Criminal Law - Evidence - Propensity, tendency and co-incidence - Admissibility and relevancy - Tendency and co-incidence evidence under uniform evidence law - Other cases - Tendency to have sexual interest in young girls.

Evidence Act 2001 (Tas), ss97(1), 98(1), 101(2).

R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286; R v PWD [2010] NSWCCA 209; BP v R [2010] NSWCCA 303; FB v R [2011] NSWCCA 217, followed.

Judgment Number: [2012] TASSC 48

1 The accused has been indicted on two charges of maintaining a sexual relationship with a young person under the age of 17 years. His counsel has applied under the Criminal Code, s326(3), for an order that there be a separate trial of each of the two counts.

2 When an indictment alleges more than one sexual crime, involving more than one complainant, separate trials should be ordered unless there is a good reason to the contrary: Sutton v R [1984] HCA 5; (1984) 152 CLR 528; De Jesus v R [1986] HCA 65; (1986) 61 ALJR 1; KRM v R [2001] HCA 11; (2001) 206 CLR 221 at par[38]. In this case the Crown contends that the indictment should not be severed because the evidence of each complainant is relevant and admissible in relation to the charge concerning the other complainant. The Crown contends that the complainants' evidence is cross-admissible in accordance with the tendency rule and the coincidence rule in the Evidence Act 2001, ss97 and 98. The accused disputes this.

3 The two complainants and three other witnesses gave evidence before me on the voir dire for the purposes of the severance application. It was also agreed between counsel that I may have regard to a transcript of a police interview with the accused that the Crown will rely upon at the trial or trials.

4 Count 1 on the indictment relates to the accused's stepdaughter ("A"). That count alleges that he committed the crime charged between about 5 May 2006 and about 30 April 2008. A lived with her mother, the accused, and other family members for most of that period. The complainant to whom count 2 relates ("B") stayed with the family as a visitor for several weeks in the winter of 2006. Count 2 alleges that the accused committed the crime charged during that period.

5 A gave evidence on the voir dire of the following conduct on the part of the accused:

• During B's visit, she and B used to dance in the presence of the accused. Copying a dancing manoeuvre in a movie, they would jump up, wrap their legs around his waist, and lean back. Sometimes they would then do a reverse somersault and land on their feet. Otherwise they would return to an upright position and land on their feet. The accused used to tell them to jump up if they loved him.
• A, her brother ("C"), and B used to play a game with the accused in the kitchen at night. The playing of this game continued after B's visit. One of them would turn the lights off. One of the three children might poke the accused's back and meow like a wild cat. The accused would get up and chase them, or try to find them in the dark. When he found A in the dark, at first he would put his hands on her chest, outside her clothes. On later occasions, he touched her on the chest under her clothing. On later occasions, he touched the area of her vagina, outside her underwear. On later occasions, only after B's visit, he touched her vagina, inside her underwear. She used to scream out for C or B to turn the lights on. They would turn them on. The accused would then let go of her. Her mother would be in the lounge room on these occasions.
• On the last occasion that the accused touched her in the kitchen at night with the lights off, he touched her on her vagina, under her underwear. She said, "... he was playing with my flaps". She said he was "pulling at them". She said his fingers felt as if they were about to go inside of her.
• Her mother had a substance that she described as "a body lolly, like a liquid gel sort or thing". The accused used to put that substance on her nipples and lick it off. She saw him do this to B as well. This used to happen in the kitchen. This happened three or four times. It did not happen before B came to visit. The first occasion was in the day time, when they were in the kitchen. The accused told them "not to tell Mum because she would get angry that we were using her stuff".
• Sometimes when she was lying on a couch in the kitchen at night, after her mother had gone to bed, the accused would gently rub the back of her legs. He would rub his fingertips along the surface of her skin, making his way slowly from the back of her calf to the back of her knee, and then to the upper part of her leg, to the very top. He would pull the bottom of her pants up a bit. After a few times she used to get up after he got above her knees, and say that she was going to bed.
• There was one night when her mother was absent from the family home. On that night she slept on a mattress on the kitchen floor, and B slept on the couch in the kitchen. She woke up during the night and saw the accused's arm around B. B looked "a bit uncomfortable, sad or scared or something".
• Subsequently there was a time when she, B, the accused, and other family members stayed in a caravan park. There were separate showers for men and women. On one occasion the accused came into the women's showers, saying that the hot water was not working in the men's showers. There was a line of showers, separated by partitions, with gaps below the partitions. She and B slid into the accused's shower cubicle, and did the dance that they used to do at the family's home. The accused said to "jump up if you love me". She and B jumped up and put their legs around him. He was wearing underwear. That happened about three times.

