Tasmania v L [2013] TASSC 47

Evidence Act 2001 (Tas), ss97(1), 101(2).

KMJ v Tasmania [2011] TASCCA 7; Tasmania v W (No 2) [2012] TASSC 48, followed.

Sutton v R [1984] HCA 5; (1983) 152 CLR 528; Tasmania v Martin (No 2) [2011] TASSC 36; FB v R; R v FB [2011] NSWCCA 217; R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228; BP v R; R v BP [2010] NSWCCA 303, referred to.

Criminal Law - Procedure - Information, indictment or presentment - Joinder - Of counts - By statute - Same facts or series of offences of same or similar character.

R v Carr [2003] TASSC 123; R v Kray [1970] 1 QB 125; Ludlow v Metropolitan Police Commissioner [1971] AC 29; Sutton v R [1984] HCA 5; (1984) 152 CLR 528; De Jesus v R [1986] HCA 65; (1986) 68 ALR 1, followed.

Judgment Number: [2013] TASSC 47

1 The accused is indicted on three counts of maintaining a sexual relationship with a young person under the age of 17 years contrary to s125A of the Criminal Code 1924 ("the Code"). The Crown case, as pleaded in the indictment and the particulars given independently of the indictment, is:

• as to count 1, that the accused is guilty because he committed an unlawful sexual act in relation to the young male person, who I will refer to as X, on four occasions between 12 May 1992 and 11 May 1996;
• as to count 2, that the accused is guilty because he committed an unlawful sexual act in relation to a young male person, who I will refer to as Y, on five occasions between 1 September 1993 and 31 December 1994; and
• as to count 3, that the accused is guilty because he committed an unlawful sexual act in relation to the young male person, who I will refer to as Z, on three occasions between 27 March 1999 and 15 February 2000.

2 The accused applies for an order that the indictment should be severed. The application is made on two bases:

(a) the inclusion of the three counts in the same indictment offends s311 of the Code because they do not "arise substantially out of the same facts or closely related facts, or are, or form part of, a series of crimes of the same or a similar character"; and

(b) the Court should order separate trials of each count pursuant to the Code, s326(3), because the accused "may be prejudiced or embarrassed in his defence by reason of being charged with more than one crime in the same indictment".

3 An accused person is guilty of maintaining a sexual relationship with a young person if it is proved that during a particular period the accused committed an unlawful sexual act in relation to a person under 17, to whom the accused is not married, on at least three occasions; s125A(3). The term "unlawful sexual act" is defined in s125A(1) as an act that constitutes an offence under ss124, 125B, 126, 127, 127A, 133 or 185. Those relevant to this indictment are ss124 (sexual intercourse with a young person), 125B (indecent act with a young person) and 127 (indecent assault).

4 In about 1989 M moved from interstate with her three sons to live in a small rural village in Tasmania. Her eldest son, X, was born in 1979. At the time of the move he was about 10. He is now 34. M's second son, Y, was born in 1981. At the time of the move he was about 8. He is now 32. M's youngest son, Z, was born in 1986. At the time of the move he was 2. He is now 27.

5 Within a few months of her arrival, M met the accused through mutual friends. He lived in a house on a small rural property about 10 to 20 minutes drive from M's home. From time to time the accused visited M and he got to know each of her sons.

6 X gave the following evidence on the voir dire. By 1992 when he was 12 or 13 years old, he was being paid to do odd jobs in the area near where he lived. The accused offered him some work at his home, chopping firewood, cleaning up old timber, checking fences and pumps. How often he worked for the accused depended on the time of the year and his school commitments. During summer he worked every week or two and in winter less often, perhaps every month or two. The arrangement persisted until he was about 16. He turned 17 in 1996.

7 On each occasion X worked for the accused for at least three or four hours and sometimes for longer. After X had been working for the accused for six months or so, X stayed the night at the accused's house for the first time. After they had finished working for the day the accused asked X if he wanted to shower. He then offered X a massage. The accused suggested that X return after his shower wearing a towel. On the sheepskin on the floor in front of the fire in the living room area adjacent to the kitchen the accused massaged X's whole body with oil. Both became aroused. After raising X up onto his hands and knees, the accused briefly penetrated X's anus with his penis. However X told him to stop because it hurt, and the accused immediately complied. The accused then masturbated X until he ejaculated, put his own penis into X's mouth, and then the accused masturbated himself until he ejaculated. During these events the accused remarked to X that he had a large, beautiful penis, describing it with words such as "elegant". Afterwards they drank coffee and played chess. X slept on the sheepskin in front of the fire. The Crown contends that the conduct of the accused on that day amounts to an unlawful sexual act under s125A of the Code in that it constitutes at least one act of sexual intercourse with a young person.

8 After the first sexual encounter between X and the accused, nearly every subsequent visit by X to the accused's house for work was accompanied by sexual acts. X said that he was a willing partner although he felt some guilt about his participation. He said he received oral sex on "just about every occasion it was offered" and he "reciprocated". His time at the accused's house was spent playing chess, which he said "became the foundation of the relationship". While playing chess they would talk about women or sex and look at magazines or photographic books with images of naked women. They talked about their respective tastes in women, including in X's case whether he was attracted to girls that he already knew or might be interested in. They almost always smoked cannabis. X did not remember consuming alcohol with the accused. Sexual encounters often began with the accused asking X "are you feeling horny" or words to that effect.

9 The second unlawful sexual act relied on by the Crown concerning X is alleged to have occurred in the accused's car. They went for a drive together on X's mother's property. They both started masturbating and then performed oral sex on each other. The Crown contends that the accused's conduct constitutes an unlawful sexual act as sexual intercourse with a young person.

10 The third unlawful sexual act relied on by the Crown concerning X is alleged to have occurred after X and the accused had driven to a local beach. There they both smoked cannabis. Uncomfortable about participating in sexual activity in a public area, X suggested they return to the accused's house where the accused then performed oral sex on X in a bed in the sunroom. The Crown contends that the accused's conduct constitutes an unlawful sexual act as sexual intercourse with a young person.

