Criminal Law - Evidence - Similar facts - Relevance - Sexual offences - Complainants two sisters - Possibility of concoction or contamination of their minds by communications between them - Whether admissions of accused affected the possibility.

Evidence Act 2001 (Tas), ss98(1) and 101(2).

Tasmania v S [2004] TASSC 84; L v Tasmania [2006] TASSC 59; R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700, followed.

Judgment Number: [2006] TASSC 110

1 The accused has been charged on an indictment with two counts of maintaining a sexual relationship with a young person under the age of 17 years, contrary to the Criminal Code, s125A. The first count alleges that he did so between on or about 1 January 2000 and on or about 31 December 2001 with A, who was born on 17 November 1988. A second count alleges that he did so between on or about 1 January 2004 and on or about 31 December 2004 with L, who was born on 20 February 1991. The complainants are the daughters of Mr and Mrs M. At all material times the accused had a sexual relationship with Mrs M and he lived with her and the complainants in their home. He pleaded not guilty to both charges.

2 Under the Code, s326(3), the accused applied for an order for separate trials of the counts, claiming that he might be prejudiced or embarrassed in his defence by reason of being charged with more than one crime on the same indictment. I agreed to hear and determine the application before a jury was sworn, under the power to do so in s361A(1).

3 The State maintains that there should not be separate trials because the evidence of what the accused did with each girl will be relevant and admissible on the count concerning the other girl. With that in mind, the Director of Public Prosecutions served on the accused a notice that purported to be given under s99 of the Evidence Act 2001 (incorrectly dated 2002 on the notice), and which gave notice that tendency evidence would be given by the complainants at the trial. The tendency evidence was identified as:

(a) the relationship of the accused to each complainant;

(d) where the acts occurred, for example, in each of the complainant's bedrooms;

(f) that he was wearing (only) tracksuit or "bottoms" of some sort;

(i) that he inserted his finger into their vaginas;

4 The State seeks to rely on the evidence of each complainant concerning those matters as relevant and admissible on the trial of the count concerning the other complainant because, it claims, the events described by one complainant are related to the events described by the other complainant in the sense that they are substantially and relevantly similar events and the circumstances in which they occurred were substantially similar. Those factors must be established for the admission of coincidence evidence under the Evidence Act, s98, and are not required for the admission of tendency evidence under section 97. However, by the close of evidence on the voir dire I was informed that counsel for both parties agreed that the proposed evidence was more correctly described as coincidence evidence and not as tendency evidence. Counsel for the accused said that no point was taken that in the notice served on his client the nature of the evidence was erroneously categorised in that regard.

5 Counsel for the accused conceded that the evidence in question qualified for admission under the coincidence rule in s98 as related events because the events described by the complainants were substantially and relevantly similar and the circumstances in which they occurred were substantially similar. However, he sought rejection of the material evidence of each complainant on the trial of the count concerning the other complainant because it had not been shown that the probative value of the evidence substantially outweighed any prejudicial effect it might have on the accused, relying on s101(2) which is in these terms:

"(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant."

In particular, it was submitted that there was a reasonable possibility of concoction of evidence by one or both complainants, or of contamination of their memories of the events by reason of communications between them, to the extent that the probative value of their evidence was substantially weakened.

6 The parties agreed that the application was to be determined upon the basis of testimony on the voir dire of five witnesses and three documents. The witnesses were the two complainants, A and L, their mother, Mrs M, their half-sister, T, and Detective Sergeant Mark Wright. The documents to be taken into account are a transcript of a police video interview with the accused, a statutory declaration of L's friend, K, and a note handwritten by L.

7 The evidence established that in 2000 Mrs M was living with the complainants at Prospect, when she commenced her relationship with the accused. He slept overnight on a sofa in the lounge, possibly for about a month, and then slept with Mrs M in her bedroom until about September 2001 when they all moved to a house in Summerhill. They lived there until January 2005 when the complainants made their allegations to the police and the accused was charged.

8 It was the evidence of A that in 2000, when aged about 12, at Prospect at the time the accused was sleeping on the lounge sofa, her mother was out at work and she had taken herself to her mother's bed and was starting to go to sleep when the accused got in next to her. He rubbed her belly, then her nipples and finally her vagina. He then placed her hand on his erect penis and moved her hand up and down. She pulled away from him. He told her not to tell her mother. At a family barbecue the next day he said to her that "it takes two to tango and don't tell your mother because no-one will believe you". She did not tell her mother.