6 B gave evidence on the voir dire of the following conduct on the part of the accused:

• She and A used to dance in the presence of the accused. Copying a dancing manoeuvre in a movie, they would jump onto his hips. They would put their legs around his hips and he would hold them up. Sometimes they would cartwheel backwards. They would lift their shirts up. In B's words, "He said if we showed our tits we'd get bonus points." He said, "If you don't jump up you don't love me."
• She and A used to play a game with the accused in the kitchen at night. Nobody else was ever involved in that game. It involved turning the lights on and off. The accused would come and find them, go to grab them, and say, "I found you." Sometimes his hand would touch her on the breasts, over her clothes. There was also touching between her legs. She could not remember whether there was any touching under her clothes. She thought A's mother might have been in the lounge when this game was played.
• More than once, the accused put strawberry and chocolate body drops on her breasts and A's breasts, and licked them off. This happened in the kitchen when both girls were present. She saw the accused do this to A on those occasions.
• There was one night when A's mother was absent from the house. On that night she slept in the lounge on the couch, and A slept on the floor. The accused came into the room, sat at her feet, started touching her lower legs softly, and moved his hand up to a position between her legs, touching her over her clothes at first. He put his hand down her pants and touched her vagina. She moved away because it felt uncomfortable. She felt his finger inside her vagina. Her legs were slightly open. The accused put his head between her legs. She "could feel as if he was breathing on it or nibbling it".
• There was an occasion when the accused showered in the same shower block at the caravan park as A and B. A joined B in B's cubicle, and left again. Then B heard the accused say, "Jump up. If you don't jump up you don't love me." B went into A's cubicle, and then into the accused's cubicle, where he said the same thing. She jumped up. The accused grabbed her, and held her up. He was wearing red underwear and nothing else. She was wearing a bra and knickers. The accused held his hands under her bottom. She tried to jump down. He slid her down his body. When he did that, she could feel his penis. She went back to showering in her own cubicle.
• On another occasion the accused touched her vagina in a bunk room at the caravan park. There were three sets of bunks in the room. B could feel his fingers inside her vagina. It felt uncomfortable, so she moved. A's mother was not there.
  • On a second occasion in the bunk room, the accused touched B on the vagina when she was in bed. He said he was going to check her blankets, and did. He put his hands down her pants and touched her on the vagina. He then went to check A. A's mother was in the room.

7 A's brother, C, gave some evidence on the voir dire as to the conduct of the accused, as follows:

• There was some dancing by A and B that involved them jumping up and putting their legs around the waist of the accused. Points would be given for the dancing. They got bonus points if they lifted their shirts up. They did not always have bras on.
• Sometimes, during games in the kitchen at night, he would turn the light on and see the accused holding A. A would walk out and go to her room.
• One night he got up, went into the kitchen to get a drink, and saw the accused holding A's shirt up. He said that he was going to tell his mother that they were doing this, but the accused said he would not take him fishing any more if he told her.
• Once at the caravan park he heard the accused, in the girls' showers, say, "Jump up. You don't love me." One of the girls, either A or B, was in the shower with the accused.

8 A had a teenage male friend ("D"). He lived in another State. She used to speak to him by telephone. He gave evidence on the voir dire about a phone conversation at some time in the vicinity of March to June 2008. He said that A told him in that conversation that she and her stepfather were playing a game of hide and seek which involved turning the lights off at night, and that he was "turning the lights off and sitting on her and touching her on her upper chest". Assuming that this evidence is accepted, it seems to me that it should be inferred that the asserted facts were fresh in the memory of A when she told D these things. It follows that D's evidence would be admissible under the Evidence Act, s66(2), as evidence of the truth of A's assertions.

