarities that they rely upon include that the girls, at the time that they say the offending occurred, were all of similar ages, they were all females, all the offending occurred within the defendant’s home or in proximity of the defendant’s home, such as the pool, and that they all were in a position where the defendant was either actually or ostensibly in a position of trust. From that, the prosecution argues that the facts proved to you are so similar that when judged by common sense and experience, they must be true, and that you can use the evidence of the complainants in combination, one with the other. They argue that with the absence of collusion, it’s objectively improbable that complainant A would complain in such similar circumstances of offending as against her by the defendant as to the alleged offending against the complainant B, unless the offending against complainant A actually occurred.
The defendant, however, argues that the allegations are not so similar that you can use the evidence of one complainant in support of the others. For example, you will recall that it was raised that there is no similarity said to exist between an attempt to kiss [NF] as opposed to the digital rape of [JC]. Further, the defence argues that you would not be satisfied that a particular complainant is truthful and accurate as to the alleged similar conduct, and thus, you would not use the evidence of any one complainant to support the other complainants. In summary, the evidence of any one complainant, who you accept as credible and reliable as to the alleged similarities, can be used by you as a circumstance which might confirm, support, or strengthen the evidence of another complainant, but that is only if you are satisfied, on all the evidence that you have heard, that there is no reasonable view of it, other than that the defendant committed the other acts alleged by the other complainants and that the possibility that the complainants are all lying can be rejected, and that it may be the occurrence of the alleged similarities is coincidence.
If you do not accept that such similarities exist, then you would reject the prosecution argument and look at the evidence in relation to each complainant independently, without having regard to the evidence of the other complainants.”
“I caution you, however, that you cannot use that evidence to reason something like, the evidence persuades us that he is the sort of person who would commit this sort of offence or is of bad character, and therefore, we will convict him of the charges.”
According to those directions, the value of the evidence was “in the improbability of witnesses giving accounts of happenings having [such a] degree of similarity unless the happenings occurred.”13 And the evidence was not to be used by the jury upon the basis that it proved a certain tendency of the appellant, from which it was to be inferred that he did the things with which he was charged.
Yet the respondent’s submissions in this Court seek to justify the admission of this evidence, and the trial of these charges together, upon the basis that the evidence demonstrated a tendency of the appellant, more particularly described as a tendency to engage in habitual gratuitous gratification. The argument emphasises what was said by the majority of the High Court in Hughes v The Queen,14 that “[d]epending upon the issues in the trial, however, a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it.”
As we have explained, that was not the way in which the jury were directed to consider the similar fact evidence in the present case. Moreover, in Hughes, the evidence was tendency evidence within s 97 of the Evidence Act 1995 (NSW), and the question was whether it could be admitted, according to that provision, as having “significant probative value”.
The common law test of admissibility has been described, in different ways, as a particularly demanding one: see the descriptions in Phillips at [54]. And in the same case, the High Court said:15
“Criminal trials in this country are ordinarily focused with high particularity upon specified offences. They are not, as such, a trial of the accused’s character or propensity towards criminal conduct. That is why, in order to permit the admission of evidence relevant to several different offences, the common law requires a high threshold to be passed. The evidence must possess particular probative qualities; a strong degree of probative force; a really material bearing on the issues to be decided.”
In the application of the Pfennig test, similar fact evidence must be assessed in the context of the prosecution case on the charge for which the evidence is sought to be tendered, and the test must be applied on certain assumptions. It must be assumed that the similar fact evidence would be accepted as true, and that the prosecution case on the count in question, apart from the similar fact evidence, may be accepted by the jury.
The test requires the similar fact evidence to be excluded if viewed in that context and with those assumptions, “there is a reasonable view of the similar fact evidence which is consistent with innocence”.16 Put another way, “the propensity evidence must be such that, when it is added to the other evidence, it would eliminate any reasonable doubt which might be left by the other evidence.”17
The difficulty in agreeing with the trial judge’s conclusion on this question can be illustrated, most starkly, by reference to counts 8 and 11. Count 8 involved the digital rape of a girl while she was asleep, having been drinking. On her version, the appellant would have thought that she was not sufficiently alert to detect what was happening to her at the time, which was that she was being digitally penetrated by him. Count 11 was an attempt by the appellant about nine years later to kiss another complainant, which she was able to avoid by putting a hand on him and pushing him away. There was a reasonable view of the event the subject of count 11 which was consistent with the appellant’s innocence of count 8. It was open to a jury to reason that it was one thing to conclude that the appellant had tried to kiss a girl, but another thing to conclude from that event that (as alleged in count 8) he had raped a girl by taking advantage of her being asleep after drinking. The two accounts did not have the requisite degree of similarity, such that absent collusion between the complainants, they could not have been given unless they were true.
In our conclusion, the same may be said of each other count, in comparison with count 8. It is true that count 1 occurred when the complainant was originally asleep. But in the event which was the subject of count 1 (alleged to have occurred about 13 years before count 8), the appellant could not have thought that his offending would be undetected: if the complainant wasn’t awakened by his approach, his rubbing her chest with ice would have done so, as he would have realised as he approached her. On the other hand, count 1 bears a strong similarity to the other counts, apart from counts 8 and 11.
Consequently, the evidence of each count was not admissible in the proof of every other count, and separate trials should have been ordered. On each count, there is a risk that the jury may have convicted the appellant by using evidence which was wrongly admitted into evidence on that count. The appeal should be allowed and all of the convictions should be quashed. A re-trial should be ordered on all counts. It should be further ordered that counts 1-7 and counts 9 and 10 be tried separately from counts 8 and 11. Count 8 should also be tried separately from count 11, should the prosecution elect to proceed on that last count.
in respect of the complainant KD, one count of indecent treatment of a child under 16, under care, particularised as rubbing ice on her breast area (count 1);
in respect of the complainant J, two counts of indecent treatment of a child under 16, being his lineal descendant, particularised as touching her breasts in the course of a massage (count 2) and exposing her breasts (count 7);
in respect of the complainant GC, two counts of indecent treatment of a child under 16, particularised as touching her breasts and/or thigh in the kitchen (count 3) and her vagina and/or breasts in the pool (count 4) and a further such count while she was under care particularised as touching her vagina while massaging her (count 6);
in respect of the complainant KW, one count of indecent treatment of a child under 16, particularised as touching her on the breast and/or vagina area (count 5) and one count of sexual assault particularised as touching her in the breast area (count 10);
in respect of the complainant JC, a friend of the appellant’s daughter, one count of digital rape (count 8);
in respect of the complainant AW, one count of sexual assault particularised as touching her breast area (count 9); and
in respect of the complainant NF, one count of attempted indecent treatment of a child under 16, under care, particularised as attempting to kiss her on the mouth (count 11).
The appellant was sentenced on 1 April 2019 to an effective sentence of six years imprisonment. Parole eligibility was set at 28 March 2022 and a declaration was made as to three days of presentence custody.
By an amended notice of appeal, the appellant appeals against his convictions on the grounds that:
the pre-trial hearing judge erred in ruling that all of the counts were cross admissible and in refusing the defence application for separate trials;
the trial judge erred in his directions to the jury about the way in which they might use the evidence of one offence as proof of another;
the trial judge erred in his directions to the jury on count 10 in relation to the way the jury should consider the contention that the indecent assault alleged in that count occurred by way of a non-deliberate touching; and
the trial judge erred in his directions to the jury on uncharged acts.
The counts
The evidence
Complainant KD (count 1)
Count 1
KD gave evidence of an incident in 1993, when she was aged 15 and was babysitting the appellant’s children at the farmhouse. She was in a bed made up in an open alcove when the appellant and his wife returned home. She heard the appellant rummaging in the freezer and getting some ice. He came into the alcove and sat on her bed. He then lifted her T-shirt nightie and placed ice on her chest, rubbing it on her breasts and nipples saying, “You look hot” in a hushed voice. She froze and then rolled away from him and he left the room (count 1).20
KD gave evidence of preliminary complaints21 made a couple of days later to a friend, the mother of another friend and to her own mother, who all gave evidence generally consistent with KD.22
Uncharged acts
KD also gave evidence of an uncharged act that occurred earlier when she was 15 whilst on a family excursion to a family hut in a remote area at a cape where they would go fishing and crabbing. She said that, on that occasion, the appellant picked her up and was going to try to throw her into the water and that she wrapped her arms around his neck and held on quite tightly as she did not want to be thrown into the water fully clothed. The appellant grabbed her breast and squeezed for some seconds, when she released him, and he then threw her in the water.23
She said she became aware from her sister that there were other victims and that she then began counselling before going to the police in Victoria, where she was living, to give a statement in 2016 and she gave a further statement in 2018 when requested to do so.24
Complainant J (counts 2 and 7)
Count 2
J gave evidence of an incident in March 2004 when she was 13 years old. Her evidence was that she returned home after attending a swimming carnival and mentioned to her parents about how sunburnt she was. The appellant told her to go and lie down in the air conditioning and he would put some aloe vera on her back. She went into her room and took off her shirt, leaving her bra on and lay face down on the bed. The appellant came in and sat on the side of the bed. He unclipped her bra strap, took her arms out of the straps and slid the bra to the floor. She did not say anything when he did that.
She said the appellant rubbed the aloe vera on her back and “with each stroke, he was moving his hands further towards the side and started to grope – not – just brush over the sides of my boobs” (count 2). She felt “very uncomfortable about that but … couldn’t do much other than just tuck [her] arms in to stop him from being able to do it again”.25 She clarified that the motion was “like, cupping the side of [her] boob” and that “he really only did it for, maybe, one, like, two strokes on each side before [she] tensed up and he couldn’t have done it because [her] arms were so tight there”.26 In cross examination, she said that the sunburnt area was only at the top of her back but the appellant rubbed down to underneath her breasts and cupped each breast going from one side to the other. He was breathing rapidly and heavily.27 She said she “tucked [her] arms in and if he had tried, he wouldn’t have been able to get his hand through there anymore”.28 She tensed her whole body.29 He then and said, “All right. That’s all done” and patted her on the back and said quietly, “Unless you want to roll over and I can do the front” in a sleazy, sultry voice.30 She said that all she could do was make it seem like she thought he was joking and leave.31
Count 7
Complainant GC (counts 3, 4 and 6)
Uncharged acts
Count 3
Count 4
GC also gave evidence of an incident that occurred around Christmas 2004, when she was 13 years old. She was playing in the pool with J when the appellant also got in the pool. He played with J by throwing her into the pool. The appellant called her over to join in. He grabbed her, putting his right hand between her legs, cupping the outside of her vagina and his left hand being beneath her breast (the fourth finger was touching her breast) (count 4) and threw her into the pool.41 She said she was thrown into the pool using the same hand positions seven or eight times.
The appellant’s daughter also gave evidence of witnessing the incident in the pool constituting count 4. She and GC were in the pool with the appellant, who started playing games, throwing them into the water. She noticed that the appellant touched GC in a different way when launching her into the water, touching parts of her he did not need to. He had his hands between her legs, touching her genitals. She described him having his hand on GC’s bottom with his fingers between her bottom cheeks and on her genitals. She saw him do this at least once.42
Count 6
GC also gave evidence in respect of an incident in September or October 2005 when she was 13 years old and had had a sleepover with J. She remembered waking up and that she had “cracked [her] neck”.43 She heard a voice asking if she was okay and opened her eyes to see the appellant sitting next to her, beside the mattress. He was speaking in a whisper. She responded that she was fine but he insisted on giving her a massage which she declined. He then picked her up and took her to his bedroom and sat her on the bed. He took out a fold out massage table and told her to take off her pyjama pants and shirt, which she did, leaving only her underpants and bra on. He told her to lie face down and that it was OK, he was a professional. She then lay on the massage table face down. The appellant then unclipped her bra so that it remained lying beneath her and slid off her underwear.44 The appellant then massaged her back. She said, “It went from my feet to my calves to my thighs and then my inner thigh, touching the outside of my vagina, and then went to my bottom, my lower back, up the sides and the side of my breast” (count 6).45 She did not recall how long the massage went on for. He touched her vagina only once. She also recalled that during the massage, the appellant had pressed his pelvis against her side.