9 A's evidence was that he continued to sexually deal with her at Prospect in 2001, prior to the move to Summerhill but not after the move. She said that after he had commenced sleeping in her mother's bed, he kept coming into her bedroom, getting into her bed and indecently dealing with her. It happened on many occasions. She said it might take place up to four days in a row and then every now and again. It happened mainly at night and she thought it was mostly at times when her mother was out at work. He would be dressed in tracksuit pants and no underwear. Essentially he did the same things each time he came. She did not report what he was doing to her mother because she was scared she would not be believed and she was embarrassed. She referred to an occasion towards the end of 2000 when she was lying on the sofa late one night watching a DVD. She described him putting himself next to her and touching her, feeling her breasts and vagina. He then inserted his finger in her vagina, which hurt. He put her hand on his penis, which she held for a little while and then she pulled away.

10 She also described an occasion early in time when he was living with his friend, C, and staying at her home only a few nights a week. She went to C's home with him to collect some games. At one point he called her into his bedroom and told her to lie on the bed, which she did. He then started to touch her breasts and vagina. She got up and left the room. She described another occasion when she was home sick and he got into bed with her and started to play with her nipples and feel her vagina. She got up and went to the toilet.

11 In some general evidence A said that a few times he kissed her on the mouth and then tried to put his tongue in her mouth, at which she pulled away. On at least some of the occasions, she could not say how many, he masturbated in front of her and he also ejaculated, cleaning himself up with a "T-shirt or something".

12 Asked how the assaults came to an end, A gave evidence-in chief about an occasion at a friend's house that was also referred to in the evidence of her mother and L. She said that her mother collapsed and was taken to hospital. In the course of that event, the accused picked her mother up in a fashion that A considered to be rough. That caused her to hate him. Thereafter, he did not touch her again, she believed because he could see how much she hated him. She gave evidence of telling him that she hated him over a period of a couple of weeks. She did not tell him why she hated him.

13 It was her evidence that she got on well with him at first. In cross-examination she accepted that she hated him before the event when her mother collapsed, but upon that event occurring "that's when I made it really obvious that I hated him". She agreed with the accused's counsel that the accused's offending went on for about a year, that it sometimes occurred in her bedroom and sometimes on a sofa in the lounge room. She also agreed that the event when her mother collapsed occurred in 2000, when she was in Grade 6, and that it was also during the year in which he had commenced offending against her. She was not asked to explain her acceptance of that with her evidence that he continued coming to her bedroom and offending in 2001.

14 L's evidence was that the accused lived with them at Prospect for less than a year and thereafter he lived with them at Summerhill. She got on well with him for some time. In her evidence-in-chief she described his offending against her as commencing at Summerhill in the first school term of 2004, when she was aged 12 and in Grade 7 at high school. However, in cross-examination she described it as commencing during the previous holidays just before the first school term.

15 Her description of the assaults was that he went into her bedroom at about 6.30am. Sometimes she would be awake, sometimes asleep. He would get into bed with her. The first couple of times he just hugged her. After that he started to touch her chest. She thinks that her breasts were developing then. He rubbed them under her clothing. After a further period of time, he would first touch her breast and then move on to touch her vagina with his fingers. Eventually he moved on to also putting her hand on his erect penis and making her squeeze it. She said it went on for a matter of seconds. He did not ejaculate in her bed. She had to touch his penis on two consecutive days only. He was wearing tracksuit pants and nothing else. She said that he tried to kiss her, but she was not asked to be specific about that.

16 She described his rubbing of her vagina leading to penetration with his finger. She supposed that started a couple of weeks after he commenced to get into her bed. She said it hurt and afterwards "when I weed it stang". Asked whether he would take her clothes off, she said he would take her pants off and start touching her vagina again. To stop him touching it she would get up and take the dog for a walk. On one occasion when he was penetrating her she started to cry and went to the toilet. She returned and got back into the bed and he commenced to touch her breasts again.