11 The fourth unlawful sexual act relied on by the Crown concerning X and the accused occurred when X was 16. During the late afternoon the accused came to the loft of the shed at M's house where X slept. The accused climbed up the ladder and came in. He asked if X was "horny", and performed oral sex on him until X ejaculated. The accused became angry when X did not agree to perform oral sex on him, called him a "little cunt" and left. The Crown contends that the accused's conduct constitutes an unlawful sexual act as sexual intercourse with a young person. That was the final sexual encounter between the accused and X, although they "continued to be friends for some time".

12 X also gave evidence about an occasion involving the accused and his then partner, who I will refer to as H. When X was about 15, he talked to the accused about his interest in having sex with a female. The accused suggested that H may be interested. Subsequently X went to H's house from the school bus and met the accused there. H arrived not long afterwards. After dinner, she showered and changed and went to bed. The accused called X into H's bedroom and beckoned him into the bed with H. However X, feeling tense and nervous, and believing he had not been encouraged by H, left and slept on the couch in the lounge room.

13 Y gave the following evidence on the voir dire. Y is two years younger than his brother X. Y had his 12th birthday in 1993.

14 The first unlawful sexual act relied on by the Crown concerning Y is alleged to have occurred at M's home. When he was about 12½, Y was in his bedroom doing exercises. The accused was in the house speaking with M. When M left the house, the accused went to Y's room. Y was sitting on his bed. The accused knelt in front of Y. With one hand the accused rubbed Y's upper thigh over his tracksuit trousers. He did not touch Y's genitals. He pushed Y lightly on his chest, but with sufficient force to make him fall back on his bed. Y told the accused that he "wasn't into this shit", and the accused immediately desisted and stood up, saying something like, "I didn't force anything on to you". The Crown contends that the accused's conduct constitutes an unlawful sexual act as an indecent assault.

15 The following year, 1994, Y started doing odd jobs in the area where he lived. The accused asked Y if he would "like to do some work at his house". Y agreed and the accused picked him up from home in his car and took him to his property. They worked most of the day repairing fences. Afterwards the accused did not take Y straight home. It is then that the second unlawful sexual act relied on by the Crown concerning Y is alleged to have occurred. They sat on the couch near the open fire in the living room. The accused opened a bottle of red wine and both of them drank some. The accused rolled a cannabis cigarette and, after smoking some of it himself, offered some to Y. Y tried to smoke the cannabis but it made him cough so he gave it back. The accused then removed his penis from his trousers and, while seated on the couch next to Y, started masturbating himself. The accused then went to his knees on the sheepskin on the floor near the couch and while rubbing Y on his inner thigh over his jeans said to Y "I think you should get your prick out". He then undid Y's fly, removed his penis, and masturbated Y, during which he lowered Y's jeans and underpants. The accused then put Y's hand on Y's own penis and encouraged him to masturbate himself, showing him how he should do so. The accused then put Y's penis in his mouth before masturbating Y until he ejaculated. While this was happening the accused was whispering things in a croaky voice, including "You've got a really nice prick". The Crown alleges that the accused's conduct amounts to a series of unlawful sexual acts constituted by indecent assault, indecent acts with a young person and sexual intercourse with a young person.

16 The third unlawful sexual act relied on by the Crown concerning Y is alleged to have occurred about two weeks later. The accused arranged for Y to go to his property again. They collected firewood for most of the day before the accused took Y back to the house. While sitting on the couch near the fireplace, they both drank red wine whilst the accused also smoked cannabis. Y declined the cannabis. The accused suggested that Y should shower, after which the accused handed him a towel and said, "Dry yourself off and wrap it around you". They returned to the couch where the accused put his hand on Y's thigh under the towel. The towel fell off and the accused masturbated Y, before performing oral sex on him. The accused then placed cream on Y's penis and masturbated him while they were both on their knees on the sheepskin between the fire and the couch. The accused then placed his backside towards Y's stomach and placed Y's penis between his upper legs while saying in a croaky voice, "I hope that feels okay". There was then some mutual masturbation until Y ejaculated. The accused later drove Y home. The Crown contends that the accused's conduct amounts to a series of unlawful sexual acts constituted by either an indecent act with a young person, indecent assault and attempted sexual intercourse with a young person.

17 The fourth unlawful sexual act relied on by the Crown concerning Y is alleged to have occurred on an occasion when the accused asked Y to go to his house to help him with a cow that had died. He picked Y up from home in his car. On the way they drove through a football ground where the accused stopped when they saw a young girl riding a horse. The accused approached the girl, complimented her on how pretty she looked on the horse, and later said to Y that "horse rider girls are good to get". After arriving at the accused's property they worked most of the day before returning to his house. The accused offered Y red wine, which he drank. They sat on the couch and Y's clothes were removed. The accused masturbated him, again telling him he "had a nice prick", before placing Y's penis in his mouth. Y then masturbated the accused. The Crown contends that this conduct amounts to an unlawful sexual act or acts constituted by either an indecent act with a young person, indecent assault and sexual intercourse with a young person.

18 The fifth unlawful sexual act relied on by the Crown concerning Y is alleged to have occurred at the accused's house. Y was present when the accused's partner H, drove in. They drank coffee together and went on an outing in H's car before returning to the house. There they drank red wine. While H was out of the room the accused told Y to shower and return wearing his tee-shirt and jeans, but no underwear. Y did so and when he returned the accused and H were sitting on the couch. The fire was lit. H went to the kitchen to make coffee. While she was standing at the bench, the accused led Y to the kitchen, and while standing behind H, removed Y's erect penis from his trousers and rubbed it in between H's legs. She responded until, upon seeing it was Y and not the accused, she pulled away. Y returned to the couch. After a short time the accused and H also returned to the couch. H lay with her legs on Y's lap while the accused was kissing her and stimulating her vagina. H performed oral sex on the accused. The accused masturbated Y and then directed H towards performing oral sex on Y. They then all went to the accused's main bedroom where, in the presence of Y, the accused had vaginal sex with H. The accused then encouraged Y to the bed where he stimulated H's clitoris by rubbing it with Y's erect penis. Y then desisted and returned to his own bedroom. The Crown contends that the accused's conduct amounts to a series of unlawful sexual acts constituted by either an indecent act with a young person, indecent assault and instigating sexual intercourse with a young person by instigating H to have oral sexual intercourse with Y.