After it was finished, she went back to J’s room and called her mother on her mobile to pick her up. She left the house and her mother picked her up. She told her mother about the incident a couple of years later. She went to the police in 2007 and told them what had happened and spoke to the police again in 2015.
J also gave evidence concerning this incident. She said she woke up in the morning and GC was not on the mattress in her room. She heard voices in her brother’s room, went to the room and looked in. She could see just GC’s feet on the massage table, her father’s back and that he was giving her a massage.46
GC’s mother also gave evidence of picking GC up and driving her home. She said GC was quiet and out of sorts and that she told her in the car that she had something to tell her and said that the appellant had given her a massage and that she felt really uncomfortable. When they got home, GC also said that she felt uncomfortable with the way the appellant picked her up and tossed her in the pool and that he had his arm across her breasts and also mentioned him wrestling with her.47
Complainant KW (counts 5 and 10)
Count 5
Count 10
KW gave evidence of a further incident in February 2010 when she was 17 years old.49 By this time, she was in a relationship and sharing a room with M in the farmhouse where the appellant was also living. M and the appellant worked together in operating the farm and an earthmoving business.
On the occasion in question, it was late in evening and she and the appellant were alone in the farmhouse, as M was out. The appellant asked her to give him a backrub, which she hesitatingly agreed to, accompanying him to his office. The appellant, who had no shirt on, sat in a chair facing a computer. She stood behind him and gave him “a neck rub” for a minute or two. The complainant described the conduct constituting count 10 as follows, “While I was rubbing his back and he was facing the other way, he had reached up behind his shoulders and had grabbed both of my breasts, and then I had jumped back”.50 She had a loose shirt on and no bra. She said that the appellant “arched back with his hands going over his shoulders”51 and that he reached back and intentionally groped her breasts. She said that the grabbing of her breasts had been “with his hands, full grip, and squeezed them”.52 Then the appellant spun around and said that he “shouldn’t have done that”. The complainant agreed and left to go to her room. She locked the door and texted M that the appellant had touched her. She talked to M about it when he returned home and also told him about the pool incident. They moved out of the house a few months later.53
She said that she contacted police after she became aware that a complaint had been made by KD and was contacted by J to inform her that she had also made a complaint.54
Complainant JC (count 8)
Uncharged acts
Count 8
JC gave evidence of an incident in July 2006 when she was 16 years old.57 She had been at a party with J, close to J’s house. She had some drinks at the party and afterwards the appellant picked both of them up as she was going to sleep at J’s house. The appellant made milo for them and she went to sleep in J’s room which had two single beds. She woke feeling groggy and felt hands on her. The touching was outside her pants, then underneath her pants and inside her vagina. She said that she felt two fingers moving in and out of her vagina for about five minutes (count 8). She started to wake up. She initially thought that it was her boyfriend (who was not present) and said to stop because J would wake up. She opened her eyes and saw a movement in J’s bed. She then saw the bedroom door open and the appellant leaving her room. The following day, she was sitting outside with J and told her that she had something to tell her. She said, “You probably won’t talk to me again after I tell you because it’s about … a family member”. She then told her what happened and J responded that she “saw” the appellant in the room.58
J gave evidence of witnessing the incident.59 She said she woke up to see the appellant sitting on the edge of JC’s bed with his face towards JC. The blankets were moved off her lower half and she could see his hand under a sheet and he was moving it back and forth like a thrusting movement. He did that for about 30 seconds to a minute. At first, JC seemed to be asleep and not moving, then she started to shift as it got further along and then she rolled over completely. She then saw the appellant pull the sheet back, pat her and then walk out of the room. She felt sickened but did not raise the matter the next day with JC. However, later that day when she and JC were sitting outside, JC said, “I need to tell you something about someone close to you and you’re never going to feel the same way about them again”. JC said she had a dream that she was “getting fingered” by her boyfriend and then realised that it felt very real and then she woke up. JC said she saw “your dad sitting on my bed” and “you probably don’t even believe me”. J said she responded, “I do and I know it was real because I saw him there too”. JC asked her not to tell anyone about it and they did not discuss it further.60
Complainant AW (count 9)
Uncharged acts
AW gave evidence of an uncharged act concerning an incident when she was picked up by the appellant his wife and J. They drove to the farmhouse where AW was going to stay the night. When they arrived, the others went inside except for her and the appellant. She was on the driveway and looking at the stars. The appellant stood behind her and placed his hands on her shoulders and massaged them. She was not comfortable with that and said she had to join J and ran inside.61
AW also mentioned another uncharged incident when the appellant drove her, J and another friend to the family hut. He was to take them out on the boat and then return home the same day, which is why she went. However, when they got there, the appellant decided to stay the night.62 She said that on at least two occasions during the night the appellant came into the room where they were sleeping. She and the friend were sleeping in a top bunk with J in a lower bunk. Each time the appellant came into the room, he reached up to grab her shoulder. J would be startled, wake up and ask why he was in the room. He responded that he was checking on them and would quickly depart. The appellant left the next day and returned a few days later to pick them up.63
Count 9
Complainant NF (count 11)
Count 11
NF and her brothers moved into the farmhouse in 2012 with their mother when the appellant commenced a de facto relationship with their mother. NF gave evidence of an incident involving the appellant in early October 2015 when she was 15 years old. At the time of the incident, her mother was at work and her brothers were out. She was on the lounge watching TV when the appellant came and sat down in front of her about a metre away. He started talking about her sending nude pictures of herself and that she should not do that. She responded that she was not stupid enough to do that. The appellant then moved his head slowly towards her in an attempt to kiss her (count 11). His face came within 20 cm of her face66 and then she put her hand on him and pushed him away. Nothing was said by either of them as this occurred. She was scared and did not talk to him after that.
NF said that the previous night, when her mother and brothers were asleep, she had been watching TV and went to have a shower. The appellant went outside to do “something with the washing”. The washing line was on the back verandah. The bathroom window overlooked the verandah.67 (The incident was the subject of evidence by her mother of an admission made by the appellant of looking at her in the shower through the window.)
A few weeks later, her mother asked her about the appellant and if “that had happened”. They did not have a full conversation about it. Soon after, NF moved to stay with her father.68
Evidence of admissions
Evidence of J
Evidence of J’s mother, the appellant’s former wife
Evidence of the appellant’s son, M
“I said, ‘Well, you’ve … fucked it for me anyway.’ I said, ‘[KW’s] never going to live here. I’m not.’ And he said, ‘What are you talking about?’ I said, ‘You grabbed her on the boob.’ And he said, ‘Yeah, I did that.’ He said, ‘But if every woman I grabbed on the boob reported me, I would’ve been in jail years ago.’”
There was also another confrontation with his father about his father touching KW’s breasts.75 He gave evidence that in 2013 he told the appellant that he had enough reasons to be angry with him and when asked what he meant, M said (while moving his hands behind his shoulder), “… you know, ‘What’s that [KW]? Oh, it’s your boobs?’”. The appellant responded, “yeah, you’re right. I did do that. I’m sorry”.76
M gave evidence about another conversation relevant to count 11 where the appellant told him he tried to kiss NF and referred to his “fucked up mind”.77
Evidence of KW
Evidence of NF’s mother
NF’s mother gave evidence, relevant to count 11, of noticing a lack of interaction between NF and the appellant and having a discussion with the appellant on 2 November 2015. She asked him what was going on, he responded, “‘Well, you’re going to find out anyway’ or ‘You’re going to be told. I was watching [NF] in the shower and I kissed her’”.79 She later asked NF about it. NF said that he had kissed her and she pushed him away and that she had not wanted to say anything as she thought her mother would be angry.
Later, after everyone had gone to sleep, the appellant approached her and said that they needed to talk. He asked if he went away and got help could he come back, to which she replied no and went to bed. He woke her up at 4 o’clock in the morning and said, “I have been thinking … of taking a gun and shooting myself or I could go to the police or I could leave” and then said, “I have chosen to leave”.80 He said that she could stay in the house with the children until NF finished school. He left some days later and did not return. She and her family moved out some months later.
The appellant’s evidence
The appellant denied having done any of the acts constituting the offences alleged against him and denied the accounts given by the complainants concerning the uncharged acts and the charged counts, except as follows.
In respect of KD’s accounts of uncharged conduct at the hut at the Cape, he agreed he would have thrown her into water but that was because she was being cheeky.81
As to count 2, the appellant agreed that on one occasion he massaged aloe vera onto J’s back while she lay on a bed and that he “unclipped her bra” to do so but said that was so he “didn’t get aloe vera on her bra”82 and he only rubbed where she was sunburnt. He did not remove the bra completely.
As to count 4, the appellant agreed he would have thrown GC into the pool but said it was a game he played with his kids and denied that he held her with his hands between her legs or near her breasts.83
As to count 6, the appellant agreed that he had given GC a massage but said that that occurred in the context of his passing J’s bedroom when GC complained of a sore back. He offered to give her a massage and she went into the master bedroom and lay face down on his massage table. He only rubbed her back and the backs of her legs.84 He said he did not use oil on her “because she was a child”.85
As to count 9, the appellant agreed that he saw AM on the occasion of the 21st birthday party of one of his sons and that he did call her onto the computer area but said he did so because he “was concerned that she was drunk” and “wanted to make sure she was okay”.86
As to count 10, the appellant agreed that KW gave him a massage and that, in the course of it, he touched her breasts but said that he “accidently brushed her while stretching [his] shoulders”, explaining that he got “severe spasms between [his] shoulders”.87 He said KW stopped massaging and, when she said that he had touched her on the chest, he apologised and said he “didn’t mean that”.88 He agreed that he had a conversation with M about KW and said that he told him that he had accidentally brushed KW on the chest during a massage.
Ground 1 – Error of law in pre-trial ruling that all the counts were cross admissible and should therefore be heard in the one trial
Relevant principles
“It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence. Those categories are not exhaustive and are not necessarily mutually exclusive.”
In HML v The Queen,96 Hayne J referred to Pfennig as demonstrating that the use of expressions such as propensity and disposition “must not be allowed to set up false dichotomies between evidence that establishes disposition or propensity and evidence that has some other use”.97 His Honour stated that “Often evidence will not only reveal a disposition to commit criminal or other discreditable acts but also have other uses at trial”, observing, “That is why, as Julius Stone pointed out seventy years ago98, the relevant root principles are more likely to be found in comparisons of probative value and prejudicial effect than they are in the attribution of labels like ‘propensity’ or ‘disposition’”.99
The common law, which applies in Queensland,100 does not distinguish between propensity and similar fact evidence in the same way as legislative interventions in other States do, under the various uniform Evidence Acts, in dealing separately with propensity under the tendency and similar fact under the coincidence rules. In Pfennig,101 the majority affirmed the test espoused in Hoch v The Queen102 that the basis for the admission of similar fact evidence lies in its possessing “a particular probative value or cogency by reason that it reveals a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged”.103 It was explained104 that, in Hoch, the evidence was referred to as similar fact evidence rather than propensity evidence because the evidence lent itself to that classification and that for propensity or similar fact evidence to be admissible “the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged”.