17 L's evidence was that her mother was in bed when the accused was assaulting her. She said that he would not usually talk to her when he was doing so. She described the assaults as occurring a few times a week and continuing until January 2005. She said that they only occurred in her bedroom. However, she related an occasion when she went go-karting with him and on return he asked to have a shower with her, which she refused. She also referred to an occasion in about the middle of 2004 when she refused his request to penetrate her with his penis.

18 L said that she was told by him not to tell anyone and that they were more than friends to be doing it. She did not disclose what was happening to her mother. She recounted an occasion when her mother came into the bedroom when the accused was in bed with her and her mother told him to get out. She gave evidence of an occasion, probably in the school holidays at the commencement of 2004, when she asked her mother not to let him come into her bedroom anymore, to which her mother replied "I've been trying". He stopped for about a month but then resumed what he had been doing. She also gave evidence of asking her mother a second time to stop him coming into her room. She accepted in cross-examination that she told the police that in the middle of August he stopped coming in all together. However, when she was asked whether that was so, she initially said that he stopped for a while, and when asked whether he started again, she said she was not sure.

19 It was A's evidence that about six months before January 2005 she noticed that L had come to dislike the accused, having observed that L had stopped doing things with him and had stopped talking to him.

20 The accused lived in L's home for over four years and according to her evidence his assaults only occurred during the last year. She said that prior to the assaults he had treated her "really good" and she liked him. Her feelings about him changed about a month after he started assaulting her. She said "I got sick of it". Asked how she felt towards him then, she said that she felt hatred. She also described an incident when her mother and the accused were fighting in the kitchen and L and A were in A's bedroom. L said that she heard her mother scream and a thud, and on going to the kitchen she found her mother crying and a chair had been knocked over. Upon seeing that she took up a pair of scissors, but A stopped her from using them. She was not asked questions that indicated what made that incident of particular relevance to the issues before the Court. However, her mother's evidence explained that.

21 Mrs M confirmed that her relationship with the accused extended from 2000 until January 2005 and that the members of the household moved from Prospect to Summerhill in September 2001. She described the relationship between the accused and the two girls as "really good" at first. He did a lot of things with them that their father did not and they enjoyed spending time with him. However, while they were still at Prospect she noticed that A had taken a sudden dislike to him. Thereafter, the only change was that the dislike worsened. In cross-examination she confirmed that she noticed the change in A's attitude towards the accused after an occasion in 2000, before they moved from Prospect, when Mrs M collapsed at a friend's place and was taken to hospital. When she regained consciousness she noticed bruising on her arms and across her ribs. Her evidence about that confirmed A's evidence that as a result of the incident that day she demonstrated her hatred for the accused and he ceased to indecently assault her.

22 Evidence was also given by T, A's half-sister, that after a while she observed that A had developed a hatred for the accused for a reason that T did not then understand.

23 Mrs M recalls an incident at Summerhill in 2003, possibly towards the end of the year. One morning at about 7am she rose from bed and on the way to the toilet noticed the accused, fully clothed, lying on L's bed with L. She asked what he was doing and he said he was watching television. That annoyed Mrs M particularly because L had asked her previously to keep him out of her room. Her evidence about those matters tendered to corroborate L's evidence of similar incidents. Mrs M recalls two occasions, maybe two weeks apart, when L asked her to keep the accused out of her bedroom, but she did not suspect the accused was indecently assaulting either of the girls prior to January 2005.

24 She said that she noticed a change in L's behaviour when she left primary school and moved to high school and started to get into fights. She also gave evidence of an incident in about October 2004 when she and the accused argued and the accused picked her up and pushed her across the dining room. She was on the floor when A and L came into the room. Both girls were screaming. L had a pair of scissors and A dragged L away. Mrs M noticed that after the incident L seemed to hate the accused and the two of them did not associate with each other as much as they had before.

25 A's evidence was that prior to January 2005 she had told no-one about what the accused had done with her. She said that she was embarrassed and thought no-one would believe her. Nor had L told her of what the accused had done with her, she said. They had said to each other that they hated him, but they had not communicated their reasons for doing so. That the two sisters did not communicate a great deal with each other was the subject of evidence. A's evidence was that they "never really talked that much". L's evidence was that they never shared secrets. Mrs M's evidence was that A was an inside person and L an outdoor person and although they got on with each other, there was not a real sisterly bond because they were always so different. They were not close to one another in what they did.