19 Y gave general evidence that there were many other instances during the relevant period of sexual encounters with the accused, involving mutual masturbation and oral sex of each other. There was no other occasion involving sexual conduct with H.

20 Z gave the following evidence on the voir dire. Z was born in 1986. He is seven years younger than his brother X and five years younger that his brother Y. His 13th birthday was in 1999.

21 Z knew the accused as a regular visitor to his home. Like his brothers, from the age of about 13, Z did paid work in the community. The accused asked Z "if I would like to come and do some work for him". Z agreed and did so over a period of two or three years. His attendances varied in frequency depending on whether it was school holidays or not. He was paid in cash and in cannabis. Usually the accused would pick Z up from his home and drive him to the accused's property and back. Sometimes on the way they would drive to the township to shop, during which the accused would comment to Z about girls his age they would see, asking whether Z liked them or not. Sometimes the accused would make suggestive gestures about the girls, for example, by rubbing his clothing near his groin or biting his knuckle. Z said that the accused seemed interested in his response. A similar thing happened when, on one occasion, they saw two girls riding horses and swimming on the accused's property. On another occasion the accused showed Z a picture of his daughter, and asked "would you like to fuck her".

22 While at the accused's property the accused offered cannabis to Z, which they both smoked.

23 On the days that Z worked at the property they would return to the house where the accused would shower. He would then return to the living room wearing a towelling dressing gown and provided coffee and cannabis while they played chess. The accused showed Z books of art photography containing pictures of naked women. They discussed whether Z found the women attractive. Z recalled and described the first occasion during which the accused exhibited sexual conduct. After working during the day, the accused and Z returned to the house. It is then that the first unlawful sexual act relied on by the Crown concerning Z is alleged to have occurred. The accused showered and returned to the living area wearing his towelling dressing gown. He then commenced masturbating. Z felt "shocked by the fact that he had exposed himself to me", and removed himself to the kitchen. The accused followed him and reassured him by saying, "it's not gay, friends do this sort of thing". The Crown contends that the accused's conduct amounts to an unlawful sexual act constituted by an indecent act with a young person.

24 Z said that in the following visits the behaviour of the accused became more open. Not only did the accused masturbate himself, but he encouraged Z to also masturbate himself. Eventually Z did so. The accused advised him what do to and provided cream. On one occasion the accused attempted to touch Z's penis, but Z knocked his hand away and would not let him do so. That conduct constitutes the second unlawful sexual act relied on by the Crown concerning Z. The Crown contends that the accused's conduct amounts to an unlawful sexual act constituted as an attempted indecent assault.

25 The third unlawful sexual act relied on by the Crown concerning Z occurred when Z was "14, going on 15". He was at the accused's home. They both drank red wine and smoked cannabis. After they had eaten dinner, the accused showered and, on returning, told Z that after drinking alcohol "you need to massage the toxins out of the kidneys". He asked Z to let him massage him. This occurred "on the carpet or the rug ... in front of his fire". Z was wearing jeans and a tee-shirt. The accused massaged Z's lower back and upper buttocks. He asked Z to remove his belt, but Z did not agree. After a while the accused started to make slight moans and act aroused. Z felt pressure from the accused's erect penis against his legs. At that point Z rolled away, said he "wasn't comfortable with that", and went to the room he was to sleep in and locked the door. The Crown asserts that the conduct of the accused is an unlawful sexual act being a sexual assault.

Do the charges form part of a series of crimes of the same or similar character?

26 Section 311(2) of the Code provides that "charges of more than one crime may be joined in the same indictment, if those charges arise substantially out of the same facts or closely related facts, or are, or form part of, a series of crimes of the same or a similar character. In any other case an indictment shall charge one crime only." It is not contended in this case that the charges arise out of the same or closely related facts. Thus the indictment may include more than one charge if they form part of "a series of crimes of the same or a similar character". If they do not then the indictment must be severed.

27 As I was reminded by counsel for the accused the term "unlawful sexual act" in s125A includes an act that constitutes one of seven alternative offences which, in his submission, may not be of the same or similar character. I am, of course, to consider whether the charges in this case are a series of crimes of a similar character and in doing so I should bear in mind that each count incorporates at least three crimes.

28 For crimes to be a range of crimes of a similar character there must be some nexus between them, that is elements of similarity which, in the circumstances of the case, enable them to be described as a series. See R v Carr [2003] TASSC 123 at [6], R v Kray [1970] 1 QB 125 at 130, De Jesus v R [1986] HCA 65; (1986) 68 ALR 1, and Zammit v Western Australia [2007] WASCA 66; (2007) 34 WAR 302 at [24]. In Ludlow v Metropolitan Police Commissioner [1971] AC 29 the House of Lords held that a "sufficient nexus" involved both a legal and a factual similarity between the offences.

29 The necessary nexus between offences is established if the evidence of one is admissible on the trial of another; Sutton v R [1984] HCA 5; (1984) 152 CLR 528 at 562, Kray (supra) at 130 - 131, and Zammit (supra) at [24].

30 I am in no doubt that the offences in this case are a series of a similar character. Not only is the same offence alleged but the crimes that form the basis of each charge have a legal similarity - all concern either indecent assault contrary to s127 of the Code, or an indecent act with a young person contrary to s125B, or sexual intercourse with a young person contrary to s124. Moreover, the circumstances of and surrounding each offence have a distinct factual similarity. There are many common features. All involve boys aged in their early teens, they all involve similar sexual conduct most of which took place at the home of the accused, all involve taking the opportunity presented by the offer of paid work at the home of the accused, and all involve a similar method of engaging with the boys, using alcohol and/or cannabis to decrease inhibition, games of chess, sexually interesting images, and discussion of sexual interest in young girls to prompt conversation of a sexual nature. There are some differences between individual offences, but the differences are far outweighed by the similarities.

31 My conclusion that the offences have a sufficient factual and legal nexus is reinforced by the conclusion I have reached, for reasons I will later explain, that the evidence of each count is cross-admissible.

"Where, before trial or at any stage of the trial, it appears to a judge that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one crime in the same indictment, or that for any other reason it is desirable to direct that he should be tried separately for any one or more crimes charged in the indictment, the judge may order a separate trial of any count or counts in such indictment."