“This relationship, from which support is derived, may take many forms and while these forms may include ‘striking similarity’ in the manner in which the crime is committed, consisting of unusual characteristics in its execution the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connexion.”
In Pfennig, it was observed that evidence of “a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it will have greater cogency” where it has “some specific connexion with or relation to the issues” for determination in the case.128 It is thus essential at the outset to bear steadfastly in mind the issue in respect of which the evidence is sought to be led as relevant, for as emphasised in Phillips, that is central to the identification of relevance and of probative force.129
The “different complexion” of such evidence, arising from the issue in respect of which it is led, was illustrated in Hoch130 by the distinction made in that case as to whether the matters constituting the similar facts were not in dispute as opposed to where they were in dispute. The importance of that distinction was taken up in Pfennig131 which concerned the admissibility of propensity evidence coming within the following group described in Hoch:132
“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.” (emphasis added)
In the other category of case (where the matters comprising the propensity or similar fact evidence are disputed as was the case in Hoch133), the evidence “is still relevant to prove the commission of the acts charged”134 and its probative value, as stated in Hoch, “lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred”.135 The different complexion of the similar fact evidence in such a case arises because “the issue is whether the acts which are said to be similar occurred at all” and the evidence is relevant to prove the commission of the disputed acts which is “the thrust of its probative value”.136 In that regard, when the evidence relied on as similar fact evidence is itself in dispute, “the central question is that of the improbability of similar lies”137 and the probative force is derived from the degree of similarity of the facts testified to by the various witnesses, being such that “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”.138
In Hughes v The Queen,139 the majority likewise emphasised, in the context of considering the propensity provisions of the Evidence Act 1995 (NSW), that the probative value of evidence sought to be adduced will vary depending on the issue that it is adduced to prove, for example, whether the issue is identity of the offender for a known offence (where the probative value of the evidence will depend on a close degree of similarity) or where the issue is the occurrence of the offence, as to which it was said:140
“In the trial of child sexual offences, it is common for the complainant’s account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case.”
The pre-trial ruling
On 6 February 2019, the primary judge dismissed an application brought by the appellant for separate trials for each of the complainants on the basis that what was alleged by one complainant was not cross admissible to prove the allegations by another complainant.
On behalf of the appellant, it was argued before the primary judge that the evidence did not fulfil the Pfennig test in that no feature of the evidence reached the necessary probative value to render it admissible and that, whilst a striking similarity was not essential, it was a usual circumstance of admission. It was argued that, as in Phillips, the similar fact evidence did not possess particular probative qualities.141 This was not a case where the degree of similarity demonstrated the unlikelihood of all complainants making similar complaints. In that regard, reliance was placed on R v MAP142 and R v Nibigira.143
The respondent, on the other hand, submitted that the evidence of each complainant was cross admissible because of the probative value that such evidence carried in relation to the facts in issue, being whether the alleged offending did occur and the objective improbability of similar lies by the seven complainants.144 The similarities relied on were that:145(a)all of the offences were sexual in nature;(b)they were committed upon the same character of victim, being an adolescent female of a similar age range;(c)all of the victims were known to the appellant;(d)three of them were friends with his daughter and were at the appellant’s home as a result of that friendship;(e)on each of the occasions, he had the care of the victim;(f)all of the offending occurred within his home, which included that offending within the pool;(g)the offending was either the touching of the breasts or the touching of the vagina (but for the one occasion where there was some penetration); and(h)unusually, the touching of each was brazen and the appellant assaulted each victim in the immediate presence of a family member (or as they were in the home).
In oral submissions,146 the respondent sought to distinguish the decisions in and and noted that the latter did not refer to or this Court’s decision in . The primary judge recorded the submission that the similar fact evidence was said to establish an uncommon attraction or relationship to children and a willingness to offend in a brazen manner against adolescent children under his care. The strong probative value of the similar fact evidence was that it demonstrated more than a mere propensity to engage in sexual offending against young children. Rather, it was derived from the children being of similar age, that they were in the appellant’s home, that they were under his care and that they were present there when others were present. Notwithstanding that there might be some differences in the ultimate sexual acts alleged, there was considerable similarity in the manner with which the appellant sought to exploit the vulnerability of those victims and the unusual and unlikely circumstance of there being a risk of imminent detection.
Appellant’s submissions as to ground 1
The appellant’s counsel argued that the exclusionary rule in Pfennig and Phillips, as described and applied in decisions of this Court, such as MAP, Nibigira155 and R v Davidson,156 demonstrated that the evidence of each of the complainants was not cross admissible and separate trials for each complainant should have been ordered.
It was submitted that the aspect of reckless persistence in offending in the vicinity of others or the “brazenness” of the sexual conduct alleged against the appellant was not capable of being regarded as a distinctive feature nor as providing a unifying feature. Reference was made to Phillips, and to its application in MAP and Nibigira, where the aspect of recklessness or brazenness was not considered to provide a sufficient link. It was submitted157 that, given the high degree of specificity required to satisfy the Pfennig test, it was unlikely that the feature of the brazenness of conduct as a broad descriptor could suffice.
The decision in Davidson, where a distinction between levels of offending in relation to evidence sought to be adduced and that charged was not fatal to its admission, was distinguishable and to be viewed in the context of the high degree of unity in other respects (including in time) present in that case.158
It was submitted that in the present case there was a lack of unity in time. Emphasis was placed on the time span of 23 years between count 1 and count 11 and that, while there was some unity in time between counts 2 and 9 (2004‑2006), there was a time gap of 11 years between count 1 (1993) and count 2 (2004) and, leaving aside count 10 (where the act of the touching was not disputed) a time gap of nine years between counts 9 (2006) and 11 (2015). In that regard, reliance was placed on McPhillamy v The Queen159 (acknowledging that it concerned the so called “tendency rule” under the Evidence Act 1995 (NSW) rather than the coincidence test). It was submitted160 that, in that case, the absence of evidence that the appellant acted on his sexual interest in young teenage boys in the decade between the first and second alleged offences was found to make the inference that he possessed the tendency at the date of the alleged offences weak, in circumstances where the applicable test for admissibility under the relevant legislation being considered was the less demanding criterion of “significant probative value”.
Respondent’s submissions as to ground 1
The respondent reiterated similarities in the offending submitted before the primary judge, including that the complainants were female in a similar age group who the appellant had access to when each was present in the household by virtue of a familial connection or as friends of the appellant’s children and who (except for one count) were touched on the area of the breasts or vagina. The offending also exhibited a pattern of opportunism that demonstrated his specific sexual interest in young girls and fortitude to act on that sexual interest in a particularly brazen manner. But the feature of brazenness was only one aspect of similarity in the alleged offending to be considered in the context of the prosecution case as a whole.
Reliance was placed on the statement in Pfennig162 that evidence of a particular distinctive propensity as demonstrated by acts constituting a particular manifestation or exemplification of that propensity will have cogency where it has some specific connexion to the issues. Accepting that the issue of similarities as to the conduct went to the improbability of the complainants’ versions being other than as alleged, the brazen nature of the offending was able to be viewed as a manifestation of a particular distinctive propensity to offend habitually, on a gratifying urge and cross admissible as such.163
As to the difference in the actual acts constituting the charged offences, the respondent referred to Hughes and, accepting the different statutory context analysed there, relied on the statement of the majority that, depending upon the issues in the trial, “a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it”.164 It was submitted that the following statement in Hughes was pertinent to this case:165
“The evidence as a whole was capable of proving that the appellant was a person with a tendency to engage in sexually predatory conduct with underage girls as and when an opportunity presented itself in order to obtain fleeting gratification, notwithstanding the high risk of detection.”
It was submitted that the primary judge was correct to find a strong degree of probative force in the similarities in the evidence of the complainants as to the circumstances of the alleged offending, despite some differences in the actual acts constituting the offences charged and the differences in time frames, particularly given the common aspect of the brazen nature of the offending, which provided an unusual contextual feature to each complainant’s account. In those circumstances, the probative value of the evidence was in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred.
The similar fact evidence also went to dispelling an innocent explanation for the touching the subject of count 10.
Consideration
Similarity of circumstances of alleged offending
MAP and Nibigira do not support the proposition that, in multiple complainant sexual offending cases, similar fact evidence of brazen and reckless sexual offending may not, in an appropriate case, combine with other features to constitute sufficiently probative evidence of similarity in the circumstances of the offending, going to proof of the occurrence of the offences as alleged by the prosecution.
In MAP, it was held that an application for separate trials was wrongly refused in a case concerning a male teenager charged with digital rape of two 15 year old female complainants. The appellant was convicted of a count of rape that was alleged to have occurred in circumstances where there had been heavy drinking and an invitation by the appellant to “come outside” for a sexual encounter. He was acquitted of the count against the other complainant, which was alleged to have been a sober act accompanied by threats. The conduct on each occasion was alleged to have occurred in the same room of a house, while the complainant was sleeping and there was someone nearby. The evidence of each complainant was relied on as going to the improbability that both complainants could have lied or been otherwise unreliable in their evidence as to what occurred while another person was sleeping nearby.166
On that matter, Keane JA referred to Phillips (also a case where evidence of offending by a male teenager against young girls of about his own age was sought to be admitted as similar fact evidence). His Honour considered it significant that in Phillips similar fact evidence indicative of recklessness in persisting with offending near others who might have been attracted by protests was not found to possess a sufficiently strong degree of probative force for the exclusionary rule to be displaced. His Honour held that, on the basis of that approach, “the brazen opportunism” engaged in by the appellant, on the complainants’ evidence, would be characterised as “unremarkable and not uncommon” for the purpose of determining its probative force.167 In addition, there were dissimilarities in the alleged offending against each complainant (drunken conduct associated with an invitation to sexual activity compared with a sober act accompanied by a threat) which meant that it was not possible to conclude that there was an underlying pattern in the appellant’s conduct.168
In Watson, which concerned multiple counts of sexual offending by a teacher against his pupils, the contention that the counts should have been severed on the basis that the similarities in alleged sexual offending by a teacher against pupils was “entirely unremarkable” was rejected. Sofronoff P (with the other members of the Court agreeing), distinguished the sexual offending by a teacher against pupils from the characterisation of the sexual offending in as the sexual proclivities of a teenaged boy and being largely in keeping with behaviour of boys not guilty of rape and for that reason entirely unremarkable and lacking a sufficiently high degree of probative value. His Honour observed that, while primary school teachers who preyed on pupils might exhibit similar patterns of behaviour so that they became unremarkable, the evidence of such behaviour was admissible in that case “precisely because such behaviour, while it might be normal for such offenders, is remarkable for innocent people”. A similar point was made in , discussed below.