26 L's evidence was that in 2004 she told her good friend, K, something about what the accused had been doing with her. K told the police that on an occasion at the start of 2004, L was upset, started crying and told her that her mother's boyfriend had wanted to sleep with her. L made her promise not to tell any one because the accused had told her not to and if she did, he would hurt her mother or anyone else in the family. K also told the police that in about July 2004, L told her, in the course of a telephone call, that the accused had got into her bed. She also related an occasion in August or September 2004, when L told her that on the day before, after they had come back from go-karting, the accused asked her to have a shower with him and when she refused he pulled her by the arm. K told the police that L had never said that anything sexual had happened to her.

27 A's evidence that prior to January 2005 there had been no communications between her and L about what the accused had been doing with them, was contradicted in one respect by L in the course of cross-examination, although there was some uncertainty about her evidence. She accepted that there was an occasion when A told her that the accused had made her touch his penis. She thought at the time that A was lying and had made it up because she hated him. She was "pretty sure" that A told her before the accused started doing things to her and therefore, "may be" it was before 2004. She said the conversation occurred when she had just left A's bedroom and was walking away down the hallway when A yelled it out, and as a result she returned to A's room and told her "you can't make up things like that", which was what she thought A had done. There was no further discussion of the matter. L said that prior to January 2005, she had not told A what the accused had done with her. That was A's evidence too.

28 On 22 January 2005, A and L went to the Launceston police station with T. Each provided a statutory declaration independently of the other and without seeing the declarations of the other. The evidence of the circumstances leading up to that day was as follows.

29 The two complainants, their mother and the accused were still living together at Summerhill. In about mid-January 2005, Mrs M travelled to Queensland to stay with a friend for about ten days. The day she left, A went to stay at the home of her friend, E. L remained at home with the accused for one night. Her evidence was that the accused came into her bedroom that night and asked if she wanted to sleep with him. She refused to do so and next day, not wanting to stay in the house any longer with him, she also went to stay at E's home. Her evidence was that the only thing she said to A when she went there was about the shower incident. She communicated with her half-sister, T, that she wanted to stay with her and on Tuesday, 18 January, went to stay with T.

30 On Wednesday, 19 January 2005, L's father telephoned her. L's evidence was that he told her she was not to go back to stay in the same house with the accused. He did not say why. She had not told him of her treatment at the hands of the accused. T's evidence was that after L had finished speaking to their father, she also spoke to him. He asked for how long Mrs M was in Queensland and then repeated what he had said to L, that he did not want her to go home and stay under the same roof as the accused. After the telephone call, T asked L what it was about. L said "Oh, God, he must know" and "A must have told him". T's evidence was to the effect that L was extremely upset and after efforts to have her say what was affecting her, she indicated that the accused had hurt her in some way and that it was sexual. Asked whether the accused had sex with her, L sobbed "everything but". Asked whether she had told anyone, L said "I told A Sunday", explaining that on the previous Sunday she told A the accused had tried to have her sleep with him on the Saturday evening. According to T, L told her that A's response to being told about that was to say that she always knew he was a paedophile. T added that L also mentioned something about the accused asking her to have a shower with him but did not elaborate. L also told her that "K knew", no doubt referring to her friend, K.

31 L's evidence-in-chief was that she told T that what she had told A was that the accused had wanted to have a shower with her. However, in cross-examination she expressed some uncertainty as to whether she said she had told A that the accused wanted to sleep with her or whether it was that he wanted to have a shower with her. She thought she had told A about the shower incident and not about a request from him that she sleep with him. She was clearly uncertain about the matter, although she was adamant that she had only mentioned one or other of the two possibilities to A at E's home and had made no complaint at that time of other dealings with her by the accused.

32 A's evidence was that L told her that day about the accused wanting to have a shower with her and also, she thought, to sleep with L. She too appeared uncertain in her recollection about that. She said she was told nothing else by L at that time.