33 Ordinarily, where an accused is charged with a number of sexual offences, the charges should not be tried together if the evidence on one count is not admissible on the other counts. The risk is that a jury will decide each count on the basis of a prejudiced view of the accused once told about multiple instances of reprehensible conduct rather than on a rational assessment of the evidence. See P v R [2002] TASSC 61, Sutton v R (supra) at 531, De Jesus v R (supra) at 3 and Hoch v R [1988] HCA 50; (1988) 165 CLR 292 at 294.

"When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted."

35 It is well recognised that it is difficult to give directions to guard against the impermissible use of such evidence in cases involving a series of sexual offences: Sutton (supra), De Jesus (supra), Hoch (supra) and R v Randell [1999] TASSC 78.

36 However in this case the Crown contends that the evidence on each count, in the case of a charge under s125A of the various acts of unlawful sexual conduct that are the constituents of each count, is admissible on each other count as tendency evidence. The Crown seeks to lead, as relevant to whether the accused committed each crime charged on the indictment, evidence that he committed the other counts charged on the indictment. The Crown also seeks to lead evidence of other conduct of the accused directed towards the complainants that is not the subject of a charge, and conduct of the accused towards another person which is not the subject of a charge. If that evidence is admissible as contended then there is no purpose to be served in severing the indictment, and little risk of injustice to the accused arising from a refusal to do so because the evidence of each count is admissible on the trial of each of them in any event. The defence contends that the evidence is inadmissible.

37 The application I have been asked to determine is the application made by the accused to sever the indictment. It seems to me that a finding that the evidence of the charged conduct is cross-admissible is sufficient to dispose of the severance application. It follows that, in this case, the question of whether the severance application succeeds depends almost entirely on whether the evidence of one count is admissible towards proof of the guilt of the accused on the other counts.

38 By an amended notice dated 7 June 2013 the prosecution gave notice under the Evidence Act 2001, s97(1)(a), of an intention to adduce tendency evidence to show that the accused had a sexual interest in teenage boys, and a tendency to initiate and engage in sexual activity of the type described in the notice as follows:

"(a) Initiating sexual touching by touching boys on or near their genitals on the outside of their clothing

(b) A tendency to engage teenage boys in casual employment at his home

(d) Inviting boys to shower at his house and asking them to return in a towel or to dress in a particular way that allowed the accused access to their genitals

(e) Sexual contact being initiated in the lounge area, in front of the fire on rugs.

(f) Massaging boys and touching them in a sexual way

(j) Praising the boys' penis as if to empower them sexually.

(k) Attempting to engage in or engaging in anal intercourse.

(m) Repeatedly asking teenage boys to masturbate themselves in his presence.

(n) Demonstrating a sexual interest in teenage girls when in the company of teenage boys and/ or displaying an interest in the boys' sexual interest in teenage girls.

(o) Inviting boys to engage or engaging in sexual acts with boys and [female]

39 The notice in this case indicates an intention to adduce tendency evidence from each complainant and their mother M as well as one other witness who I will refer to as L.

40 Tendency evidence is evidence of the character, reputation or conduct of a person, or a tendency of a person; Evidence Act, ss97(1) and 3. It is not permissible to adduce evidence to prove the guilt of an accused by showing the person merely to have a tendency or disposition to commit crime, or to commit crimes of a particular kind, or to be the type of person likely to have committed the crime charged; Tasmania v Martin (No 2) [2011] TASSC 36 at [32]. However evidence that an accused person had a tendency to act in a particular way, or to have a particular state of mind, can be admissible to prove that he had that tendency. It is evidence that shows that because a person has acted in a certain way on previous occasions the person is more likely to have acted in a similar way on another occasion. Put another way, evidence that a person has or had a particular tendency supports an inference that it is more probable that, on a particular occasion relevant to the proceedings, the person acted in a particular way or had a particular state of mind. See FB v R; R v FB [2011] NSWCCA 217 in which Whealy JA referred to the judgment of Simpson J (with whom McClellan CJ at CL agreed) in R v Cittadini [2008] NSWCCA 256; (2008) 189 A Crim R 492:

"Tendency evidence is tendered to prove (by inference), that because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceedings, acted in a particular way (or had a particular state of mind)."

41 Thus the evidence of one complainant about what the accused did to him is admissible on the trial of another complainant to prove that the accused has or had a tendency to act in a particular way, but only if the court thinks that the evidence, either by itself or having regard to other evidence will have "significant probative value": s97(1)(b). Moreover the tendency evidence cannot be used unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused: s101(2).

42 "Probative value" is defined in the Evidence Act, s3(1), to mean "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". In assessing the probative value of the evidence, it must be assumed that the evidence will be accepted, and that any inference open to the jury and favourable to the prosecution will be drawn: Tasmania v Finnegan (No 2) [2012] TASSC 1, Tasmania v W (No 2) [2012] TASSC 48, R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228; KMJ v Tasmania [2011] TASCCA 7; R v Sood [2007] NSWCCA 214. The lead judgment in KMJ was that of Evans J, with whom Blow J (as he then was) and Tennent J agreed. His Honour reviewed the authorities including Shamouil and Sood and said at [30]:

"These authorities show that, subject to the qualification referred to in Shamouil, par[63], counsel for the respondent is correct in submitting that recent authorities which have addressed the issue of the propriety of considering the reliability and credibility of evidence when determining its probative value for the purposes of ss135 or 137 (as well as ss97(1)(b), 98(1)(b), and 101(2)), have concluded that these considerations are irrelevant to that assessment."

43 In R v XY [2013] NSWCCA 121 the New South Wales Court of Criminal Appeal was invited to reconsider the reasoning in Shamouil in light of the apparently conflicting approach adopted by the Victorian Court of Appeal in Dupas v R [2012] VSCA 328. In doing so it convened a bench of five justices but confirmed the approach it had previously adopted. Although I am faced with the apparently conflicting approaches adopted by the intermediate appellate courts in New South Wales and Victoria I am bound to follow KMJ and other decisions of single judges in Tasmania who have followed that line of authority since then.

44 Tendency evidence has "significant probative value" if it has more than "mere relevance", or if it is "important" or "of consequence", though it need not have a "substantial" degree of relevance: Tasmania v W (No 2) (supra), R v Lockyer (1996) 89 A Crim R 457, per Hunt CJ at CL at 459; L v Tasmania [2006] TASSC 59; (2006) 15 Tas R 381 at [31].