Dissimilarity in the actual acts constituting the alleged offending
“… in sexual offence cases, it is not necessary that the particular acts that constitute the uncharged offences and the particular acts that constitute the charged offence be of the same kind. Evidence of uncharged sexual offences may be relevant and highly cogent even if the acts that constitute those offences are different from the charged offence.” (original emphasis)
“In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.” (emphasis added)
His Honour observed that to be admissible on that basis, a link was required between the facts and circumstances of one offence and the others such that the evidence had the degree of probative force described in Phillips. His Honour held that, while the offences of rape were more serious than the other offences, there was a sufficient link between the offences as to make the evidence of one offence strongly probative in the proof of another.181 That link was that the offences committed by the appellant were all committed “in relevantly identical circumstances” and against an unsuspecting and vulnerable complainant, and with the apparent belief by the appellant that the victim would find the experience to be agreeable, or at least would not complain.182 Gotterson JA distinguished Nibigira while also pointing out that, in that case, the offences against A and D (which included a count of rape against A) were ordered to be heard together as were the offences against B and C (which also included a single count of rape against B).183
In Bauer,184 the Court referred to Hughes as illustrative of the proposition in the paragraph quoted in Davidson concerning cases of charges of sexual offending against multiple complainants*.* It observed that the conclusion by the majority in Hughes that particular features of the offending “imbued the subject tendency evidence with significant probative value reflected the process of probability reasoning that applies to cases where an accused is charged with a number of sexual offences committed against a multiplicity of complainants”.185 The probative value of the tendency evidence in Hughes was in proving a particular disposition that was “unusual as a matter of ordinary human experience”, being the “inclination on the part of a mature adult to engage in sexual conduct with underage girls” combined with “a willingness to act upon that inclination”186 opportunistically as the occasion presented “in social and familial settings and the work environment”,187 which also reflected a “disinhibited disregard of the risk of discovery” that was itself an unusual feature proved by the evidence. Its probative force was that it was capable of removing a doubt which the brazenness of the alleged conduct might otherwise have raised and in rendering each complainant’s account of misconduct less liable to be rejected as improbable as a matter of “ordinary human experience” and thus “unworthy of belief”. Proof of the particular tendency was not deprived of significant probative value (the relevant statutory criterion) because, given the high degree of opportunism, “the appellant expressed his sexual interest in underage girls in a variety of ways”.
“The appellant’s preparedness to commit the offences against E made it more probable that the appellant had behaved towards them in a similar way and for the same reasons. Their accounts evidenced exactly the same sexual proclivity, the same exploitation of a position of trust and authority and, if it matters at all, the same focus upon the girls’ vaginas. The age and gender of the complainants was itself significant. To that feature could be added the fact that, together, the three sisters constituted a single captive pool of pre-pubescent victims, every one of whom the appellant came to exploit sexually. In these circumstances, the fact that the appellant’s offending against E did not progress to actual rape does not matter for the same reason that differences in ‘operative facts’206 generally do not matter in such cases.” (footnotes included from original)
In reaching that conclusion, the majority rejected the merit of the appellant’s argument which sought to avoid the significant probative force of the evidence as to the circumstances of the alleged offending by focussing upon the differences, particularly in degree, in the specific offending acts as flawed in that it misconceived the Pfennig test.207 The misconception arose because the probative force of the similar fact evidence was sought to be assessed “in isolation”, when its force was to be assessed in conjunction with the whole of the evidence.208 The significant probative value of the evidence of E went to the similarity of the circumstances of the offending against her in relation to the counts involving her sisters.209 In respect of each count, E’s evidence compellingly increased the probability of the other complaints being true, “a probability of which the jury would otherwise have been unaware”.210 In that regard, the “determinative point” was that the “significant probative value of the similar fact evidence so enhanced the collective force of the relevant prosecution evidence as to leave no reasonable view of the similar fact evidence consistent with innocence”.211 Given the significant probative value of the similar fact evidence as to the similarity of the circumstances of the offending, it mattered not that “[t]he similar fact evidence did not specifically aid in proof of the details of the sex offending” as “other relevant prosecution evidence did that”.212
McMurdo JA (who was in dissent) referred to the “different ways in which evidence of the accused’s discreditable conduct might be relevant” as discussed in Hoch as being illustrated by the distinction made in the Evidence Acts applicable in other States between the “coincidence rule” and the “tendency rule”.213 His Honour held that E’s evidence was presented as what might be called coincidence evidence. It was not admissible on the counts concerning L or M on the basis that there was a reasonable view of E’s evidence consistent with the appellant’s innocence of the offences against L or M. That is, “it was one thing to conclude that the appellant had done those things to E, but another to conclude from that that he had engaged in the horrific and sustained abuse of the other girls”. Although there were similarities in the accounts of E, L and M, the differences were such “that it could not be concluded that, if E was telling the truth, so must L and M have been doing so”. E’s evidence thus lacked the requisite probative force in the proof of the counts concerning L and M and vice versa.
Dissimilarities in the circumstances of the alleged offences
There are not, in the present case, material dissimilarities in the circumstances of the offending and in that regard, this case can be contrasted with the decisions relied on by the appellant of MAP (where drunken conduct associated with an invitation to sexual activity was contrasted with a sober act accompanied by a threat) and Nibigira (where one group of offending occurred when the child was alone in the appellant’s vehicle and the other in the appellant’s house where others were present).
The same can be said of McPhillamy. In that case, the evidence of two students (B and C) of sexual offending against them by the appellant while an assistant housemaster at a college when they sought him out in his bedroom because they were homesick and upset was held not to be admissible as probative tendency evidence216 in a trial of sexual offending against a complainant altar boy (A) when the appellant followed him on two occasions to the public toilets of a church. The tendency evidence of sexual misconduct towards B and C did not provide a sufficient link with the offending concerning A. The “supervision” exercised over B and C as a housemaster over vulnerable homesick boys in his care who sought him out had little in common with the supervision exercised in the role of acolyte over A as an altar boy. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom was also to be contrasted with the conduct of following of A into a public toilet. Proof of the offending against B and C a decade earlier was thus not capable of affecting the assessment of likelihood of offending against A to a significant extent.217
Edelman J referred to Hughes where, as in McPhillamy, tendency evidence was led to establish the commission of the offence and to the statements by the majority that:218
“The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence.”
His Honour observed that as to the first matter, unlike in Hughes where the tendency evidence was also expressed in reasonably general terms, the tendency evidence in McPhillamy was given only by two witnesses whose evidence involved two incidents a decade earlier.219 As to the second matter, the tendency was expressed at a high level of generality and the reference to supervision was not said to show a tendency to abuse his authority over children “in order to facilitate acts of the nature of the alleged offending”.220 Further, it was not alleged that “the appellant had a tendency to act impulsively with a risk of detection” nor that “the acts, or their circumstances, bore any similarity to the alleged offences, other than as demonstrating a sexual interest in early teenage boys”.221
The circumstances linking the sexual offending in the present case were that the offending occurred in the house or pool against young female complainants to whom the appellant had access because of their familial relationship or friendship with family members in disregard of the risk of detection. That is to be contrasted with the dissimilarity in circumstances of offending in McPhillamy where taking advantage of teenage boys who sought him out in the privacy of his room was contrasted to following a teenage boy into a public toilet.
Remoteness in time
Conclusion
Leaving aside count 10 (where the act of touching was admitted but not that it was intentional), in the present case, the similar fact evidence went to the issue of proving the occurrence of the acts constituting the offences charged.
The evidence of each complainant, if accepted, proved that the appellant had a tendency to have a sexual interest in female children and acted on that tendency by taking advantage of their presence in the home environment to satisfy a sexual urge in such a brazen manner that he disregarded the risk of detection from the presence of others in the vicinity. There was thus, in the present case, a high level of similarity in the circumstances of alleged offending against the complainants that linked the sexual offending charged in each count. This was a case where, as stated in Hughes,224 given the facts in issue, the tendency to act in a particular way was identified with sufficient particularity to have probative value, notwithstanding the absence of similarity in the acts which evidenced it.
The probative value of the similar fact evidence lay in the identification of the similarity of the particular circumstances in which the several complainants testified that the sexual offending occurred. The probative value went to the improbability of the complainants telling similar lies as to the circumstances of the offending against them and raised the objective improbability of the offences occurring otherwise than as asserted by the prosecution. It excluded a reasonable explanation for the conduct consistent with innocence. It rendered objectively improbable that the seven complainants would each falsely allege that the appellant engaged in sexual activity in such particular and unusual similar circumstances. Applying the reasoning in McNeish, that evidence was not deprived of its probative force because of the difference in the range of acts constituting the offences (being manifestations or exemplifications of the particular and distinctive tendency alleged).
The probative force of the similar fact evidence of the complainants lay in removing a doubt which the brazenness of the alleged conduct might otherwise have raised and in rendering each complainant’s account of the occurrence of a disputed offence less liable to be rejected as unworthy of belief or improbable, when seen in the context of the prosecution case as a whole, rather than as an isolated incident. It served to eliminate an innocent basis for the appellant’s conduct, for example in relation to count 2 (that he was simply rubbing aloe vera to the sunburnt area of his daughter’s back), count 4 (that he was simply throwing GC into the water as part of an innocent game as he did with his children), count 6 (that he was simply massaging GC’s back at her request due to a back complaint) and count 11 (that he was simply leaning forward to give NF a peck on the lips for being a good girl).
“You will recall that the prosecution said that the similarities that they rely upon include that the girls, at the time that they say the offending occurred, were all of similar ages, they were all females, all the offending occurred within the [appellant’s] home or in proximity of the [appellant’s] home, such as the pool, and that they all were in a position where the [appellant] was either actually or ostensibly in a position of trust. From that, the prosecution argues that the facts proved to you are so similar that when judged by common sense and experience, they must be true, and that you can use the evidence of the complainants in combination, one with the other. They argue that with the absence of collusion, it’s objectively improbable that complainant A would complain in such similar circumstances of offending as against her by the [appellant] as to the alleged offending against the complainant B, unless the offending against complainant A actually occurred.
… In summary, the evidence of any one complainant, who you accept as credible and reliable as to the alleged similarities, can be used by you as a circumstance which might confirm, support, or strengthen the evidence of another complainant, but that is only if you are satisfied, on all the evidence that you have heard, that there is no reasonable view of it, other than that the [appellant] committed the other acts alleged by the other complainants and that the possibility that the complainants are all lying can be rejected, and that it may be the occurrence of the alleged similarities is coincidence.”
That also accorded with the way the similar fact evidence was relied on in this Court. At one stage, counsel for the respondent, in outlining the similar circumstances of offending, described the offending as manifesting a tendency to engage in habitual gratuitous gratification, but maintained that the probative value of the similar fact evidence was the improbability of multiple complainants falsely describing similar circumstances of offending.
It follows that I am of the respectful opinion that the trial judge instructed the jury correctly concerning how the evidence might be used. His Honour identified the salutary probative aspects of the evidence but was also careful to direct the jury that it would be an error to use the evidence as showing mere criminal propensity.
Ground 2 - Failure to direct the jury sufficiently in relation to the use that could be made of the acts constituting propensity evidence across complainants
Initially, the appellant argued that in light of what was said in Nibigira,228 separate trials at least for counts 1, 8 and 11 were required and relying on Nibigira,229 that adequate directions on “similar fact evidence” in relation to the counts in respect of which the evidence was not cross admissible were not given. The appellant ultimately made this submission as a fall-back position in the event that it was not accepted that separate trials on all counts were required.
As I have stated, in my view, the evidence in respect of each count was cross admissible. The trial judge gave conventional directions in accordance with the Benchbook as to the use of the similar fact evidence, including directing against mere propensity reasoning.230 His Honour identified the matters put forward by the prosecution as similar fact evidence and also identified the defence arguments for some touching having an innocent explanation, including that the touching of KW was simply an act of stretching and not an intentional touching of her breasts.231 This ground should be dismissed.