9 The accused made some limited admissions in the course of his interview by police officers, as follows:

• He spoke of the children playing games with him in the kitchen. He said that there was no way he had intentionally "touched" B and that, if he did so unintentionally, he was sorry. That is to say, he conceded that he might unintentionally have touched B inappropriately. He explained that there were times when he had to grab the girls in the dark.
• He admitted rubbing A's legs and feet on the lounge, but said that he did this when she asked him to.
• He denied ever entering the women's showers in the caravan park, but said that A and B would sneak into the men's showers, fully undress in another shower cubicle, and pop up in his shower, where he would be naked. They would jump up onto him. He said this was a worry for him because they were fully naked. He said that there were no "erect penises or touchy feely".

The significance of the evidence as tendency and coincidence evidence

10 Each of the two charges on the indictment is a charge under the Criminal Code, s125A(2). The Crown bears the burden of proving, in relation to each charge, that the accused committed unlawful sexual acts in relation to the relevant complainant on at least three occasions. As to A, the Crown contends that the accused indecently assaulted her during the games in the kitchen; that he committed the crime of aggravated sexual assault, contrary to s127A, on the last occasion that he touched her in the kitchen, in that he then penetrated her genitalia with his finger; that he indecently assaulted her by licking the gel substance from her nipples; and that the rubbing of her legs constituted an indecent assault. As to B, the Crown contends that the accused indecently assaulted her when he touched her during the games in the kitchen; that the licking of the "body drops" from her breasts amounted to a series of indecent assaults; that the accused committed an indecent assault when he slid her down his body in the shower block at the caravan park; and that he committed the crime of aggravated sexual assault by inserting his finger or fingers in her vagina on three identifiable occasions - on the night at the house when A's mother was absent, and on the two occasions in the bunk room.

11 The effect of the relevant provisions of the Evidence Act can be summarised as follows:

• Evidence that the accused 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, but only if the Court thinks that that evidence will have "significant probative value": s97(1)(b).
• Evidence that two or more events occurred can be admissible to prove that the accused did a particular act on the basis that, having regard to any similarities in the events and/or the circumstances in which they occurred, it is improbable that the events occurred coincidentally, but only if the Court thinks that that evidence will have "significant probative value": s98(1)(b).
• 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 Crown will be drawn: R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228; KMJ v Tasmania [2011] TASCCA 7; R v Sood [2007] NSWCCA 214.
  • Tendency evidence and coincidence 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: 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, per Underwood CJ, with whom Crawford J (as he then was) and Tennent J agreed, at par[31].
• Tendency evidence and coincidence 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).
  • "The possibility of prejudicial effect with which s101 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'": BP v R [2010] NSWCCA 303 at par[109], per Hodgson JA, with whom Price and Fullerton JJ agreed, citing R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 at par[116].

12 The Crown contends that the accused has a sexual interest in young girls and a tendency to act on that interest by indecently touching them as alleged, and a tendency to play games with them to allow that touching to occur.

13 There are a number of decisions of the New South Wales Court of Criminal Appeal which establish that, for tendency evidence to be admissible under s97, there does not have to be evidence of striking similarities between events or circumstances, or even of similar behaviour on different occasions. In R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286, the Director of Public Prosecutions was appealing against a judge's decision not to admit certain evidence as tendency evidence. At par[38], Campbell JA, with whom Howie and Rothman JJ agreed, said:

"The second flaw is the judge's apparent view that the tendency evidence must itself show a tendency to commit acts that are closely similar to those that constitute the crime with which a particular accused is charged. That is not so. All that a tendency need be, to fall within the chapeau to s 97(1), is 'a tendency to act in a particular way'."

"The Respondent accepts that the evidence in question has some probative value, but disputes that it has significant probative value. It submits that there is no striking pattern of similarity between the incidents. 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. In my view, it meets that test."