33 T's evidence was that because L became too choked up to relate what the accused had done to her, she was asked to take her time and write it down. About half an hour later, she handed T a folded piece of paper on which she had written:

"At the start of last year B use [sic] to come in to my room and get into bed with me. He use [sic] to feel my boobs and stuck his fingers up my vigina [sic]. He also put my hand on his penius [sic]. A few months later we went gocarting [sic] in the mud we were really muddy and when we got home no one was home and he asked me if I would have a shower with him I said no and he grabed [sic] my hand and pulled me I pulled my hand back and said no again and then my friend D knocked at the dore [sic] and we went for a walk. B did this all through the year untill [sic] I told mum not to let him in my room but he still did any way. Then it stopped untill [sic] Sunday when he asked me to get into bed with him.

* he told me I wasnt [sic] allowed to tell any one and we were more than friends."

34 T immediately contacted A and next morning they met at a McDonald's restaurant. She gave her L's note to read. A's evidence was that it was the first time she knew that the accused had been doing the things L had noted. T's evidence was of A starting to shake. She asked A several times if anything had ever happened to her and she kept denying it, but with her head down. T told her that she would have to ring her mother, Mrs M, to which A responded "what if Mum takes B's word against ours".

35 T telephoned Mrs M and informed her of a little of L's allegations and of the fact that A had denied anything similar had happened with her although A was not talking very much. Mrs M telephoned A and asked her if she knew what had happened between L and the accused, to which A replied "not really". Mrs M asked A whether anything had happened to her and she started crying and said "yes, he did the same thing to me". With the agreement of Mrs M, T took the two girls to the police. Her evidence was that on the way she asked them if the accused had masturbated in front of them, which L denied but A admitted had happened at Prospect.

36 Police video interviewed the accused on 23 January 2005, the day after the girls had made their complaints. He made a number of admissions. I will refer to their extent in a moment, but first note my observation that he was obviously conscious that he had done more than that to which he was admitting, that is to say I gained the clear impression that he was playing down the extent to which he had assaulted the girls and the number of occasions on which he had done so. Examples of his obvious reticence about making a full confession may easily be found in the interview. Early examples are that he admitted that he had rubbed his hands over their chests, stomachs and genital areas "in a slight fashion"; when talking about A, he said "I probably been half asleep rubbing and not even knowing about it but just cuddling and then realising well I've done something there that I shouldn't have done but"; asked if there was an occasion when A was in her mother's bed and he had got into bed with her, he accepted only that it was possible but he was not saying she was wrong; asked if he would have cuddled her then he said "I probably would have put my arm around her and give her a cuddle, watch a bit of tele"; and asked if he pulled her top up and started rubbing her stomach he said "that's probably right, yeah".

37 He made the following admissions concerning A. Twice in the middle of the night at Prospect he climbed into bed with her but he only gave her cuddles there. Apart from that she lay on the living room couch with him on a number of occasions. On the couch he probably touched her tummy and breasts half a dozen times and he possibly touched her on the vagina on two occasions. It is possible that he would lick his fingers before touching her on the vagina but "I can't really say if I did it or not". She had touched his penis twice. He had moved her hand up and down on his penis so as to masturbate him. Once he had masturbated himself while next to her but he did not think that A saw him doing it. He told her not to tell her mother and that if she did, something really bad would happen to both of them. Ultimately he maintained that he only dealt with A in an indecent manner on two occasions. However, that limitation was inconsistent with his earlier statements as to the number of times he had touched her on the tummy, breasts and vagina and she had touched his penis.

38 Concerning L it was put to him in the interview that his indecent assaults of her started in the first term of 2004 by him getting into bed with her. He admitted getting into bed with her probably every three days and to giving her a cuddle. He would rub her chest. He also rubbed her vagina. It was possible, but he could not remember, that he would get L to touch him on the penis. It was possible that he put her hand on his erect penis and that he squeezed her hand around it. He told her not to say anything as he would get into a lot of trouble. He accepted that on the previous Saturday he asked her to get into his bed. Ultimately he maintained that he only touched her on the vagina once, maybe twice, and that he only had her touch him on the penis once or twice. He appeared to accept that his assaults had stopped the previous August.