Ground 3 - Direction as to accident in relation to count 10
As to count 10, the prosecution case was that the touching was a deliberate groping of the breasts.232 The defence case accepted that the appellant had touched KW’s breasts but that it occurred “accidentally” as a result of him stretching his shoulders.233
The trial judge told the jury that the prosecution was required to prove that the touching was “indecent” and explained the meaning of that term. However, the appellant submitted that the directions by the judge concerning count 10234 did not include a direction that the prosecution had to prove beyond reasonable doubt that the touching by the appellant had been an intentional touching of the KW’s breasts. It was submitted that the trial judge summed up the defence contentions on count 10235 without including a description of the appellant’s evidence that there had been “an accidental touch” and, in summarising the prosecution submissions,236 again made no mention of that point. But that overlooks that his Honour did, in fact, identify that the defence case was that the touching was “simply an act of him stretching and not [intentional] in any way”.237
The real complaint raised in ground 3 concerned the redirection given by the trial judge at the request of defence counsel in relation to count 10.238 The redirection was as follows:
“I should specifically have made reference in relation to count 10, which relates to the complainant, [KW], that you will, of course, remember the evidence of the [appellant] that he acknowledges that he did brush against [KW’s] breast when the massage was occurring and he stretched.
If you were to find that that was an accident, then it is excused by law, and obviously, you need to be mindful of that if you are considering the lawful nature of that incident which constitutes count 10 …”
“… the prosecution must prove that the [appellant] intended that the event in question, the touching of the breast, should occur, or foresaw it as a possible consequence of – or that an ordinary person in this position would reasonably have foreseen the event as a possible consequence. In considering whether the [appellant] did foresee it or an ordinary person would have, you should focus on whether the touching of the breast was foreseeable as something which could happen, disregarding possibilities that are no more than remote or speculative, and in that regard, you have heard the evidence of the [appellant] that he was stretching and accidentally brushed against [KW’s] breast. That evidence raises, for your consideration, the possibility that neither the [appellant] or an ordinary person could reasonably have foreseen that that event would occur. Therefore, if the [appellant] did not intend or foresee the touching of the breast of the complainant as a possible consequence of his actions, and if an ordinary person in the position of the [appellant] similarly would not have foreseen that as a possible consequence of those actions, then the [appellant] would be excused by law, and you would have to find him not guilty.
It is not for the [appellant], as I have said previously, to prove anything, unless the prosecution proves, beyond reasonable doubt, that an ordinary person in the position of the [appellant] would reasonably have foreseen the touching as a possible consequence of his actions, or that the [appellant] intended or foresaw that, you must find him not guilty. Even if you reject the [appellant’s] account of what happened, you must consider the possibility that the event occurred unforeseen and unintended. The [appellant] is under no obligation to prove any matters, and before you can convict him, you must be satisfied by the prosecution beyond reasonable doubt either that the incident was an event which the [appellant] intended or foresaw as a possible consequence, or that an ordinary person in the [appellant’s] position would have reasonably foreseen it.”
There was no complaint by defence counsel as to the redirection. Accordingly, the appellant must demonstrate that there has been a miscarriage of justice.240
It was submitted on behalf of the appellant that the redirection was erroneous because, in effect, it instructed the jury that the appellant’s account that he did brush against KW’s breast (when the massage was occurring and he stretched) would not provide a defence if “an ordinary person in the position of the [appellant] would reasonably have foreseen the touching as a possible consequence of his actions”.241 Reference was made to R v Wollaston242 where a similar point was advanced but was unsuccessful in the context of the trial judge having also given the jury a specific direction that to convict they had to find beyond reasonable doubt that the touching had been intentional and non-accidental.243 It was contended that no similar direction was given in this case. Consequently, a miscarriage of justice was occasioned such that the conviction on count 10 should be quashed and an order for a re‑trial on this count should be made.
The respondent submitted that it was at all times clear at trial that the prosecution case was an intentional and deliberate touching in accordance with the version given by KW and, while it would have been better to have directed that a deliberate touching was required to be proved rather than give a s 23(1)(b) direction, the redirection nevertheless drew the jury’s attention to the appellant’s account that he was stretching and accidentally brushed KW’s breast. Further, his Honour’s direction that, even if the jury rejected the appellant’s account, it had to consider the possibility of whether the touching was either unintended or not foreseeable and, while it was accepted that that direction was not helpful, it did convey to the jury that it had to exclude that the touching was not a touching by stretching and accidentally brushing against KW’s breast.
There is merit in the appellant’s submission, as in Wollaston, that this was not an R v Jones244 type of case where deliberate touching for an innocent purpose was raised, rather the touching was either deliberate or accidental. The prosecution case, as each counsel identified in addressing the jury, was that there was a deliberate act of groping. As in , the prosecution never sought to prove a merely foreseeable touching and the direction about foreseeability was redundant. In the context of the summing up in , it was there held that the jury could have been left in no doubt about the real issue in the case and the direction about foreseeability did not result in a miscarriage of justice. Unlike the present case, the direction about foreseeability was immediately followed by the trial judge there giving a clear and precise direction that in order to convict, the jury had to be persuaded beyond a reasonable doubt that there was an intentional and non-accidental touching.
Ground 4 - Error in directions as to uncharged acts
The prosecution opening and counsel’s addresses to the jury
The prosecutor opened the Crown case and also addressed the jury in terms of the uncharged acts as they related to each particular complainant, as did defence counsel in his closing address.
Uncharged acts or discreditable conduct were alleged in relation to five complainants: KD, GC, JC, AW and NF. In his opening, the prosecutor explained that, in addition to the charged acts, the jury would hear about uncharged acts to provide context for the charged acts. He went through the charges concerning each complainant separately identifying the context provided by the uncharged acts relating to that complainant.
In relation to KD, the prosecutor outlined that the uncharged act of grabbing her breast before throwing her into the water at the Cape provided context for count 1.245 In relation to GC, the prosecutor referred to uncharged acts of brushing her breasts or backside when hugging her when she visited as providing some context for the ultimate sexual offending constituting counts 3, 4 and 6.246 In relation to JC, reference was made to the uncharged acts of touching her inappropriately when throwing her into the water when she was in the pool before outlining the offending in count 8.247 In relation to AW, reference was made to the appellant massaging her when she was stargazing with him and to the appellant’s conduct at the hut, touching her shoulders in the context of the particularised act the subject of count 9.248 In relation to NF, the appellant’s conduct of looking at her through the bathroom window when she was about to have a shower was explained as falling in the category of uncharged conduct in the context of count 11.249
In the course of his address, defence counsel also dealt with the evidence of the uncharged acts concerning each particular complainant when dealing with the charged acts relating to that complainant. In respect of KD, defence counsel told the jury the evidence of the uncharged act at the Cape was relied on as showing a sexual interest in her and that the jury could only use the evidence, if satisfied it occurred, as demonstrating a sexual interest by the appellant in “that complainant”.250 Defence counsel addressed the jury in relation to the specific uncharged acts concerning AW as relevant to the credibility of “that complainant”, and likewise for NF and JC. Defence counsel addressed the uncharged acts alleged in relation to JC by inviting the jury to consider that evidence in its assessment of that complainant’s credibility. Counsel also dealt with the specific uncharged conduct concerning NF in the context of count 11.
The trial judge’s summing up
“The evidence the Crown relies on there is to show that the [appellant] had a sexual interest in the complainants, for example, brushing of breasts, bottoms, and thighs, touching of the vaginal area in the swimming pool, massaging shoulders, brushing of breasts or bottoms in the home, touching of [KD] on the breast at the beach hut, or [AW] on the arm, or looking in through the bathroom window at [NF].
The Crown relies on this evidence to prove that the [appellant] had a sexual interest in the various complainants and was willing to give effect to that interest; however, you can only use this evidence if you are satisfied beyond reasonable doubt that one or more of those other acts actually occurred. If you don’t accept that any of those acts occurred, that finding may affect your assessment of the various complainants’ evidence relating to the offences that are contained in the indictment. If you do not accept that any of those other acts occurred, then you must put that evidence to one side and decide the case based on the consideration of the rest of the evidence. If you do accept that one or more of those uncharged acts occurred, you can only use that evidence if you are satisfied beyond reasonable doubt that it demonstrates that the [appellant] had a sexual interest in the complainants and that he was willing to give effect to that interest. If you are persuaded of that, you may think that it is more likely that the [appellant] did what is alleged in the particular charge that is under consideration. Of course, whether any of those other acts occurred, and if they did, whether those acts make it more likely that, on a different occasion, the [appellant] did the acts with which he is charged, is a matter for you to determine. You need to remember that if you are satisfied that some or all of those other acts did occur, it does not inevitably follow that you would find the [appellant] guilty of the acts the subject of the charges. You must still always decide whether, having regard to the whole of the evidence, the offences charged have been established to your satisfaction beyond reasonable doubt.
The evidence of other alleged incidents must not be used in any other way. If you are satisfied that any other alleged incidents did occur, it would be quite wrong to reason that the [appellant] is, again, generally a person of bad character, and for that reason, he must have committed the offences with which he is charged. The evidence has been led for the purpose of showing that the [appellant] had a sexual interest in the various complainants and was willing to give effect to that interest, and therefore, it’s more likely that the [appellant] committed the offences charged in the indictment [against that complainant].”
Consideration
No redirection was sought by defence counsel in relation to the uncharged acts direction when seeking a redirection in respect of accident. It was abundantly clear from the prosecution opening and the addresses to the jury that the uncharged acts concerning each complainant were led as relevant to that complainant’s evidence concerning the charged acts committed against that particular complainant and to provide context for the charged offending against that complainant.
The jury would not have been lead into thinking otherwise by the summing up. In particular, the reference in the summing up to “the complainants” and “the various complainants” was not likely to have been understood as meaning that the uncharged acts were to be considered as relevant beyond the evidence concerning the complainant to which it related. Rather, the trial judge’s reference to the uncharged acts as being led to show a sexual interest in the “various complainants” was likely to have been understood, consistently with the manner in which the trial was conducted and the examples identified in summing up the rival contentions, as referring to a distinct sexual interest in respect of the complainant it concerned and relevant to the jury’s assessment of that complainant and their assessment of whether it made it more likely that the offences charged concerning that complainant were committed. This complaint of miscarriage of justice cannot be sustained.
Sentence appeal
The sentences imposed and sentencing remarks
A term of imprisonment of three and a half years in respect of count 8 with a cumulative term of two and a half years imprisonment for count 6.
Concurrently with those cumulative sentences, a term of imprisonment of one year for each of counts 1, 2 and 5, a term of nine months imprisonment for each of counts 3 and 4 and a term of nine months imprisonment for each of counts 7, 9, 10 and 11.
“It has been 14 years since that night and I still have a photographic memory of the events that occurred that night and our conversation the next day [with JC]. The feelings of hurt, heartache and disgust have not even begun to lessen over time. I often close my eyes and involuntarily a replay of that night flashes in my mind… I feel that I will – it will live with me forever*.*”
KD’s victim impact statement stated she had sought counselling many times to ward off being consumed by depression and anxiety due to issues arising from having been assaulted. She had lived with feelings of guilt that she had not reported the appellant to the authorities earlier.268
His Honour referred to NF’s impact statement describing ongoing difficulties due to what occurred in October 2015 and her feelings of being “betrayed, worthless and unsafe” and being scared of going into or being in the dark and being worried that the appellant would come back.269 NF detailed that by September 2016, she was having suicidal thoughts and was not coping with being away from family members. She eventually was able to talk with someone on a weekly basis who helped her. At the time of sentence, she had again postponed university studies, because she was struggling with her feelings from the events that took place in 2015. She expressed concern as to being able to cope with the trial and that she felt herself sinking “back to [her] old thoughts and [having] more feelings of anxiety and depression”.270 NF’s mother described in her impact statement of being heartbroken by the impact of the offending on her then 15 year old daughter by a person that had been trusted.