15 In R v PWD [2010] NSWCCA 209 at par[79], Beazley JA, with whom Buddin J and Barr AJ agreed, said:

"The authorities are clear that for evidence to be admissible under s 97 there does not have to be striking similarities, or even closely similar behaviour. By contrast, coincidence evidence is based upon similarities. Section 98 provides in terms that two or more events occurring is not admissible to prove that a person did a particular act, on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless, the evidence has significant probative value." [Original emphasis.]

16 In BP v R (above), at pars[106] - [108], Hodgson JA said the following:

"106 Evidence with which s 97 is relevantly concerned is evidence that a person has a tendency to act in a particular way or have a particular state of mind; and the probative value of the evidence will depend both on its probative value in establishing the tendency and on the probative value of the tendency (if established) in relation to an issue in the case: R v Li [2003] NSWCCA 407 at [11], R v Cittadini [2008] NSWCCA 256; (2008) 189 A Crim R 492 at [22] - [23].

107 To be admissible as tendency evidence, the evidence must have significant probative value. It must be capable of rationally affecting the probability of the existence of a fact in issue to a significant extent, meaning (at least) an extent greater than required for mere relevance: Zaknic Pty Limited v Svelte Corporation Pty Limited [1995] FCA 1739; (1995) 61 FCR 171 at 175-6, R v Ford [2009] NSWCCA 306 at [50] and [51], R v PWD [2010] NSWCCA 209 at [66]. The question of probative value (and also the possibility of prejudicial effect) must be assessed having regard to the issues in the case: PWD at [63].

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 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: Ford at [38], [125], PWD at [64]-[65]. However, generally the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value."

17 These cases were followed in FB v R [2011] NSWCCA 217 by Whealy JA, with whom Buddin and Harrison JJ agreed, at pars[26] - [27].

18 In a "Notice of Tendency and/or Coincidence" served by the Crown, the Crown asserts that there were 13 relevant similarities between the accused's conduct relating to A and that relating to B. The similarities asserted, and my comments in relation to them, are as follows:

(b) The complainants were of a very similar age when the alleged offending occurred, being 11 or 12.

That is consistent with the evidence of the complainants' dates of birth.

(c) The complainants were related to the accused.

(d) The complainants were in his care and under his control.

From a legal perspective, A's mother was her parent and guardian whereas the accused, as her stepfather, was not. From a practical perspective, she was a member of his and her mother's household, and they were both responsible for her care and control. B had come to visit that household. The accused and A's mother were therefore responsible for her care and control.

(f) The complainants were licked on the chest and stomach.

There is no evidence that either of the complainants was licked on the stomach. A said only that the accused licked their nipples. B said only that he licked their breasts.

(g) The complainants were touched on the genitals.

(h) The accused penetrated both complainants' genitals with his finger.

B gave evidence of the accused penetrating her vagina, but A gave no such evidence. However the Crown contends that her evidence of the accused playing with her "flaps" and pulling at them amounts to evidence of the penetration of her genitalia.

(i) The complainants were touched in the presence of the other.

Presumably this was intended to assert that they were touched in the presence of each other.

(j) The complainants were touched in close proximity to [A's] mother and brothers.

The asserted significance of the proximity of A's mother and brothers is that, according to the evidence, the accused was not deterred by their close proximity, either when he indecently touched A or when he indecently touched B.

(k) The complainants were touched in the same locations, being the kitchen, the couch in the lounge room, and the showers in the caravan park.

Both complainants have said that they were indecently touched in the kitchen. A gave evidence of the accused touching her legs on a couch in the kitchen, whereas B gave evidence of an indecent touching on a couch in the lounge room on the night that A's mother was absent. Both have said that B slept on a couch that night, but A said that it was in the kitchen and B said that it was in the lounge. B gave evidence of an indecent act in the caravan park showers, but A did not.

(l) The accused played games with both complainants so that he could touch them indecently.

(m) The alleged criminal conduct escalated over time.