39 Counsel agreed that I should apply what was said by Underwood CJ in Tasmania v S [2004] TASSC 84 in the course of adopting R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700. The Court of Criminal Appeal has since dealt with the matter in L v Tasmania [2006] TASSC 59 and the views of the Chief Justice were endorsed. By virtue of the Evidence Act, ss97(1), 98(1) and 101(2), the evidence of one complainant of what the accused did with her is admissible on the trial with respect to the other complainant if that evidence, either by itself or having regard to other evidence, has significant probative value and if the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.

40 Counsel for the accused conceded that there was the necessary significant probative value in the evidence of each complainant, as is required for the admission of coincidence evidence, because they each described events that were substantially or relevantly similar and the circumstances in which they occurred were substantially similar. See the Evidence Act, s98(2). However, he submitted that the probative value of the evidence did not substantially outweigh any prejudicial effect the evidence might have on the accused, a requirement of s101(2), and in particular, that the probative value of the evidence of the two complainants was significantly reduced because the similarities in their complaints can be accounted for by a real possibility, and not merely a speculative chance, of contamination of the mind of each by their communications with one another. See R v Robertson (1997) 91 A Crim R 388 at 409; Tasmania v S at par[14]. In particular, counsel for the accused relied on the last sentence in the following passage from the judgment of Ambrose J in Robertson:

"Stated shortly it is necessary for the trial judge to determine whether there is a real chance of concoction or contamination rather than a merely speculative chance. Similar facts could not be reasonably explained on the basis of concoction unless there was a real chance of it. To determine whether there is a real chance the trial judge must look at the facts of the case before him and determine what were the circumstances of the witnesses sought to be called to give similar fact evidence. Undoubtedly where such witnesses are in close relationship and there is both an opportunity and motivation to concoct and they give evidence of the same sorts of sexual behaviour on the part of an accused person, the determination of admissibility on the facts in Hoch [1988] HCA 50; (1988) 165 CLR 292 and Youngson unreported, Court of Criminal Appeal, Qld, 19 August 1993 will perhaps be a compelling indication of the determination required."

41 It was conceded by counsel for the accused that because of the support of the respective versions of the complainants that is to be found in the accused's police interview, it cannot be argued that either girl has wholly concocted her complaints. What he submitted was that there is a real possibility that each has exaggerated her complaints in terms of the number of occasions upon which she was assaulted, the period over which the assaults occurred and the nature of them, and that a real possibility of contamination of their minds arises from the evidence that the girls had a motive to exaggerate their complaints because they hated the accused and they had plenty of opportunity available to them to exchange information concerning what the accused had done and what they would say about it. The evidence revealed some relevant communications between them, although they were not substantial so far as detail was concerned, and it also included the fact that L had read A's handwritten note of what the accused had been doing with her. One piece of evidence pointed to by counsel concerned the statements of L to T, following the telephone call from their father on 19 January 2005, that "Oh, God, he must know" and "A must have told him", which suggested that at least some detail concerning assaults by the accused may have been discussed between them. Counsel for the accused also pointed to L's evidence that A told her, possibly before 2004, that the accused had made her touch his penis. However, the accused's reliance on that piece of evidence is misplaced having regard to his admissions to the police that he had both girls touch his penis.

42 I find the arguments of counsel for the State far more persuasive. He relied heavily on the accused's interview as evidence of the truth of much of the complainants' evidence. He also pointed to the evidence of T, which I found credible, of the difficulty she had in persuading both L and A to disclose what the accused had done with them. I am satisfied that they were reluctant complainants, A particularly so. Although they hated the accused, they had made no earlier complaints designed to have him removed from their home. When they finally disclosed what had happened, they did so with reticence and not in a way that was cooperative with each other. Each had to be separately persuaded to disclose what had occurred.

43 If it were not for the evidence of the police interview with the accused and his admissions and answers generally to questions that were asked of him, it may well be that I would be concluding that there was a real chance of concoction or contamination of the minds of the girls because of their hatred of him, their communications with each other and the opportunities they had to communicate with each other. However, in light of the fact that his interview corroborates much of each girl's evidence and their reticence about complaining, there is no real possibility that the respective versions of the complainants have been concocted or are the product of contamination in the sense that has been argued, and I conclude that the probative value of the evidence of each of the complainants, so far as it may be used on the trial concerning the other, substantially outweighs any prejudicial effect it may have on the accused.

44 Accordingly, the application to sever the indictment will be refused.