GC’s victim impact statement referred to difficulties in relation to trust even in respect to family members who clearly mean her no harm and within her relationship with her partner. She has been on antidepressant and anxiety medication since she was 14 years of age and has had ongoing counselling sessions.
His Honour had regard to the appellant’s antecedents. He had contributed to his community in volunteer and general community activities over many years and had been an active participant in the local agricultural community and was considered to be “a pillar of [his] society”. His Honour also had regard to the opportunities for rehabilitation. The appellant had moved interstate and had remarried. He had commenced a new business and was held in high regard in relation to that work. The appellant was 57 years of age at sentence and there would be significant consequences for him of any period of imprisonment. Nevertheless, the appellant’s very serious and abhorrent behaviour which had involved seven complainants called for a significant period of imprisonment and the appropriate course was to consider the two most serious offences at law and to order in relation to those that there be a cumulative sentence.
In fashioning a cumulative sentence for counts 8 and 6, his Honour adopted the approach urged by the prosecution and supported by defence counsel. The prosecutor contended for such an approach on the basis that to impose a penalty reflecting the total criminality for the offending on the count of rape, as the most serious of the offending, would take the sentence outside what might be considered appropriate for that count. The effective head sentence of six years imprisonment reflected the submission as to the appropriate cumulative term put forward by the prosecutor in relation to what was submitted to be the most serious of the offending, being the digital rape (count 8) and the touching of GC’s vagina for a period of some five minutes (count 6). Defence counsel had contended for an effective sentence of five years (three years imprisonment for count 8 and two years imprisonment for count 6).
Submissions
There was no challenge to the appropriateness of the sentencing structure adopted by the sentencing judge. Accepting that the most serious sexual offending was in relation to counts 6 and 8, the appellant’s counsel submitted that the effective sentence of six years with a minimum of three years to serve was manifestly excessive when regard was had to the comparative authorities of R v Richie; Ex parte Attorney-General (Qld),271 R v BCX272 and R v BCY.273 The appropriate effective sentence was one of five years as contended for by defence counsel.
The respondent submitted that the sentence sought on appeal did not differ significantly from the sentence received. The effective ground alleged that each of the sentences ought to be reduced by six months in their respective cumulative terms. It was submitted that it was evident that subsumed within the two main cumulative sentences, his Honour had taken into account the remaining offences, which in themselves were particularly serious. While the sentencing comparatives were not of great assistance in the current matters, the sentences imposed in R v CBG,274 R v CBI,275 R v Turnbull276 and R v Bull277 referred to by the prosecutor at sentence demonstrated that the sentence imposed was within the sound exercise of the sentencing discretion.
Consideration
Given my conclusion that the conviction on count 10 must be set aside, so also must the sentence imposed concurrently for that count of nine months imprisonment. The comparative decisions referred to do not indicate that the sentences imposed in relation to the remaining counts were manifestly excessive. However, that question may not be considered to be the pertinent one since, as the respondent argued, the sentencing structure and length of the cumulative sentence included an aspect of totality, subsuming the remaining offences for which concurrent sentences were imposed and that the sentencing discretion is now required to be re-exercised, given the proposed order in relation to count 10. Given the different circumstances of the offending in the comparative authorities referred to, they do not provide much assistance.
On that basis, in re-exercising the discretion, I would not alter the approach of imposing a sentence on count 6 to follow cumulatively on that imposed for count 8. Further, sentences of three and a half years on count 8 and two and a half years imprisonment for count 6 are warranted, given the nature and degree of the criminality in question. That the totality of the offending does not include offending for count 10 does not mandate lesser sentences. Sentencing is not a mathematical equation. The criminality of the offending was serious and spanned nearly 23 years. The appellant used the opportunity afforded by the presence of the young complainants in his home, including his own daughter, to satisfy his sexual urges. The appellant did not spare the multiple complainants the burden of giving evidence and nor did he show any remorse during the course of the trial. His opportunistic and predatory conduct has, as the victim impact statements indicate, had very profound consequences on the various complainants over a very long period. While bearing in mind the matters of mitigation in the appellant’s favour, it remains that a heavy deterrent sentence is required to reflect the community’s abhorrence of the appellant’s serious and continued sexual offending against many victims over an extended period. In the circumstances, I would not alter the sentences for counts 1 to 9 and count 11.
Orders
The appeal against conviction is dismissed, except for count 10.
The conviction on count 10 is quashed and a re-trial on that count is ordered.
The application for leave to appeal against sentence is granted.
The sentence imposed on count 10 is set aside and the appeal against sentence is otherwise dismissed.
s 132A of the Evidence Act 1977 (Qld). ↩
(1988) 165 CLR 292. ↩
(1995) 182 CLR 461. ↩
(2006) 225 CLR 303. ↩
Director of Public Prosecutions v Boardman [1975] AC 421 at 456-8 per Lord Cross of Chelsea; Harriman v The Queen (1989) 167 CLR 590 at 600-1; [1989] HCA 50 per Dawson J; and Pfennig at 484 per Mason CJ, Deane and Dawson JJ. ↩
Pfennig at 484-5 per Mason CJ, Deane and Dawson JJ. ↩
See also R v Little [2018] QCA 113. ↩
(1988) 165 CLR 292 at 295-6. ↩
(2019) 2 QR 355, 378; [2019] QCA 191 at [79]. ↩
Evidence Act 1995 (Cth); Evidence Act 1995 (NSW); Evidence Act 2008 (Vic); Evidence Act 2001 (Tas); Evidence Act 2011 (ACT) and Evidence (National Uniform Legislation) Act 2011 (NT). ↩
[2015] 1 Qd R 165, 175-176; [2014] QCA 212 at [45]-[46]. ↩
R v Woods, Pre-trial ruling, 6 February 2019 (Coker DCJ).
R
WBN [2020] QCA 203
(1995) 182 CLR 461
(2006) 225 CLR 303
(2008) 235 CLR 334
(1988) 165 CLR 292
(2017) 263 CLR 338
(2018) 92 ALJR 1045
(2018) 361 ALR 13
(2018) 266 CLR 56
(2014) 87 NSWLR 481
(2014) 45 VR 680
(1984) 152 CLR 528
(1989) 167 CLR 590
(2012) 245 CLR 499
(1986) 61 ALJR 1
(1986) 68 ALR 1
(1936) 55 CLR 367
(2003) 217 CLR 1
The appeal against conviction was allowed, all convictions were quashed, and retrials were ordered. Counts 1-7 and counts 9-10 were to be tried separately from counts 8 and 11; count 8 was also to be tried separately from count 11: [20].
The second ground of appeal need not be considered. As we have said, we agree with Philippides JA on the third ground of appeal, which provides a further reason to quash the conviction on count 10.
It is unnecessary to reach a concluded view on the fourth ground of appeal, by which it is argued, not without a basis, that the trial judge misdirected the jury about uncharged acts, in that he said that they could use any uncharged act as evidence of a sexual interest in “the various complainants” rather than the same complainant.
PHILIPPIDES JA: The appellant was convicted by a jury on 28 March 2019 after a nine day trial of 11 counts of sexual offences against seven complainant children, the counts being particularised as follows:19
As to count 11, the appellant said he did give NF “a peck on the lips” but there was a context to that. The night before he had been watching TV with her and then went out to hang out the washing on the hills hoist that was outside the bathroom. As he did so, something caught his eye and he looked through an open window of the house and saw her “taking selfies of herself in the vanity mirror”.90 The following day, he spoke to her about the dangers of sexting. She said “she hadn’t sent them” and it was in that context that he “leaned up gave her a peck on the lips for being a good girl”.91 When questioned as to whether he ever told M that he might have kissed NF, he replied that he had “explained the situation” about NF to him.92
Pfennig affirmed106 that such evidence is admissible only if its probative value exceeds its prejudicial effect (the latter being that the jury may treat the evidence as establishing an inference of guilt where “neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused”107). However, it was pointed out108 that that statement is of little assistance unless it is understood that the evidence sought to be admitted is circumstantial evidence and that its probative value is to be gauged in that light.109 As circumstantial evidence, it “raises the objective improbability of some event having occurred other than that asserted by the prosecution”.110 Being circumstantial evidence, a judge must apply the same test in relation to the question of the admission of such evidence as a jury must apply in dealing with circumstantial evidence, and ask whether there is a rational (reasonable) view of the evidence that is consistent with the innocence of the accused. Further, it was stated in Pfennig, that the judge must consider that question “in the context of the prosecution case”.111 In stating the question to be asked by a judge in that way, the Court112 endorsed the view expressed in R v Boardman113 that the purpose of such evidence is to establish a step in the proof of the prosecution case and to infer, “according to the criminal standard of proof, that the accused is guilty of the offence charged”.114
In Phillips v The Queen,115 the Pfennig test was thus expressed as being that the similar fact evidence is inadmissible “unless, viewed in the context of the prosecution case, there is no reasonable view of the similar fact evidence consistent with the innocence of the accused”.116 The Court reiterated117 that the task of the judge in deciding the question of admissibility of the evidence sought to be adduced, and for that purpose comparing its probative effect against its prejudicial effect, is to be understood in the light of the need to view the evidence in the context of the prosecution case. The Court also emphasised a second consideration; that the test to be applied by the judge, being one as to admissibility, is applied on two assumptions; firstly, that the similar fact evidence would be accepted as true and, secondly, that the prosecution case may be accepted by the jury. As the Court explained, it follows that the Pfennig test does not require the judge to conclude that similar fact evidence, standing alone, would demonstrate the guilt of the accused of the charged offence, although it does require the judge to exclude the evidence if, viewed in that context and on those assumptions, there is a reasonable view of the similar fact evidence which is consistent with innocence.118
A fundamental aspect for the admissibility of propensity or similar fact evidence is, as stated in Phillips, that it possesses “some particular probative quality”.119 The probative value or cogency of such evidence arises as a matter of inductive or inferential reasoning and not as a matter of deductive logic.120 As observed in Hoch, such evidence allows for “admeasuring the probability or improbability of the fact or event in issue … given the fact or facts sought to be adduced in evidence”.121 The high threshold for the admission of such evidence was variously stated in Philips, referring to the authorities, as requiring that the evidence possess “a strong degree of probative force”; “a really material bearing on the issues to be decided”; and “‘a sufficient nexus’ between the primary evidence on a particular charge and the similar fact evidence”.122 Pfennig123 clarified (with reference to dicta in Hoch124) that “striking similarities” are not an essential prerequisite for the admission of propensity or similar fact evidence in every case. Reference was made to the statement of Lord Mackay of Clashfern LC in Director of Public Prosecutions (UK) v P125 that “restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime to cases in which there is some striking similarity between them is to restrict the operation of principle in a way which gives too much effect to a particular manner of stating it, and is not justified in principle”.126 Reference was also made to the Lord Chancellor’s observation that what was critical was “the relationship” between the evidence of one victim and that of another and, in that regard, to his observation that:127
In considering whether the offending was of such a legal category or character that the features relied upon as showing similarity demonstrated a sufficient factual nexus and that the charges should be properly joined, the primary judge referred to R v CBM.150 There it was held by Henry J151 (with the other members of the Court agreeing) that the similar fact evidence of each complainant was correctly found to be cross admissible by the primary judge and able to be used by the jury as supporting proof of the charges relating to the other complainants since there was no reasonable view of the evidence of each complainant which was consistent with the appellant’s innocence in respect of the charges relating to the other complainant. Henry J stated152 that “the manifestations or exemplifications of a particular distinctive propensity” identified by the primary judge in that case “derived not merely from the commission of generally similar [sexual] offending against children of similar age and sex”, but also from the circumstances that they were the appellant’s cousins and the offending was in close succession when they were living in their respective homes while others were present in the home. In the absence of collusion,153 it was objectively improbable that one complainant would complain of such similar and temporally proximate circumstances of offending as the offending against the other complainant unless the offending actually occurred.