Both complainants have given evidence of indecent acts that got worse as time went on.

19 The Crown's notice contains no mention of the complainants lifting up their shirts or displaying their breasts to the accused. Subject to the Court's discretion under s100, that evidence may not be relied upon as tendency or coincidence evidence: ss97(1)(a), 98(1)(a). I will therefore proceed on the basis that the Crown does not seek to rely on that evidence as tendency or coincidence evidence.

20 In my view the evidence of the two complainants as to the matters listed in the Crown's notice, if accepted, would, as the Crown asserts, amount to evidence that the accused has or had a sexual interest in young girls, a tendency to act on that interest by indecently touching them as alleged, and a tendency to play games with them to allow that touching to occur. In my view the evidence of those tendencies has a strength that takes it beyond mere relevance. It is capable of rationally affecting the probability of the existence of the critical facts in issue in this case - the commission of unlawful sexual acts by the accused. Assuming that the evidence is accepted, I consider it will do so to a significant extent. That is to say, I consider that the tendency evidence will have significant probative value.

21 Counsel for the accused submitted that the evidence in question cannot amount to coincidence evidence admissible under s98, relying on the decision of Crawford J (as he then was) in Tasmania v Y [2007] TASSC 112. The Crown prosecutor submitted that there are many authorities that establish that the sort of evidence that was presented on the voir dire in this case can be admitted as coincidence evidence, including Tasmania v S [2004] TASSC 84, and PNJ v Director of Public Prosecutions (2010) 27 VR 146.

22 Because of the wording of s98, it is necessary to consider the evidence of the alleged sexual acts that form the basis of the charges separately from the evidence as to the surrounding circumstances. Both complainants say that they were indecently touched by the accused during games in the kitchen. Only A says that she was touched under her clothes. Only A says that the accused ever played with her genitalia. Only B alleges digital penetration of her vagina, and breathing or nibbling on the vagina. Each complainant alleges the licking of a substance from her nipples or breasts. Each complainant alleges that the accused rubbed her legs, starting with the lower legs and working upwards, but only B alleges that he proceeded to touch her vagina and penetrate her vagina on such occasions.

23 Both complainants described indecent touching in the kitchen, when A's mother was in the next room, ie the lounge. Only B described an indecent act on the night that A's mother was absent. Only B described an indecent assault in the caravan park showers. Only B described an indecent assault during dancing. Only B described indecent acts in the caravan park bunk room.

24 I do not think I need to consider the submissions of counsel relating to Tasmania v Y and the other authorities relating to coincidence evidence. Having regard to the similarities and dissimilarities in relation to the alleged events and the circumstances in which they allegedly occurred, particularly the dissimilarities, I am not satisfied that any of the evidence in question will have significant probative value as coincidence evidence.

25 Counsel for the accused submitted that there was a real possibility that the evidence of A and B was the product of concoction or contamination, with the result that the probative value of the evidence does not substantially outweigh the prejudicial effect that it may have on the accused.