45 A significant factor in assessment of the strength of tendency evidence is the degree of similarity between the conduct on the occasions relied on. See FB v R (supra) at [28] - [30], BP v R; R v BP [2010] NSWCCA 303 at [108] and R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 at [57] - [60]. In R v Ford [2009] NSWCCA 306, Campbell JA (with whom Howie and Rothman JJ agreed) said at [125]:

"In my view there is no need for there to be a "striking pattern of similarity between the incidents". All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged."

46 In BP v R; R v BP (supra), Hodgson JA (with whom Price and Fullerton JJ agreed) stated at [108]:

"It is not necessary in criminal cases that the incidents relied on as evidence of the tendency be closely similar to the circumstances of the alleged offence, or that the tendency be a tendency to act in a way (or to have a state of mind) that is closely similar to the act or state of mind alleged against the accused; or that there be a striking pattern of similarity between the incidents relied on and what is alleged against the accused (citations omitted). However, generally the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value."

47 I have no hesitation in concluding that the evidence of the other complainants has, in each case, significant probative value as to each of the other counts. It is capable of rationally affecting the probability of whether the accused committed the acts alleged in the indictment. And, assuming it is accepted, would do so to a significant extent. That probative value arises principally from the similarities between the crimes. There is a considerable degree of overlap between the similarities in this context and the factors that persuaded me that the counts on the indictment amount to a "series of crimes of a similar character". Those factors include:

• each involves a young male aged between 12 and 16;

• in each case the opportunity to offend arose from an offer of paid work at the home of the accused;

• all involve a similar method of engaging with the boys using alcohol and/or cannabis to decrease inhibition, games of chess, sexually interesting images and discussion of sexual interest in young girls to prompt conversation of a sexual nature;

• all involve the common use of showering, either the accused or the complainant, to create a situation of sexual opportunity;

• all include sexual conduct at the home of the accused, and most commonly on or near the couch in the living room;

• the strong similarity between the nature of the sexual conduct in the case of X and Y involving oral sex, masturbation and mutual masturbation. There is similarity in the conduct involving Z to the extent that it involves the accused openly masturbating, encouraging Z to openly masturbate and attempting to masturbate Z.

48 The Crown also intends to adduce evidence of tendency at the trial from another witness, L. The evidence concerns uncharged conduct. L gave evidence at the voir dire. He grew up in the area where the accused lived. He is now 29. He said that in about 2001, although he was not sure of the year, he was preparing for his Year 10 High School Ball. He did not own a suit. The accused was known to his father and offered to lend him a suit. Arrangements were made for him to go the home of the accused to try one on. His father drove him there but then left, indicating he would pick him up later. L said he tried on suits near the wardrobe in the accused's bedroom. He said that the accused attempted to remove a mark on the suit trousers he was trying on and wiped it with a cloth for longer than L thought was necessary and after the mark was gone. The rubbing took place near the trouser zip but there was no contact with his penis. Afterwards the accused took some of his clothes off, got into bed and "asked me to join him". L said that he said he "wasn't tired" and turned his back on the accused. He told no-one about this until he saw Y, who he knew, at a party in 2012. He was asked by Y whether anything had ever happened to him concerning the accused. When he said yes he gave no detail but was contacted by the police a few days later. His police statement was made on 23 July 2012.

49 I tend to the view that the evidence concerning the trouser wiping does not meet the test of relevance in s55 of the Evidence Act. I would regard the evidence of the invitation into bed as relevant in that it has some probative value. It demonstrates a sexual interest in young males and a preparedness to take an opportunity to act on it in his own home. However it bears so little similarity to the conduct directed toward the complainants that I would not regard it as significant. If I were wrong about that I would consider that the risk of prejudice arising from the jury using that evidence in an illogical and irrational way would not be outweighed by the probative value. However the trial judge may have a different view and it is unnecessary for me to decide the question for the purposes of the severance application as to which the cross-admissibility of the charged conduct is the determinative issue.

50 I have a similar view about the evidence of tendency adduced by the Crown from M. Her evidence was called principally on the question of concoction and contamination to which I will refer later. However she also gave evidence that when visiting her house in the late 80s and 90s the accused exhibited sexual conduct. She said he would enter her house uninvited and push his groin against her. She also said that on several occasions, when they were sitting outside on her porch drinking coffee, he "would sit close to me and get his penis out and start to masturbate". She said that when this happened she became angry and asked him to leave.

51 I have some doubt that this evidence is relevant. By reference to the categories of conduct referred to in the tendency notice it relates only to a tendency to openly masturbate in the presence of others. I do not regard it as having significant probative value and that, in any event, the risk of prejudice arising from the jury using that evidence in an illogical and irrational way would not be outweighed by the probative value. Again, however, it is unnecessary for me to decide for the purposes of the severance application.

52 Tendency evidence may not be used "unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant": s101(2). What amounts to "unfair prejudice" under s137 was considered by the Court of Criminal Appeal in KMJ (supra); see Evans J at [36] - [38]. The possibility of prejudicial effect with which s101(2) is concerned is the possibility that the jury will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue, for example by giving effect to some irrational, emotional or illogical response or giving the evidence more weight than it truly deserves: Tasmania v W (No 2) (supra) at [11], Tasmania v Martin (No 2) (supra) at [63].

53 Having determined that the evidence has significant probative value, I must balance the probative value against the risk of prejudice to the accused. It is a balancing exercise that is to be conducted on the facts of each case requiring the court to exercise a judgment; R v Ellis [2003] NSWLR 700. Appropriate directions may be given to a jury guarding against the misuse of evidence adversely to the accused. Directions emphasising the need for separate consideration of counts and improper use of tendency evidence are commonly given to juries. The principal issue raised by the accused in this instance is the prospect of concoction or contamination.

54 Concoction includes cases where the complainants have possibly got together to concoct an account, and also cases where one complainant has possibly concocted evidence after becoming aware of the account of another complainant. See Tasmania v S [2004] TASSC 84 per Underwood J (as he then was) who referred also to BRS v R [1997] HCA 47; (1997) 191 CLR 275 at 301; P v R (supra). Contamination occurs when the memory of an honest witness is made inaccurate as a result of exposure to information concerning another complainant; Tasmania v L [2004] TASSC 86 at par[17]. The focus of an enquiry as to concoction is on the factual (as distinct from theoretical) possibility of concoction, R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433 at 447.