Having considered CBM, the primary judge noted the lengthy timeframe of the offending in the counts and that the allegations of each complainant were not identical in every respect, but considered the similarities relied on by the prosecution provided a sufficient link between the offences charged. His Honour concluded that the offending as described by the complainants in their respective accounts had such a high degree of probative force in aiding to prove the offences alleged that it was appropriate that joinder occur.154
The appellant also submitted that it was relevant, as in McPhillamy, to look at the dissimilarities in the charged offending. When those were taken into account in McPhillamy, the evidence established no more than a general tendency. When regard was had to the dissimilarities in the alleged conduct and the long gaps between some of the alleged offending, there was no high degree of unity and a “generalised recourse to brazenness” was inadequate to provide a sufficient link.161 That was especially so when regard was had to the dissimilarities between the offending conduct in respect of count 11 (an allegation of an attempted kiss in the context of having talked about the dangers of sexting) and count 8 (an allegation of digital rape of a complainant who was sleeping). Those counts were not able to be linked by an argument as to the improbability of the complainant’s accounts being comprised of similar lies.
Nibigira concerned 21 counts of sexual offending by a choir master against four young female complainants, who were members of a choir at the appellant’s church. The offending occurred either in the appellant’s house (when others were nearby) or on the occasion of his driving a complainant to or from choir practice. Seventeen of the counts concerned complainant A and included a count of rape in the appellant’s van. One count of unlawful and indecent dealing concerned complainant D and related to offending that also occurred in the appellant’s vehicle. Two counts, including one of rape, involved offending against complainant B at the appellant’s house in the toilet when others were nearby for choir practice. The count of unlawful and indecent dealing against complainant C was also alleged to have occurred at the appellant’s house in the context of choir practice.
An argument was made by the respondent that the evidence of other choir members of having been sexually assaulted by the appellant in his home when other church leaders were present was capable of allaying a reasonable doubt as to B’s veracity concerning her evidence of being raped in the same house when others were present.171 Gotterson JA, with whom the other members of the Court agreed, referred to the observations in Phillips, as applied in MAP, that the element of reckless offending was considered insufficiently probative. As mentioned, the decision of Watson, where Phillips was distinguished, was not referred to the Court. It is also to be observed in any event that in Nibigira, the feature of reckless offending in the vicinity of others in respect of the incidents in the house did not extend to the offending in the vehicle.
Gotterson JA identified the overall similarities in the alleged offending as that each complainant was a young female choir member of similar age and that the offending was of a sexual nature and occurred at, or on the way to, choir practice or at other church activities when the appellant was alone with each complainant. The similarity was described as being at a “rather generalised level” such that it did not “invest the entirety of each complainant’s account with the degree of cogency required for admissibility in proof of the entirety of the particular offending conduct alleged by every other complainant”, although it was accepted that in some instances there were sufficient similarities “in the modes” of the alleged offending to provide the degree of cogency required for cross-admissibility.172 Gotterson JA also considered the differences in the conduct comprising the two rape counts (one occurring in the car and involving use of a condom and ejaculation while the other occurred at the house without use of a condom and with no evidence of ejaculation) as comparable with those identified in MAP and as precluding the formulation of an underlying pattern of similarity in the mode the offending and rendering the evidence of one alleged rape inadmissible in respect of the other.173 There were also differences in the circumstances of the other sexual offending; the evidence of B and C about offending that occurred in the upstairs toilet, kitchen and hallway of the appellant’s residence had no particular probative value for the alleged offences against A and D committed in vehicles and lacked an underlying unity and vice versa.174
It is to be noted that the decision in Hughes175 was not referred to the Court and the Court did not consider the error identified in that case concerning the reasoning in Velkoski v The Queen176 as to the need for similarity in operative features of the acts that prove an alleged tendency, regardless of the fact in issue, a matter subsequently considered by this Court in McNeish, discussed below.177
Both Hughes and Bauer concerned the relevance of evidence under the applicable statutory tendency rule provisions (rather than the coincidence rule provisions), however, that is not to say that there is no overlap, even in the statutory context, between tendency and coincidence reasoning. It was observed in Hughes192 that the prosecution did not seek to rely on the improbability of the complainants falsely making allegations of sexual impropriety against the appellant, so the appeal did not invite consideration of any overlap between tendency and coincidence reasoning, as to which reference was made to remarks in Saoud v The Queen.193 In Saoud, Basten JA discussed the awkwardness in the separation of “tendency” and “coincidence” evidence under the statutory scheme where there was no issue as to the identity of the alleged offender but rather the occurrence of the offences (as was the case there). His Honour observed that in such a case, “evidence of the accused’s conduct on another occasion will combine the implausibility of independent complainants both falsely describing similar conduct with the inference that a person who conducted himself in a particular way on one occasion may well have done so again on another”.194
The awkwardness that arises from that statutory distinction identified in Saoud does not arise under the common law and, as observed by the majority (Sofronoff P and Henry J) in McNeish, the logic in the propositions stated in Hughes and reiterated in Bauer have application under the common law*.*195 It was also explained by the majority in McNeish that, in considering the admissibility of uncharged acts against multiple complainants under the common law, a judge is required to consider the following:(a)Firstly, what the factual issue is that the prosecution seeks to prove by the evidence (in Hughes it was a particular tendency by an adult male to have a sexual interest in underage girls using his social, familial and working relationships and to act on that tendency).196(b)Secondly, whether the evidence, if accepted, proved that tendency.197(c)Thirdly, whether the evidence, if accepted, contains some feature linking to the charged offence by reference to a particular issue in the case, for example, the occurrence of the offending. As stated in Bauer, that feature may demonstrate a particular tendency, proof of which increases the likelihood that the account of the offence under consideration is true (as was the case in Hughes).198(d)Fourthly, whether the probative force of the evidence, on the assumption that the jury accepts it, is sufficient to overcome its prejudicial effect199 (for which purpose, the evidence is not to be considered on its own but taking into account the prosecution case as a whole200).
McNeish itself concerned 22 counts of sexual offending against three sisters aged between two and 10 who lived in the same household by an adult male neighbour. The counts against the younger two sisters (M and L) alleged maintaining a sexual relationship, rape and indecent treatment. It was not disputed that the evidence relating to those counts was cross admissible. The question before the Court concerned the admissibility of the evidence of the eldest sister (E) of less serious sexual offending against her (indecent treatment by touching her vagina outside her underpants).
It was held by the majority that there was no error in the refusal of an application for a separate trial of the counts concerning E. The majority observed that the evidence adduced in the case about E was sought to be led in the cases of M and L in order to prove a particular tendency and action by the appellant to give vent to his tendency and was capable of proving that tendency.201 E’s evidence bore a strong relationship to the allegations in M’s and L’s cases so as to be sufficiently probative of the facts in those two cases as to justify its admission.202 That stemmed from “the objective improbability that three pre-pubescent sisters from the same household would, without colluding, each falsely allege that the appellant repeatedly engaged in sexual activity towards them in similar surrounding circumstances”.203 Those circumstances common to all three sets of offending were that they occurred while the appellant was a neighbour, the complainants were sisters of a similar age and all three were pre‑pubescent and easily accessible to the appellant and under a degree of control by him as part of a “parental environment” of which he was a part. The offending against each complainant took place when at least one other complainant was in the vicinity. There was also a congruence of time and place and a similarity in the nature of the offending.204
Their Honours held that the predisposition proved by E’s evidence was directly related to the accounts of M and L in that:205
When the evidence of each complainant was considered in the context of the whole prosecution case and, accepting each complainant’s evidence to be true, it allowed for no inference other than that the offences occurred as the prosecution alleged.
With respect to the act that was not disputed, being the touching of the breasts of KW (count 10), as stated in Hoch, the similar fact evidence went to the issue of the objective improbability that the act was not deliberate but rather unintended and occurred innocently or fortuitously when the appellant accidently touched her breasts when stretching. The prosecution relied on the evidence of deliberate opportunistic offending against the other young complainants to exclude an unintentional touching.225
There was no error in finding that the similar fact evidence of each complainant was cross admissible and could be used by the jury in support of the charges relating to the others. The trial judge was entitled to conclude that there was no reasonable view of the evidence of each complainant, when considered in the context of the whole prosecution case, which was consistent with the innocence of the charges relating to the other complainants. This ground should be dismissed.
In reaching that conclusion, I have had the opportunity to consider the joint reasons of Fraser and McMurdo JJA. In my respectful opinion, their Honours’ reasoning is contrary to the binding statement of principles of the majority in McNeish, which was not said to have been wrongly decided.
As I have already discussed, applying the Pfennig test, as explained in Phillips, there is no reasonable view of the evidence of the multiple complainants which is consistent with innocence as to a particular charged offence. The contrary view is based on reasoning that focusses on the differences in the actual acts constituting the offending and overlooks that the probative value of the accounts of the multiple complainants was in giving accounts of such a high degree of similarity as to the circumstances in which the alleged conduct occurred as to exclude an innocent explanation for the conduct in a particular case. Such reasoning adopts the error in Veloski as discussed by the majority in McNeish.
In addition, I respectfully make the following comments. I am unable to agree that the directions given by the trial judge to the jury as to how similar fact evidence was to be used did not accord with the pre-trial ruling or how the evidence was said by the respondent to be admissible in argument before this Court. The basis on which the similar fact evidence was admitted by the trial judge was that the evidence of the circumstances of the offending relied on by the prosecution possessed a strong probative force, his Honour having set those circumstances out. That was also the way the prosecutor relied on the evidence in his address to the jury, referring to the “powerful … similarities in the facts identified as to how the [appellant] did these things”.226 In relying on the high degree of similarity in the circumstances in which the offending occurred, the prosecutor described the circumstances of the appellant’s offending against the multiple complainants as involving “predatory” conduct against young girls of a certain age group who he “targeted within his house” where he was comfortable and in a position of trust and where, as “patriarch”, the victims would not complain even though the conduct was brazen. That also accorded with the trial judge’s summary as to how the prosecution relied on the similar fact evidence:227
Although the redirection was given at the apparent urging of the defence counsel, the redirection introduced for the jury’s consideration for the first time whether the touching was a foreseeable occurrence, in which case accident was excluded, which was contrary to the tenor of the previous direction that the issue was whether the touching was unintentional as claimed by the appellant. The redirection raised the possibility that the jury might have considered that even if unintentional, if the touching was foreseeable that was sufficient to exclude accident and render the appellant liable. This introduced an irrelevant consideration adverse to the appellant’s case which had a reasonable possibility of affecting the verdict. In those circumstances, a miscarriage of justice was occasioned by the redirections given on this count with the result that the conviction on count 10 should be quashed and an order should be made for a retrial on this count.