26 The evidence as to the likelihood or otherwise of concoction or contamination can be summarised as follows:

• A kept a private journal, but did not write in it regularly. She made at least three entries relating to the accused touching her. One entry, which described games in the kitchen, concluded, "... he gets up and if he catches me or any of us he won't let go till the light is switched on. But when he catches me he touches me. I dunno if its axerdent or not but it makes me unconfie [sic]". Under that, A has written, "few nights later - He done it again tonight and the last few nights im not doing it anymore." At a later date A made an entry reading, "He touched me again, but this time it wasnt just my chest. He touched my privet [sic] part. I dont like this game."
• A gave evidence that during 2007 she told her friend D that the accused was "touching" her, and that it was making her uncomfortable. As I have said, D gave evidence on the voir dire that A told him that she and her stepfather were playing a game of hide and seek which involved turning the lights off at night, and that he was "turning the lights off and sitting on her and touching her on her upper chest". D said that he told her she needed to tell someone, and that she made him promise that he would not tell anyone. D's evidence was that this conversation was in about March to June 2008.
• After the end of B's visit in the winter of 2006, she and A had no contact with one another at all until late in 2008.
• A and her family moved to another address in April 2008. A few months after that move, A's mother initiated a conversation during which A said that the accused had touched her. A gave evidence that her mother asked if anything had happened to her, saying that she could turn to her for anything and not to keep secrets from her; that she told her that the accused had touched her in places that made her feel uncomfortable; and that her mother did not believe her. Her mother gave evidence that she asked A if anyone had ever made her feel uncomfortable or done things to her; that A told her that the accused had touched her breasts during the games they used to play; that A said, "Mum, I don't want this to affect your relationship"; that A assured her that the accused did not hurt her; and that she did not want to believe A.
• During July 2008 B made a complaint to police officers about another man. Her complaint included an allegation that the man had slapped her across the face. In September 2009 she told a police officer that that had not happened. Under cross-examination on the voir dire, she gave evidence that the slapping had happened; that her cousin had found out about it; that a feud between two families had resulted; and that, for her to keep the peace, she had to say that it never happened.
• When speaking to the police in July 2008 about that matter, B said that she was raped in 2006, but gave no details at all as to how, where, or by whom. On the voir dire, she gave evidence that she was then referring to the accused putting his fingers inside her vagina, and that she thought that "was classified as rape". B has lived most of her life in another State where the legal definition of "rape" has, since she was about 6 years old, included the digital penetration of the vagina. The conversation in July 2008 was with police officers from that State.
• A and B resumed contact with one another at the end of 2008. Soon after resuming contact, A went to stay overnight with B. At that time they had a conversation about the accused's conduct. A gave evidence that B asked her if anything had happened to her, started crying, and told her that the accused had touched her when they were staying in "the hotel" - apparently a reference to the caravan park. She said B did not go into a lot of detail. B's version of that conversation in her evidence-in-chief was to the effect that she and A told each other that the accused had "touched" them, and nothing more. Under cross-examination, she said she told A that something happened on the night that her mother was absent; that she asked A to promise not to tell her mother about that; and that she told A she had been to a particular police station about that incident - apparently a reference to the conversation in July 2008.
• A's mother picked her up from B's home at the end of that visit. They had a conversation in the car on the way home. A gave evidence that she told her mother what B had told her; that her mother asked if it had happened to her; and that she told her mother again that the accused had touched her. A's mother gave similar evidence as to this conversation.
• A's mother gave evidence that she phoned B when she arrived home with A on that day, and that B went into some detail during that conversation. She said she did not tell A what B told her.
• A's mother gave evidence that she went to see B the following day, without A, and talked with her about the accused's conduct.
• In 2009 A and B attended the same school until about June or July. Both gave evidence that they had very little to do with one another at that school.
• A's mother gave evidence to the effect that there were a lot of discussions within the family about the allegations concerning the accused in the time leading up to the reports to the police.
• A gave evidence that she told a school counsellor during 2009 about what the accused had done to her. The authorities were notified. A's mother gave evidence that she was asked to make an appointment and bring A to a police station, and that she was told she could bring B as well.
• Subsequently, on 5 May 2009, A's mother drove both A and B to a police station where each of them made detailed allegations as to nearly all of the matters described in their evidence. A's mother gave evidence that she went to the school to collect A to take her to the police station, saw B at the school gate, and took them both. B gave evidence that A and her mother were going to the police station, and that they invited her to come along.

27 The complainants and A's mother were cross-examined as to the sequence of events from the time A and B resumed contact at the end of 2008, leading up to their trip to the police station in May 2009. On many occasions they said they were unable to remember details. Counsel for the accused was able to elicit very little from A and B as to the circumstances that led them to travel to the police station together on 5 May 2009.

28 In submitting that there was a real possibility of concoction or contamination, counsel for the accused relied heavily on the evidence about the two complainants travelling to the police station together on the day they made their complaints. She also relied on the evidence that they had discussed the accused's conduct when A visited B at the end of 2008. She submitted that A's reports to her mother, and to D, prior to the trip to the police station were all consistent with the accused having only accidentally touched her in an inappropriate way. She argued that B's allegation of "rape" by the accused, made in July 2008, was inconsistent with her later allegations. She argued that there may have been innocent touching, which was exaggerated as a result of the two girls spending a weekend together at the end of 2008. She pointed out that there was no detail recorded as to what the complainants were alleging prior to their visit to the police.