55 There has been some consideration of how the issue of the possibility of concoction or contamination is relevant in determining the admissibility of tendency and coincidence evidence. A series of Tasmanian cases considered the prospect of concoction in assessment of the probative value of the evidence. See Tasmania v S (supra), L v Tasmania [2006] TASSC 59; (2006) 15 Tas R 381, Tasmania v B [2006] TASSC 110 and Tasmania v Y [2007] TASSC 112.

56 Leaving aside for a moment the importance attributed to the prospect of concoction, it seems to me that such an approach is now to be regarded as inconsistent with KMJ (supra). In KMJ Evans J, although he followed Shamouil (supra), expressed some difficulty with excluding the possibility of concoction from consideration of probative value, but did not find it necessary to determine the issue. At [34] his Honour said:

"... in my respectful view, this Court should adopt the effect given to the term 'probative value' in Shamouil, pars[60] - [65], unless convinced that it is plainly wrong. I am not so convinced, although I confess that I have some difficulty in divorcing considerations of reliability and credibility from an assessment of the probative value of evidence. An aspect of my difficulty relates to the regard that should be had to the possibility of concoction when considering the admissibility of similar fact evidence from several witnesses. With reference to this question, in AE v R [2008] NSWCCA 52, Bell JA, Hume and Latham JJ, at par[44], said, 'it was not an error to consider the possibility of joint concoction in assessing the probative value of the evidence'. PNJ v DPP [2010] VSCA 88 is an authority to the same effect. In that case Maxwell P, Buchanan and Bongiorno JJA, at pars[24] to [29], addressed the proposition that it had been an error for the trial judge to consider the possibility of concoction when deciding whether evidence had significant probative value. They said at par[28], 'It is, in our view, not only appropriate but necessary for a judge to consider whether, on the material before the Court, there can be seen to be such a possibility. Whether and to what extent such a possibility affects the probative value of the evidence relied on will be a matter for the judge to decide'."

57 Blow J commented in KMJ at [42] that "It may be necessary to consider on another occasion what impact this conclusion has in relation to the cases in which, when assessing the probative value of evidence pursuant to the uniform evidence legislation, courts have taken into account the fact that the possibility of concoction has affected the reliability of such evidence".

58 Blow J returned to the question in Tasmania v W [2012] TASSC 47. He concluded that the issue of concoction or contamination was to be assessed not when considering probative value but when considering the risk of prejudice. At [7] he said:

"It is interesting to see how the New South Wales Court of Criminal Appeal has dealt with concoction issues in cases of this nature since Shamouil. Obviously it would be inconsistent with Shamouil for a possibility of concoction or contamination to be treated as relevant to the probative value of evidence. In FB v R [2011] NSWCCA 217, that court proceeded on the basis that concoction and contamination were relevant not to the probative value of evidence, but to the risk of unfair prejudice. The principal judgment in that case was delivered by Whealy JA, with whom Buddin and Harrison JJ agreed. At pars[32] - [45], his Honour referred to what Gleeson CJ said in HML, referred to a number of other authorities, proceeded to evaluate the evidence relevant to concoction and contamination, and reached a conclusion that it did not give rise to 'the prejudice of which the section speaks'. In my view I am obliged to follow that case."

59 In Tasmania v S (supra) Underwood J considered that the possibility of concoction to be also relevant to the balancing exercise required by s101. His Honour quoted with approval the following passage from the decision of Ambrose J in R v Robertson (1997) 91 A Crim R 388 at 409:

"In the majority judgment in Hoch at p297 it is observed that in some cases a judge who must rule upon admissibility of similar fact evidence might require an examination on voir dire to ascertain:

'the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction.'

To my mind this language implies that the trial judge may use the same sort of commonsense and experience in determining that question as used in the practice reflected in Ananthanarayanan and Ryder. 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 and Youngson will perhaps be a compelling indication of the determination required."

60 The decision of Underwood J in S was applied by Porter J in Tasmania v McLean [2008] TASSC 57. I do not go so far as to say that the tendency evidence must be excluded "if the Crown fails to exclude the reasonable possibility of concoction on the part of the proposed witness or witnesses". Underwood J adopted with approval the passage to that effect in the reasons for judgment of Simpson J in R v OGD (No 2) (supra) at [50]. It seems to me that there is little difference between that approach and the "no rational inference" test applied in Hoch v R (supra) which, it is now settled, does not apply to the Evidence Act provisions. See R v Ellis (supra) and FB v R (supra). In that latter case the court considered at [35] that "there must be a real chance, rather than a merely speculative chance, of concoction".

61 What is clear however is that the prospect of concoction weighs heavily in the balancing exercise required under s101(2). Whilst ultimately, if the evidence is admitted, the question of concoction or contamination will be a matter for the jury, it is appropriate for me in determining the admissibility of the evidence to make my own assessment as to the degree of likelihood of concoction or contamination and, in doing so, to, if necessary, make findings of fact. There is no reason in principle why an assessment of the credibility or reliability of a complainant should not be made for the purpose of such a finding of fact: Tasmania v W (No 2) (supra).

Assessment of the degree of likelihood of concoction or contamination

62 Each of the complainants gave evidence on the voir dire. Each gave evidence about the date they made statements to the police and were cross examined about the statements. In addition I have been given, as part of the Crown papers, copies of the police statements made by each of the complainants and M about which the witnesses were cross-examined. The statements are not in evidence on the voir dire but counsel for the accused referred to them in his submissions assuming I would refer to them. He acknowledged, and I would infer from the evidence of the witnesses, that the allegations generally follow the police statements, so, he submitted, "it's the contamination before that time that we have to focus on". That is so because any joint concoction, for the most part at least, could only have taken place before the detailed allegations were recorded in the statements. Each complainant gave evidence that until recently they had told no-one about the accused's conduct. Various reasons for the absence of complaint were given.