In his address to the jury, the prosecutor, in dealing with the counts concerning KD, reiterated that the uncharged acts provided “contextual evidence” in respect of the counts concerning that complainant.256 The prosecutor repeated that JC’s evidence of uncharged acts, provided context in relation to the charged offending against that complainant257 and stressed that the Crown case in relation to the rape count concerning JC was that that offending did not occur “out of the blue or without context”.258 He made the same point in respect of GC when addressing counts 3, 4 and 6, referring to the evidence of the uncharged acts in relation to that complainant as placing the ultimate offending against her in its “proper context” and not as “an inexplicable occasion … [where he] massaged her vagina”.259
Hoch at 295, in the passage set out above. ↩
(2017) 263 CLR 338 at 355; [2017] HCA 20 at [37]. ↩
At 327-8 [79]. ↩
Phillips v The Queen (2006) 225 CLR 303 at 323-4 [63]. ↩
R v WRC (2002) 130 A Crim R 89 at 102; [2002] NSWCCA 210 at [29], approved in HML v The Queen (2008) 235 CLR 334 at 359 [27] (Gleeson CJ) and 429 [285] (Heydon J) and BBH v The Queen (2012) 245 CLR 499 at 546 [155], 547 [157] (Crennan and Kiefel JJ); see also Cross on Evidence, Aust Ed at [21035]. ↩
De Jesus v The Queen (1986) 61 ALJR 1; [1986] HCA 65. ↩
AB at 651-652. ↩
AB at 187-188. ↩
AB at 189; 207-209. ↩
AB at 220; 228; 232. ↩
AB at 182. ↩
AB at 212; 218. ↩
AB at 322. ↩
AB at 323. ↩
AB at 342-343. ↩
AB at 323. ↩
AB at 343. ↩
AB at 323. ↩
AB at 324. ↩
AB at 325.3-10. ↩
AB at 325.26. ↩
AB at 325.32. ↩
AB at 349. ↩
AB at 345. ↩
AB at 504; 518. ↩
AB at 518. ↩
AB at 508.09. ↩
AB at 508.22-23. ↩
AB at 509; 526-527. ↩
AB at 326-327; 350–352. ↩
AB at 511. ↩
AB at 513.03. ↩
AB at 513. ↩
AB at 327-329; 353-355. ↩
AB at 454. ↩
AB at 399; 409-417. ↩
AB at 400-405; 417-423. ↩
AB at 403. ↩
AB at 420. ↩
AB at 403. ↩
M gave evidence of the complaint made to him by KW: AB at 429; 443. ↩
AB at 425. ↩
AB at 374. ↩
AB at 383. ↩
AB at 377-379; 378.39. ↩
AB at 379. ↩
AB at 330-333; 355-360. ↩
AB at 332-333. ↩
AB at 243. ↩
AB at 257. ↩
AB at 247-248. ↩
AB at 250.30. ↩
AB at 251.44. ↩
AB at 279.25. ↩
AB at 286. ↩
AB at 282. ↩
AB at 364. ↩
AB at 333; 364. ↩
AB at 461. ↩
AB at 462. ↩
AB at 462. ↩
AB at 432.30-34. ↩
AB at 447. ↩
AB at 432-433. ↩
AB at 434. ↩
AB at 405. ↩
AB at 298.33-40. ↩
AB at 300.21-25. ↩
AB at 554. ↩
AB at 564. ↩
AB at 565; 574. ↩
AB at 574-575. ↩
AB at 591. ↩
AB at 557. ↩
AB at 569. ↩
AB at 570. ↩
AB at 571. ↩
AB at 558. ↩
AB at 560. ↩
AB at 571. ↩
Hoch v The Queen (1988) 165 CLR 292 at 294 referring to De Jesus v The Queen (1986) 68 ALR 1. ↩
(1995) 182 CLR 461. ↩
Pfennig at 464-465. ↩
(2008) 235 CLR 334. ↩
HML at [160]. ↩
“The Rule of Exclusion of Similar Fact Evidence: America”, Harvard Law Review, vol 51 (1938) 988. See also Stone, “The Rule of Exclusion of Similar Fact Evidence: England”, Harvard Law Review, vol 46 (1933) 954. ↩
HML at [160]. ↩
Except s 132A of the Evidence Act 1977 (Qld) which removes the issue of concoction from consideration by the pre-trial judge as a ground for inadmissibility. ↩
Pfennig at 481, citing Hoch at 294. ↩
(1988) 165 CLR 292. ↩
Hoch at 294. ↩
Pfennig at 483. ↩
Pfennig at 481-482. ↩
Pfennig at 483; 485. ↩
Pfennig at 482. ↩
Pfennig at 483-484. ↩
Pfennig at 482. ↩
Pfennig at 484. ↩
Pfennig at 485, applying Hoch at 296. ↩
Pfennig at 484. ↩
[1975] AC 421. ↩
Pfennig at 484. ↩
(2006) 225 CLR 303. ↩
Phillips at [9]. ↩
Phillips at 323. ↩
Phillips at 323-324. ↩
Phillips at [54]. ↩
Hughes v The Queen (2017) 263 CLR 338 at [71] per Gageler J. ↩
Hoch at 294, quoting Martin v Osborne (1936) 55 CLR 367 at 385 per Evatt J, as cited in Hughes at [71] per Gageler J. ↩
Phillips at [54], quoting R v Boardman [1975] AC 421 at 444 per Lord Wilberforce. ↩
Pfennig at 482. ↩
Hoch at 294-295. ↩
[1991] 2 AC 447. ↩
DPP v P at 460, quoted in Pfennig at 479. ↩
DPP v P at 462, quoted in Pfennig at 479. ↩
Pfennig at 483. ↩
Phillips at [26]; Hoch at 301. See R v McNeish (2019) 2 QR 355 at [30]. ↩
Hoch at 295. ↩
Pfennig at 482 per Mason CJ, Deane and Dawson JJ. ↩
Hoch at 295. ↩
Hoch at 295 is an example of the latter. ↩
Pfennig at 482. ↩
Pfennig at 482. ↩
Hoch at 295. ↩
Hoch at 295, referring to R v Sims [1946] KB 531 at 540 and Boardman at 439, 459‑460. ↩
Hoch at 295, quoting Boardman at 444. ↩
(2017) 263 CLR 338 at [39]. ↩
Hughes at [40]. ↩
Supp AB at 6-7. ↩
[2006] QCA 220; Supp AB at 7. ↩
[2018] QCA 115 at [90]-[109]. ↩
Supp AB at 10; Pre-trial ruling at [32]. ↩
Pre-trial ruling at [39]. ↩
See Supp AB 17-18. ↩
[2017] QCA 82. ↩
Pre-trial ruling at [33]-[34]. ↩
See Supp AB at 17-18; Pre-trial ruling at [38]. ↩
[2015] 1 Qd R 165. ↩
CBM at [46]. ↩
CBM at [45]. ↩
Section 132A of the Evidence Act 1977 (Qld) removes the issue of concoction from consideration by the pre-trial judge. ↩
Pre-trial ruling at [41]. ↩
Nibigira at [90]-[109]. ↩
[2019] QCA 120 at [2]-[4]; [8]-[16]; [218]-[237]. ↩
Appeal transcript at 1-8. ↩
Appeal transcript at 1-11. ↩
(2018) 361 ALR 13 at [30]. ↩
Appeal transcript at 1-6. ↩
Appeal transcript at 1-10. ↩
Pfennig at 483. ↩
Appeal transcript at 1-30. ↩
Hughes at [37]. ↩
Hughes at [56]. ↩
MAP at [42]. ↩
MAP at [44]. ↩
MAP at [45]. ↩
Watson at [20]. See also McNeish at [55]. ↩
Hughes at [57]. ↩
Nibigira at [86]. ↩
Nibigira at [106]. ↩
Nibigira at [104]. ↩
Nibigira at [105]. ↩
Hughes at [37]. ↩
(2014) 45 VR 680. ↩
McNeish at [43]; [44]. See below at [94]. ↩
McNeish at [40]. ↩
(2018) 266 CLR 56. ↩
Bauer at [58] (footnotes omitted). ↩
Davidson at [16]. ↩
Davidson at [16]. ↩
Davidson at [2]-[4]. ↩
Bauer at [59]. ↩
Bauer at [57]. ↩
Hughes at [57]. ↩
Hughes at [10]. ↩
Hughes at [57]. ↩
Hughes at [59]. ↩
Hughes at [60]. ↩
Hughes at [63]. ↩
Hughes at [43]. ↩
(2014) 87 NSWLR 481. ↩
Saoud at [43]. ↩
McNeish at [47]. It is of course to be borne in mind that the statutory bar to admission of evidence is not as stringent as the Pfennig test. ↩
McNeish at [48]. ↩
McNeish at [50]. ↩
McNeish at [51]. ↩
McNeish at [52]. ↩
McNeish at [52]; [66]. ↩
McNeish at [59]. ↩
McNeish at [59]. ↩
McNeish at [60] (emphasis added, footnotes omitted). ↩
McNeish at [68]. ↩
McNeish at [58]. ↩
The error in Velkoski identified by the High Court in Hughes. ↩
McNeish at [62]. ↩
McNeish at [60]; [62]. ↩
McNeish at [67]. ↩
McNeish at [67]. ↩
McNeish at [67]. ↩
McNeish at [67]. ↩
McNeish at [78]-[79]. ↩
McNeish at [90]-[92]. ↩
McNeish at [92]. ↩
Pursuant to the Evidence Act 1995 (NSW). ↩
McNeish at [31]-[32]. ↩
McPhillamy at [34], quoting Hughes at [41]. ↩
McPhillamy at [35]; [36]. ↩
McPhillamy at [36]. ↩
McPhillamy at [36]. ↩
Hoch at 301-302. See also R v Kilbourne [1973] AC 729 at 748-749 per Lord Hailsham of St Marylebone LC. ↩
McPhillamy at [35] per Edelman J. ↩
Hughes at [37]. ↩
AB at 63. ↩
AB at 62.27-29. ↩
AB at 136.11-37. ↩
Nibigira at [67]-[109]. ↩
Nibigira at [111]-[112]. ↩
AB at 136-137. ↩
AB at 144. ↩
AB at 113. ↩
AB at 569-571. ↩
AB at 143. ↩
AB at 146. ↩
AB at 150. ↩
AB at 144. ↩
AB at 153-154. ↩
AB at 154-155. ↩
Dhanhoa v The Queen (2003) 217 CLR 1. ↩
AB at 154.40-41. ↩
[2018] QCA 43. ↩
Wollaston at [27]. ↩
[2011] QCA 19. ↩
AB at 15. ↩
AB at 16. ↩
AB at 17. ↩
AB at 18. ↩
AB at 21. ↩
AB at 36. ↩
AB at 41. ↩
AB at 43. ↩
AB at 50. ↩
AB at 41-42; 50. ↩
AB at 43. ↩
AB at 66-67. ↩
AB at 102. ↩
AB at 87. ↩
AB at 102. ↩
AB at 137-138. ↩
AB at 144. ↩
AB at 147. ↩
AB at 145. ↩
AB at 145. ↩
AB at 149. ↩
AB at 644.31-32. ↩
AB at 644.31-38. ↩
AB at 645.1-14. ↩
AB at 645.23-45. ↩
AB at 645.43-44. ↩
[2009] QCA 270. ↩
[2015] QCA 188. ↩
[2015] QCA 200. ↩
[2013] QCA 44. ↩
[2013] QCA 186. ↩
[2013] QCA 374. ↩
[2012] QCA 74. ↩