29 I accept that the two complainants both knew that the purpose of their trip to the police station on 5 May 2009 was to complain of sexual assaults by the accused. I infer that B was waiting to be collected by A's mother and go on that journey as a result of a discussion with A about them both making complaints to the police about sexual assaults by the accused. There is no evidence as to the scope of their discussion or discussions.

30 When assessing the likelihood of concoction or contamination, it is appropriate to consider the complainants' relationship, their opportunities for concoction, and any possible motives for concoction: Hoch v R [1988] HCA 50; (1988) 165 CLR 292 at 297; BP v R (above) at par[111]. In my view it is extremely significant that nothing in the evidence suggests that either of these complainants had any possible motive for concocting or exaggerating allegations of sexual assault by the accused. There is no evidence that B saw him after the winter of 2006. The accused was very much a surrogate father to A. There was evidence that she did not wish to harm her mother's relationship with him, and that she therefore asked D not to tell her mother anything about her disclosure to him, for a long time refrained from telling her mother about her concerns about the accused touching her, and refrained from providing full details after her first disclosure to her mother. The two complainants had not been close since B's visit ended in the winter of 2006. A's journal entries strongly suggest sexual assaults, rather than accidental touching, and were made independently of B. B's complaint to a police officer of "rape" in July 2008 was made independently of A. The dissimilarities between their accounts as to what the accused did to them tends to suggest that those accounts were not the product of joint concoction.

31 In my view the evidence concerning the complainants' joint trip to the police station does not tend to suggest concoction. They knew each other. They had spent several weeks in the same household in the winter of 2006. They had discussed the events of those weeks. A had spoken to her school counsellor, with the result that the authorities were notified about her allegations. The evidence suggests that B had not spoken to a counsellor or the authorities. It is likely that A's discussions with her counsellor somehow resulted in the police learning that B had possibly been sexually assaulted by the accused, and being willing for A's mother to bring both girls to see them.

32 In the light of these matters, I am not satisfied that there is any more than a theoretical possibility that the complainants' allegations, or some of them, are the product of joint or unilateral concoction.

33 I think it even less likely that any of the allegations are the product of "contamination". That term refers to the phenomenon whereby a complainant makes an honest allegation about an act or event that did not occur, or attributes something that did occur to conduct on the part of a person who was not involved. There is nothing in the evidence about A or B to suggest that either of them might be mentally ill, delusional, unusually prone to suggestibility, or likely to have false memories. Nothing about their evidence or their behaviour or demeanour in the witness box suggests any such possibility.

34 I therefore conclude that the possibility of concoction and/or contamination is not so strong as to prevent the probative value of the tendency evidence from outweighing any prejudicial effect that it may have on the accused. If the jury is given the usual directions as to permissible and impermissible reasoning in relation to tendency evidence, there is no reason why there should be any significant risk of unfair prejudice to the accused. I therefore consider that the probative value of the tendency evidence will substantially outweigh any prejudicial effect that it may have on him.

35 I therefore conclude, on the basis of the evidence and material before me, that, at least generally speaking, the evidence of A and B will be cross-admissible as tendency evidence. That is a factor that weighs strongly against ordering separate trials of the two charges.

36 It is also significant that, if separate trials are ordered, A and B would both have to give evidence at both trials. Even if no tendency evidence or coincidence evidence were admitted, each of them would be called to give eye-witness evidence of the accused licking the gel or body drops from the other's breast or nipples, and evidence of the playing of games in the kitchen at night. A would be able to give evidence about her observations of B on the night when A's mother was absent from the home, and evidence of the accused's presence in the women's showers at the caravan park.

37 For these reasons, I think it is appropriate for the two charges to be tried together. The application for separate trials is refused.