63 According to the evidence given on the voir dire the first disclosure made to anyone about the conduct of the accused was when X told his wife in November 2011 that he had engaged in oral sex with the accused. He said that he had not told anyone before that because he was a willing participant in sexual conduct with the accused - he "enjoyed it". Even so, he felt some guilt about what he had done and did not want to tell anyone about it. He did not feel that he needed to tell anyone and "didn't want anybody creating impressions of me" [sic]. He left home at 16 and after that visited only occasionally. After he told his wife she urged him to tell his mother. Within a day or two X told his mother that he had been sexually abused by the accused when he was younger, but did not disclose any details. He made a statement to the police on 2 January 2012. He said that before making his statement he did not speak with either of his brothers. He said he had not spoken to Z since Y's wedding in 2008. He said he had not really spoken to Y for a number of years, and although he had spoken to Y since making his statement, he did not tell him any details of what had happened to him. He said however that Y had told him that, on one occasion at the accused's house, the accused had "tried to insert Y's penis into H and that H thought it was [the accused]". During examination-in-chief X was asked whether he had become aware, between November 2011 and January 2012, of any other allegations of sexual abuse against the accused. He answered that he "became aware that there was [sic] numerous children that grew up in my community that had been abused by [the accused]". He said that he had become aware from information given by the police "via my mother", and from approaches of others in the community. However his further answers raise a doubt about whether this took place before or after he made his police statement.

64 During cross-examination X agreed that, about a month after he first told his mother about the accused, his mother told him that Y had revealed to his psychologist that he had been abused by the accused. He also said that he had believed for years that "Z had been involved with [the accused] since he was 14 years old".

65 M gave evidence that the first she learned of any allegation against the accused was from X. In November 2011 she intended to take X's wife to see her psychologist to assist her with problems she was experiencing in her relationship with X. X did not agree and asked his mother if he could speak with her. They met later that day and he told her, "You're not going to like ... it ... Mum, [the accused] fucked me, I've had his penis in my mouth." He told her that he did not want her to do anything or tell anyone. She said that X asked her to ask her son Z "if anything had happened to him" because he felt "concerned" about that. She said that X said he was not concerned about Y because "Y was too tough, he'd punch anyone in the face that did anything like that to him ...".

66 As a result of the conversation with X, M spoke to Z. She conceded in cross-examination that she could not recall the details of the conversation, but the substance of her evidence was this. She told Z that "[the accused] sexually abused X between the ages of 13 and 15", without elaborating further. He responded, "I totally believe X Mum". When she asked Z whether anything had happened to him he said, "Yes, I don't think it might've been as serious as what happened to X". He said that "[the accused] used to get his porno magazines out and masturbate in front of me and try to encourage me to do the same but I wasn't into that sort of thing".

67 M said that she phoned Y and spoke to him after these conversations. She disclosed that his brothers had disclosed that "something happened to them when they were children around 13" and asked if anything had happened to him. He replied, "no, nothing happened to me". However a few days later he rang her for advice about whether he could tell the psychologist he was then seeing for anxiety and panic attacks "anything" and she answered that he could. A couple of weeks later they met for dinner at a hotel. During that evening he disclosed that "[the accused] had sexually abused him as a boy and directed H to do certain things". Y told her that "[the accused] had forced him to walk towards H who had her back to him and pushed him up against her and then he told H to go in and take her clothes off and put some revealing lingerie on and he told H to perform oral sex on Y". No more details were given on that night but M said that later Y "alluded to other things that happened" but she could not recall any specifics.

68 According to M, her son Z gave her no further details of what happened to him until October 2012 when he told her about the occasion on which the accused massaged his kidneys.

69 M maintained that she had not otherwise told any of the things told to her by her sons to their brothers.

70 Y's evidence is he told no-one about the conduct of the accused towards him until he disclosed it to his psychologist in early December 2011. About a week or so before that his mother had asked him during a phone conversation whether the accused had done anything to him as a child, and he told her that he had not. He asked his mother why she was asking and she told him that there was information that "[the accused] had an interest in young boys" but she was "not referring to anyone he knew". She rang back not long afterwards and asked him the same thing again but, before he had the chance to answer, she dismissed the possibility because "he was too big and strong and ... wouldn't have let something like that happen to you". It was shortly after that that Y told his psychologist.

71 Y discussed the matter again with his mother within the following two weeks. They had arranged to meet at a hotel for an evening meal. She raised the subject and he told her that "something had happened when he was a child". She became upset. They left and continued the conversation while they were driving. He said that he "picked up at this stage that she was referring to my older brother" and she told him that his older brother had been "raped quite regularly by [the accused]". When he asked what this meant she told him that he had been "fucked up the arse". She asked Y what had happened to him and he said he "tried to minimalise it", telling her it was a "one off occasion with H and a fair few occasions with [the accused] that were oral sex and he masturbated me, and sort of left it at that".

72 Y made a statement to the police on 19 December 2011. He agreed that he was accompanied to the police interview by his general practitioner who, by then, had been informed by someone of allegations of sexual assault against the accused.

73 In examination-in-chief Y was asked whether, after the disclosure to his mother, and before making his police statement, he had spoken to either of his brothers. He initially answered no, but then said that he may have spoken to Z "at some stage" but not in any detail. He also said that since that conversation with his mother he had not told her any more details of what happened to him, and he had not been told any more about what happened to X. He had not, he said, been told anything about what may have happened to Z. When cross-examined he agreed that he had phoned his younger brother Z and told him that "[the accused] and H had done things to me". Although he said he did not go into detail, he agreed that Z was also talking about allegations of sexual assault against the accused. Z agreed with the proposition that he "certainly made it clear that he was talking about the same kinds of things that you were talking about" and he asked him to come to Tasmania to "corroborate the kinds of things you were saying". He could not recall picking Z up from the airport or discussing the matter with him during any journey between the airport and the police station.

74 Y said that he knew his brother X was a cannabis user but did not discuss with him where he got his cannabis from. He did not know his younger brother Z used cannabis. Y said that he moved out of home by the time Z was 13.

75 Z has, since late 2009, lived in New South Wales. Before December 2011 he told no-one, including his brothers, about the conduct of the accused towards him. He said he had not talked to his brothers about being supplied cannabis or alcohol by the accused. He said that X had left home "when [Z] was about 13" and he did not know, until much later, that X had ever worked for the accused. He did not know that Y had worked for the accused until after he became aware that the accused was to be charged with sexual misconduct towards Y. He assumed that Y must have done so because in some way the work was connected with sexual conduct. He did not speak to anyone about the conduct of the accused towards his brothers until he was phoned by his mother at the end of 2011. She told him that "something serious" had happened between the accused and his brother X. She asked if anything had happened to him and he replied, "yes". She asked if he would come to Tasmania to make a statement about it. He agreed. He said he was collected from the airport by Y. Z said that in the car they discussed whether something did happen to each of them, but apart from them both saying "yes", no more details were spoken about. Since making his statement he has discussed nothing more with either of his brothers or his mother, and has been told no details of what may have happened to his brothers.

76 I regard the prospect of contamination of evidence in this case as being remote and I would discount it. The degree of detail given by each witness of the events concerning the accused seems to me to exclude the possibility that the account of one or more of them is honest but inaccurate because of something they have been told by others.

77 The main issue for determination is whether there is a real chance that the witnesses have jointly concocted a false account. I should bear in mind that if it is the case that the evidence of each complainant about the accused's conduct is concocted, then it is also likely that their evidence about the opportunity for concoction is also false. In assessing the degree of likelihood of concoction, the evidence of each of the witnesses X, Y, Z and M should be assessed both individually and collectively. The relationship between each of them would ordinarily give the opportunity for concoction. However for the following reasons I have concluded that there is no real chance that they did so.

78 With one possible exception there is no evidence of a motive to concoct a false account against the accused. It was impliedly suggested to the oldest brother, X, during his cross-examination, that he had he proffered the sexual abuse by the accused as an explanation or excuse for his own recent behaviour towards his wife. He denied that this was the case. I regard it as possible that X did raise the accused's conduct in the context suggested but, in light of all the evidence it does not persuade me that it establishes a real chance of concoction.

79 Each of the witnesses presented differently but I formed the impression that each of them gave an honest account, both as to the criminal acts and as to the question of concoction. Y and Z in particular gave evidence in a measured and controlled way. They adhered to their evidence during cross-examination and there were no obvious internal inconsistencies. It emerged from the evidence of Y that he was undergoing psychological counselling but it was not suggested to him, nor did I form the impression, that the reliability of his evidence was affected by the state of his mental health. X tended to give his evidence in a more emotional way. He conceded, and it was confirmed by the evidence of his mother, that he is a troubled individual. He suggested a long-standing issue with abuse of alcohol and relationship problems with his wife. But again, I did not form the impression that he was an unreliable witness. The evidence of their mother, M, went principally to the issue of concoction. I formed the impression that she was an honest and sincere witness.

80 Each of X, Y and Z made appropriate concessions during cross-examination. For example each conceded that the accused desisted from unwanted conduct when requested to do so. None gave me the impression that they were exaggerating or embellishing their account. The extent of the sexual conduct of the accused described by Z was of a similar nature but less serious than that described by his older brothers. X readily conceded his willingness at the time to participate in the sexual conduct. I formed the same impression of M; her evidence had a ring of truth. If the evidence about how the allegations emerged is accepted, then the opportunity for concoction was limited and inconsistent with either the witnesses putting their heads together to concoct a false story, or one or more deciding to concoct a false story to support the other. For example:

(a) although the complainants are brothers the contact between them at the relevant time was limited. X and Y were not close and both left home at a young age and before Z was 13. X and Y have not spoken since 2008. Since 2009 Z has lived in New South Wales;

(b) each had a plausible and convincing explanation for why disclosure of the accused's conduct did not occur. There is no evidence from which I would infer, if a plan to concoct a story was made some time ago, why it might have taken until 2011 for it to be advanced;

(c) the nature of the limited discussions between the brothers and their mother, particularly between the time of the first disclosure and the making of the police statements, does not account, in my view, for the level of detail in the statements made to the police and the evidence given on the voir dire. The first disclosure was to M by X in November 2011. At that time Z was in New South Wales. I believe M's account of how X initially denied that there was any conduct of the accused directed towards him. It is consistent with her account of how upset she was when he told her otherwise. I also believe M's account that she gave only limited information about what she had been told by each of her sons to the other. Even if she may have conveyed more information than she believed, that does not account for the level of detail given by each complainant to the police;

(d) there is some inconsistency in the evidence of Z and Y about whether Y drove Z from the airport to the police station. Y could not recall doing so. However I accept the evidence of Z that only limited information was exchanged, again wholly inconsistent with the detailed nature of the information given by Z to the police.

81 The striking feature of the evidence of the complainants was the detailed nature of the description of the conduct of the accused towards each of them, particularly the conduct concerned with the constituent crimes for each count. The descriptions included similarities in the evidence of all of them, but the evidence also disclosed differences in detail. Some similarities concerning collateral matters, for example the accused's agreement to desist from unwanted conduct, emerged only during cross examination when there would have been no reasonable opportunity for the complainants to concoct a joint approach. Each described not only the criminal acts but the circumstances surrounding the criminal acts in such a way as to persuade me that the only rational explanation for the evidence is that the acts charged occurred, rather than that the similarities arose from a common cause of some kind between the witnesses. It is possible also that information about the accused's acts towards other complainants may have come through others, such as the police or a medical practitioner, or some other member of the community. However whilst there may have been general information about the sexual nature of the allegations, that does not account for the detailed accounts of each complainant. That could only have arisen, in my view, by deliberate fabrication as between the complainants themselves which, for reasons I have given, I exclude as a reasonable possibility.

• each count on the indictment forms part of a series of crimes of the same or similar character, and thus may be included on the same indictment;

• the evidence of tendency is of significant probative value and the probative value of the evidence will substantially outweigh any prejudicial effect on the accused. Thus the accused will not be prejudiced or embarrassed in any relevant sense by the three counts being on the same indictment, because the evidence on each count is admissible on the trial of the other.

83 The application to sever the indictment is dismissed.

84 These reasons were published to the parties on 24 July 2013. Since then the trial of L has been conducted before the learned Chief Justice. At par[49] of these reasons I expressed a view about the admissibility of the evidence of the witness L. In the course of the trial his Honour ruled that the evidence of L was admissible as tendency evidence.